- Federal Law Review

Transcription

FEDERAL LAW REVIEW
FACULTY OF LAW
THE AUSTRALIAN NATIONAL UNIVERSITY
This issue may be cited as
(2001) 29 F L Rev
The Dewey Decimal number of this volume is
347.05 FL Rev
ISSN 0067–205X
FEDERAL LAW REVIEW
EDITOR
ADRIENNE STONE
___________________________________________________________________________
ADVISORY BOARD
Professor Philip Alston, European University Institute, Florence
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Public Ethics, Charles Sturt University
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The Hon Justice Kenny, Court of Appeal (Victoria)
Professor G J Lindell, Faculty of Law, Melbourne University
Professor D N MacCormick, Faculty of Law, University of Edinburgh
Professor Kathleen Mahoney, University of Calgary
The Hon Sir Anthony Mason AC KBE, formerly Chief Justice, High Court of Australia
The Hon Justice JA Miles AO, Chief Justice of the Supreme Court of the ACT
Professor Dennis Pearce, Faculty of Law, The Australian National University
Ms Hilary Penfold, First Parliamentary Counsel, Canberra
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VOLUME 29
NUMBER 2
________________________________________________________________
ARTICLES
Property and the Drafting of the Australian Constitution
SIMON EVANS
121
Commonwealth Immunity as a Constitutional Implication
CATHERINE PENHALLURICK
151
Political Donations by Australian Companies
IAN RAMSAY, GEOF STAPLEDON, JOEL VERNON
177
In the Wake of Teoh: Finding an Appropriate Government Response
WENDY LACEY
219
A Turtle by Any Other Name: The Legal Basis of the Australian Constitution
ANTHONY DILLON
241
The Military Call-out Legislation — some Legal and Constitutional Questions
MICHAEL HEAD
273
COMMENT AND BOOK REVIEW
The High Court – Legitimacy and Change: Review Essay:
Haig Patapan, Judging Democracy – The New Politics of the High Court of Australia
ANDREW LYNCH
295
COMMENT
Brownlee v The Queen: Method in the Madness
JAMES STELLIOS
319
PROPERTY AND THE DRAFTING OF THE AUSTRALIAN
CONSTITUTION
Simon Evans*
In this article, I present the results of a study into the extent to which property figured
as a constitutional and political concept in the drafting of the Constitution at the
Australasian Federal Conventions of the 1890s. Property is a fundamental concept of
western legal orders and a powerful political and rhetorical tool. Accordingly, it is
important to understand both how it affected the drafting of the Constitution and how
it is reflected in it. In Section I, I outline the process by which the Constitution was
drafted by the Australasian Federal Conventions in the 1890s. In Section II, I identify
the constitutional provisions in which 'property' and some related terms appear and
assess the extent to which the Conventions shed light on the meaning of those
provisions. In Section III, I discuss the striking ways in which property, as a political
concept, influenced debate at the Conventions on constitutional provisions that do not
themselves deal with property. In the final section, Section IV, I attempt an overall
assessment of the significance of the concept of property at the Conventions.
I.
THE AUSTRALASIAN FEDERAL CONVENTIONS
The Australian Constitution was drafted at a series of meetings during the 1890s (I refer
to these variously titled meetings as 'the Conventions' and the delegates to the
Conventions as 'the Framers').
• Thirteen delegates appointed by the colonial parliaments (including New Zealand)
met as the Australasian Federation Conference in Melbourne from 6 February 1890
to 14 February 1890.
• The next convention, the National Australasian Convention, held in Sydney from 2
March 1891 to 9 April 1891, again consisted of delegates (on this occasion 45 in
number) appointed by the colonial parliaments. It produced a draft Constitution
Bill which formed the basis of discussions at the next national Convention in 1897–
98.
• That Convention, the Australasian Federal Convention, held three sessions in 1897
and 1898. The first session was held in Adelaide from 22 March 1897 to 23 April
1897, the second session in Sydney from 2 September 1897 to 24 September 1897
_____________________________________________________________________________________
*
Lecturer, Faculty of Law, University of Melbourne. I am most grateful for the excellent
research assistance provided by Josephine Tan and for the ARC Small Grant that funded it.
I am also grateful for the comments of participants at the 2001 Real Property Teachers
Conference where a draft of this paper was first presented.
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and the third session in Melbourne from 22 January 1898 to 17 March 1898. The 50
delegates were elected, except the delegates from Western Australia who were
once again appointed by the colonial parliament. There were no delegates from
Queensland or New Zealand.
There is no space here to record all the details of the Convention process.1 It is
sufficient to note that, ultimately, the draft Constitution Bill produced by the 1897–98
Convention (amended somewhat by the colonial premiers) was adopted at referenda
in each of the States and was enacted by the Imperial Parliament (again after some
mostly minor amendments). It came into effect on 1 January 1901.
The records of the debates at the Conventions ('the Debates') and the draft
Constitution Bills produced by the Conventions were published in six volumes during
the 1890s.2 They form an important record of the federation movement (at least in its
public and official manifestations) and of the Constitution it produced.
The Debates and the draft Constitution Bills also have a legal significance. The High
Court has confirmed that they may be used in a limited way,3 along with other
historical materials, in interpreting the Constitution:
Reference to the history of [constitutional provisions] may be made, not for the purpose
of substituting for the meaning of the words used the scope and effect – if such could be
established – which the founding fathers subjectively intended the [provisions] to have,
but for the purpose of identifying the contemporary meaning of language used, the
subject to which that language was directed and the nature and objectives of the
movement towards federation from which the compact of the Constitution finally
emerged.4
_____________________________________________________________________________________
1
There are many excellent accounts of the Federation movement and the Conventions,
including Helen Irving, To Constitute A Nation (paperback edition, 1999) and John Hirst, The
Sentimental Nation: The Making of the Australian Commonwealth (2000).
2
Official Record of the Proceedings and Debates of the Australasian Federation Conference, 1890
(1890) ('CD Melbourne 1890'); Official Report of the National Australasian Convention Debates.
Sydney, 2 March to 9 April, 1891 (1891) ('CD Sydney 1891'); Official Report of the National
Australasian Convention Debates. Adelaide, March 22 to May 5, 1897 (1897) ('CD Adelaide
1897'); Official Record of the Debates of the Australasian Federal Convention. Second Session.
Sydney, 2nd to 24th September, 1897 (1897) ('CD Sydney 1897'); Official Record of the Debates of
the Australasian Federal Convention. Third Session. Melbourne, 20th January to 17th March 1898
(two volumes, 1898) ('CD Melbourne 1898'). The Draft Bills are reproduced as follows: CD
Sydney 1891, 943-964 ('1891 Draft Bill'); CD 1897 Adelaide, 1221–43 ('1897 Draft Bill'); CD
Melbourne 1898, 2523–44 ('1898 Draft Bill'). The 1891–98 Debates were reprinted in a 1986
facsimile edition as Official Record of the Debates of the Australasian Federal Convention with a
sixth volume of indices and commentary. The Debates have also been scanned and made
available
in
searchable
text
form
on
the
internet
by
the
Senate
<http://www.aph.gov.au/senate/pubs/records.htm>
and
the
SETIS
project
<http://setis.library.usyd.edu.au/fed/>. These electronic versions of the Debates were
indispensable in carrying out the research on which this article is based.
3
Despite earlier taking the opposite view, see James A Thomson, 'Constitutional
Interpretation: History and the High Court: A Bibliographical Survey' (1982) 5 University of
New South Wales Law Journal 309.
4
Cole v Whitfield (1988) 165 CLR 360, 385.
2001
123
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Accordingly, there is a rich and growing legal scholarship that focuses on the
Debates and assesses the extent to which they can assist in resolving current
constitutional problems.5
It is important to recognise, however, that the Conventions and the Debates are not
coterminous with the federation movement and that they offer no more than one slice
of federation history. However, for constitutional scholars, it is an important slice. In
practice if not in strict theory, the Debates and the draft Constitution Bills have had
greater interpretive significance than most other aspects of federation history. It is
debatable whether they identify any more clearly than other sources 'the nature and
objectives of the movement towards federation from which the compact of the
Constitution finally emerged'.6 But they are more like the lawyers' familiar tool of a
text that is complete, canonical and authoritative. That is, the Debates are complete in
that they encompass all of the matters dealt with in the Constitution and substantially
all of its text; they are canonical in that their form and content was fixed in the 1890s by
the shorthand notetakers and the publishers; and they derive authority from the
statutory foundations of the Conventions, their (mostly) democratic and charismatic
make-up and their substantial authorship of the text ultimately adopted by the people
and enacted by the Imperial Parliament. Although lawyers must deal with the internal
contradictions and inconsistencies of the Debates, those difficulties may appear less
significant than the open-endedness and multiplicity of the wider historical record.
Moreover, as an historical resource, the Debates are a useful record of the intellectual
milieu that produced the text of the Constitution, if not of the whole federation
movement. For these reasons they are a worthwhile object of study.
Accordingly, it is against this background that I turn to consider the historical and
legal significance of property as it was discussed at the Conventions.
II.
PROPERTY IN THE CONSTITUTION
A.
'Property', 'land' and 'territory'
In this Part, I identify the constitutional provisions in which 'property' and some
related terms appear, in preparation for Parts IIC, IID and IIE, which assess the extent
to which the Conventions shed light on the meaning of those provisions.
Five sections of the Constitution refer expressly to 'property'. The two sections of
greatest significance today are ss 51(xxxi) and 114.
• Section 51(xxxi) gives the Parliament the power to make laws 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.
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5
Noted by John Waugh, 'New Federation History' (2000) 24 Melbourne University Law Review
1028, 1041, referring to Kim Rubenstein, 'Citizenship and the Constitutional Convention
Debates: A Mere Legal Inference' (1997) 25 Federal Law Review 295; Haig Patapan, 'The Dead
Hand of the Founders? Original Intent and the Constitutional Protection of Rights and
Freedoms in Australia' (1997) 25 Federal Law Review 211; Rowan McMonnies, 'Ngo Ngo Ha
and the High Court v New South Wales: Historical Purpose in History and Law' (1999) 27
Federal Law Review 471, 474–81; Fiona Wheeler, 'Original Intent and the Doctrine of the
Separation of Powers in Australia' (1996) 7 Public Law Review 96.
6
See reference from Cole v Whitfield, above n 4, 385.
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•
Section 114 provides (in relevant part) that each State and the Commonwealth may
not tax the property of the other without consent:
A State shall not, without the consent of the Parliament of the Commonwealth …
impose any tax on property of any kind belonging to the Commonwealth, nor shall
the Commonwealth impose any tax on property of any kind belonging to a State.
Three other provisions are of limited significance today:
• Section 85 operated when State government departments were transferred to the
Commonwealth on its establishment. In particular, s 85 provided for the
Commonwealth to pay compensation to the State for any property that passed to
the Commonwealth under such a transfer. The transfer provision, s 69, operated on
the establishment of the Commonwealth (and subsequently on dates proclaimed
by the Governor-General) to enable the Commonwealth to take over the
administration of some areas of government that came within the legislative
competence of the Commonwealth Parliament. It has no continuing operation.
However, the compensation provisions of s 85 remain interesting for their contrast
with s 51(xxxi).
• Section 104 provides:
Nothing in this Constitution shall render unlawful any rate for the carriage of goods
upon a railway, the property of a State, if the rate is deemed by the Inter-State
Commission to be necessary for the development of the territory of the State, and if
the rate applies equally to goods within the State and to goods passing into the State
from other States.
The Inter-State Commission does not exist (it was abolished for the second time in
1989) and therefore s 104 also has no continuing operation.7
• Section 98 confirms that the Commonwealth's legislative power with respect to
trade and commerce extends to 'railways the property of any state'. Although the
provision continues to operate, its interpretation and application has not proved
contentious recently. And as is the case with s 104, there is nothing in the Debates
that sheds light on the property concept used in this provision. I do not discuss
either provision further.
As well as the direct references to 'property', the Constitution also contains four
linked provisions that together deal with the related concepts of 'land' or 'territory'.
• Section 111 provides that the States may surrender 'any part of the State' to the
Commonwealth and that following surrender (and acceptance by the
Commonwealth) 'such part of the State' becomes subject to the exclusive
jurisdiction of the Commonwealth. The sidenote to s 111 reads 'States may
surrender territory'.
• Section 125 provides for the seat of Government of the Commonwealth:
The seat of Government of the Commonwealth shall be determined by the
Parliament, and shall be within territory which shall have been granted to or
acquired by the Commonwealth, and shall be vested in and belong to the
Commonwealth, and shall be in the State of New South Wales, and be distant not
less than one hundred miles from Sydney.
_____________________________________________________________________________________
7
Michael Coper, 'The Second Coming of the Fourth Arm' (1989) 63 Australian Law Journal
731.
2001
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Such territory shall contain an area of not less than one hundred square miles, and
such portion thereof as shall consist of Crown lands shall be granted to the
Commonwealth without any payment therefor.
The Parliament shall sit at Melbourne until it meet at the seat of Government.
•
Section 122 provides that the Parliament may make laws for the government of the
Territories:
The Parliament may make laws for the government of any territory surrendered by
any State to and accepted by the Commonwealth, or of any territory placed by the
Queen under the authority of and accepted by the Commonwealth, or otherwise
acquired by the Commonwealth, and may allow the representation of such territory
in either House of the Parliament to the extent and on the terms which it thinks fit.
•
And s 52(i) gives the Commonwealth Parliament the exclusive power to make laws
with respect to:
The seat of government of the Commonwealth, and all places acquired by the
Commonwealth for public purposes.
In short, of the provisions which remain in operation or are of current interest:
• three provisions (ss 51(xxxi), 85 and 125) deal with the compulsory acquisition of
property by the Commonwealth;8
• one provision (s 114) deals with taxation of Commonwealth and State property;
and
• four provisions (ss 52, 111, 122 and 125) deal with the Commonwealth's territorial
sovereignty and legislative power over land it acquires or which is surrendered to
it.
I discuss the provisions in this order in the following Parts, after first considering one
place in the Constitution where property is not mentioned.
B.
Property Remains a State Responsibility
Section 51 enumerates the powers of the Commonwealth Parliament. It contains no
general provision with respect to property, civil rights, land law or public lands. As a
result, regulation of these subjects remains largely a state responsibility.9
It was not inevitable that the States retain responsibility for property or land law
after federation. For one thing, one of the models on which the Australian framers
drew, the Canadian Constitution of 1867, gave the central legislature the power to
make uniform laws with respect to property and civil rights for three provinces.10 For
_____________________________________________________________________________________
8
Note also s 51(xxxiii) which deals with consensual acquisition of a particular kind of
property.
9
The Commonwealth is able to regulate property to some extent under other heads of
legislative power, such as Australian Constitution s 51(xxvi) which since 1967 has allowed
recognition and regulation of indigenous property rights and Australian Constitution
s 51(xxix) which (given Australia's international treaty obligations) has allowed for
regulation of environmentally significant areas.
10
British North America Act 1867 (Imp) s 94. No such law had effect in any province until it
was adopted by the legislature of that province. Apart from this provision, property and
civil rights were within the exclusive legislative power of the provinces (s 92(13)), as was
'The Management and Sale of the Public Lands belonging to the Province and of the Timber
and Wood thereon' (s 92(5)).
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another, in 1857, a Victorian Parliamentary Select Committee had concluded that there
was 'but one opinion' on 'the ultimate necessity of a federal union' and specifically
drew attention to the need for uniform 'land systems'.11
Nonetheless, the Conventions rejected, without debate, the option of enabling the
Commonwealth Parliament to make uniform property laws. Sir Samuel Griffith,
perhaps the dominant figure of the 1891 Convention,12 baldly stated that under
Federation the States would retain their legislative autonomy in relation to a list of
subjects including 'all the laws relating to property and civil rights, the whole subject
of public lands and mines [and] registration of titles'.13 Giving the Commonwealth
Parliament power with respect to property and civil rights simply was not considered
seriously; neither was giving the Commonwealth power with respect to the colonies'
public lands.14
Moreover, when it was suggested that other Commonwealth powers might have
had an incidental effect on public lands, property and civil rights, Griffith and Barton,
among others, argued and assured the Conventions that these powers should not, and
sometimes could not, have this effect.15 And as founding members of the High Court
they were able to ensure that this remained the constitutional orthodoxy until the
Engineers Case in 1920.16
At one level it is clear why the Conventions took this view and the Framers did not
include property as a federal legislative subject-matter in the Constitution. Most of the
Framers desired a relatively small Federal government that had power only with
respect to matters 'properly federal'.17 They sought a 'federal union of sovereign states'
rather than a 'national government'.18 Throughout the Debates and the contemporary
material, there is an assumption that the colonies would remain significant political
entities as States of the Commonwealth. In particular, they would retain their
sovereignty19 and not be reduced to mere municipal governments.20
_____________________________________________________________________________________
11
Report of the Select Committee of the Victorian Legislative Assembly on the Federal Union of the
Australian Colonies (8 September 1857) reprinted in Papers Relating to A Federal Union (1862)
9 and quoted by Sir Henry Parkes, CD Melbourne 1890 (10 February 1890), above n 2, 34–5.
12
Concise biographical information on the various delegates can be found in Helen Irving
(ed), The Centenary Companion to Australian Federation (1999).
13
CD Sydney 1891 (31 March 1891), above n 2, 525. See also Thynne, CD Sydney 1891 (3 April
1891), above n 2, 685.
14
See generally Abbott, CD Sydney 1891 (12 March 1891), above n 2, 302.
15
For example, Barton, CD Sydney 1891 (8 April 1891), above n 2, 690 (rivers); Griffith, CD
Sydney 1891 (6 April 1891), above n 2, 781–4 (conciliation and arbitration). See also Wise,
CD Sydney 1897 (16 September 1897), above n 2, 644; Thynne, CD Sydney 1891 (3 April
1891), above n 2, 685 (objecting to Commonwealth power in relation to banking, bills of
exchange, promissory notes, bankruptcy and insolvency on the grounds that these invaded
the States' authority over property and civil rights).
16
Amalgamated Society of Engineers v Adelaide Steamship Co Ltd (1920) 28 CLR 129.
17
Deakin, CD Melbourne 1898 (2 February 1898), above n 2, 455; Barton, CD Melbourne 1898
(7 March 1898), above n 2, 1992.
18
Symon, CD Sydney 1897 (10 September 1897), above n 2, 296 quoting from the American,
Samuel Adams.
19
Reid, CD Melbourne 1898 (11 March 1898), above n 2, 2268, 2270, 2272–3; Reid, CD
Melbourne 1898 (23 February 1898), above n 2, 1384–5; Trenwith, CD Sydney 1897 (15
September 1897), above n 2, 603–4; Robert Garran, The Coming Commonwealth (1897) 15–16.
2001
127
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The link with property arises because power to regulate land and land use appears
to have been an important part of the then contemporary vision of States as significant
political entities. Without this power, they would be 'mere municipal governments' (I
develop this point in Part IIE below.) Accordingly, it was virtually beyond question
that the states would retain responsibility for property, civil rights, land law and public
lands if they were to remain the significant political entities the Framers anticipated.
Moreover, by the 1890s, the concerns of the Victorian Parliamentary Select
Committee in 1857 about the need for uniform land systems21 were quite remote. From
1858, the Torrens system spread rapidly throughout Australia, producing broadly
uniform land titles legislation.22 Moreover, in 1857, Victoria and Tasmania had only
recently been separated from New South Wales and, with South Australia, had just
received self-governing status; Queensland would remain part of New South Wales for
another two years before it too became self-governing.23 With self-government came
the power to determine land policy, including policy about the grant or sale of Crown
lands.24 The novelty of the power may have contributed to the concerns of 1857.
Whatever the source of the concerns, over the next forty years, the colonial parliaments
separately addressed the problems of providing secure tenures for squatters on Crown
land and opening the land up for selection by others. Their policies were not always
successful and they changed regularly. But by the 1890s the differences between the
colonies do not appear to have been regarded as cause for concern and certainly not as
requiring a national solution.25
Given these developments and the general pre-commitment to the states as
significant political entities, it is hardly surprising property remained a state
responsibility.26
_____________________________________________________________________________________
20
Playford, CD Melbourne 1890 (10 February 1890), above n 2, 71; Thynne, CD Sydney 1891
(16 March 1891), above n 2, 402–3.
21
Report of the Select Committee of the Victorian Legislative Assembly on the Federal Union of the
Australian Colonies, above n 11.
22
Douglas J Whalan, The Torrens System in Australia (1982) 3–12.
23
Western Australia did not receive responsible self-government until 1890 under the
Constitution Act 1889 (WA).
24
Bruce Davidson, 'An Historical Perspective of Agricultural Land Ownership in Australia' in
James Lees (ed), A Legacy Under Threat?: Family Farming in Australia (1997) 15, 30–1; Stephen
H Roberts, History of Australian Land Settlement 1788–1820 (1968) 218–58.
25
To the extent that there were differences, they appear to have been fiscal. New South Wales
derived a disproportionately large amount of its revenues from land sales: Donaldson, CD
Sydney 1897 (6 September 1897), above n 2, 38–9; see also CD Sydney 1891 (12 March 1891),
above n 2, 311. Barton certainly did not endorse New South Wales' policy: CD Sydney 1897
(8 September 1897), above n 2, 209 ('We are in an advantageous financial position in this
respect as compared with the rest of the colonies, because we may be said to be cutting
down the ancestral trees').
26
An unsuccessful attempt was made to provide for how the Commonwealth should deal
with its own public lands, apparently following the enthusiasm for perpetual leasehold
sparked by Henry George in 1883: Glynn, CD Melbourne 1898 (8 February 1898), above n 2,
698–9. The view of the Convention appears to have been that this was the kind of
contentious matter which ought to be left to the Federal Parliament: Brown, CD Melbourne
1898 (8 February 1898), above n 2, 699 (on Henry George and perpetual leaseholding, see
Davidson, above n 24, 44; Roberts, above n 24, 408–9).
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C.
Acquisition of Property by the Commonwealth
I now turn from the omission of property as a subject of Commonwealth legislative
power to consider the provisions of the Constitution that do deal with property. The
first group of these provisions, ss 51(xxxi), 85 and 125, provide for the Commonwealth
to acquire property from the States; s 51(xxxi) also provides for acquisitions from
private persons.
The debate on what was to become s 51(xxxi) was brief and came close to the end of
the Conventions. Barton moved the adoption of text equivalent to s 51(xxxi) on 25
January 1898, in response to concerns that the other provisions of the draft Constitution
would not be sufficient to enable the Commonwealth to acquire the land it needed for
public purposes. Barton commented that, although s 85 would allow for the transfer of
parts of the State public service and s 111 would allow for the (consensual) surrender
of territory by States, there was no general power of acquisition. Barton invited
comments from other Framers on whether the express incidental power (now
s 51(xxxix)) would fill this gap.27 In an oblique response, Quick pointed out that the
United States, Canadian and Swiss constitutions all explicitly authorised the central
legislature to enact compulsory acquisition legislation, at least for the acquisition of
land required for military purposes.28 More to the point, Isaacs asserted that the
express incidental power would authorise such legislation.29 Quick (anticipating the
view later expressed in his and Garran's Annotated Constitution of the Commonwealth of
Australia30) and Glynn then insisted that it would not; accordingly they pressed for an
express power authorising acquisition legislation.31
Typically, the debate did not resolve the point of legal principle. Rather, it focussed
on three objections to Barton's proposal:
• First, Turner feared that any extension of the Commonwealth's power to acquire
property (and therefore of its liability to pay for that property) would reduce the
funds that the Commonwealth would otherwise have returned to the States.32
• Secondly, Turner objected to the use of the words 'just terms' 'on the grounds that
they are not proper words to put into the Constitution': 'We assume that the
Federal Parliament will act strictly on the lines of justice'.33 This is the familiar
objection to protecting rights in the Constitution: the legislature should not be
_____________________________________________________________________________________
27
CD Melbourne 1898 (25 January 1898) , above n 2, 151.
28
Ibid 151–2. In Germany a similar power was vested in the Emperor.
29
Ibid 152. Isaacs expanded on this point later, referring to American authorities: CD
Melbourne 1898 (28 January 1898) , above n 2, 260–1 (here he also distinguishes between
the Commonwealth as proprietor and the Commonwealth as sovereign). See also Isaacs,
CD Melbourne 1898 (16 February 1898), above n 2, 1007.
30
John Quick and Robert Garran, The Annotated Constitution of the Australian Commonwealth
(first published 1901, reprinted 1976) 640–1.
31
CD Melbourne 1898 (25 January 1898), above n 2, 152. See also the exchange between
O'Connor and Cockburn, CD Melbourne 1898 (28 January 1898), above n 2, 258.
32
CD Melbourne 1898 (25 January 1898), above n 2, 152. He need not have worried about a
surplus: see New South Wales v Commonwealth (the Surplus Revenue Case) (1908) 7 CLR 179;
Denis James, 'Federal–State Financial Relations: The Deakin Prophecy', The Vision in
Hindsight: Parliament and the Constitution: Paper No 2, Research Paper No 17 1999–2000,
Department of the Parliamentary Library (2000) 4-5.
33
CD Melbourne 1898 (25 January 1898), above n 2, 153.
2001
129
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presumed to act in a manner that adversely affects individual rights and if it does
the sanction lies at the ballot box rather than in the courts.34
• Thirdly, Isaacs observed that the clause would enable the Commonwealth to
acquire land within a state without the consent of that state, contrary to the
requirements of what was to become s 111 and to the then current draft of what
became s 52(i).35
Barton answered Turner's first objection clearly enough. Without a power such as
that conferred by s 51(xxxi), any acquisition would be carried out by contract and
would be more expensive than a compulsory acquisition carried out under s 51(xxxi)
where the compensation would be determined by arbitration or court proceedings.36
However, Barton did not respond to Turner's second objection or to Isaacs' objection;
rather, at their suggestion, he withdrew the proposed section for further discussion
outside the chamber.37
The Debates do not reveal whether any such discussions took place and, if so, what
was said. The matter returned to the chamber several days later when O'Connor
moved the adoption of what eventually became s 51(xxxi).38 O'Connor simply said:
Some question has been raised as to whether the Commonwealth has the power
inherently of acquiring property under just terms of compensation; that is to say, whether
it is not driven to bargain and sale only. It is quite clear that there must be a power of
compulsorily taking property for the purposes of the Commonwealth.
… And this clause is framed to provide for that.39
In answer to a question about the terms on which acquisitions would be carried out,
O'Connor said that it was not appropriate to provide in detail in the Constitution for the
actual method of acquisition: that was a matter for legislation.40 The clause was then
adopted without further debate.
What can be drawn from this perfunctory discussion? Clearly enough, it provides
little assistance in interpreting s 51(xxxi). The section was adopted without amendment
_____________________________________________________________________________________
34
Owen Dixon, 'Two Constitutions Compared' in J Woinarski (ed), Jesting Pilate and other
Papers and Addresses (1965) 100, 102; Robert Menzies, Central Power in the Australian
Commonwealth (1967) 54; Amalgamated Society of Engineers v Adelaide Steamship Co Ltd
(Engineers Case) (1920) 28 CLR 129, 151–2.
35
CD Melbourne 1898 (25 January 1898), above n 2, 153. Section 53(II) then provided for
exclusive Commonwealth power with respect to:
II. The government of any territory which by the surrender of any State or States,
and the acceptance of the Commonwealth, becomes the seat of Government of the
Commonwealth, and the exercise of like authority over all places acquired by the
Commonwealth, with the consent of the State in which such places are situated, for
the construction of forts, magazines, arsenals, dockyards, quarantine stations, or for
any other purposes of general concern.
This aspect of s 53(II) was discussed further at CD Melbourne 1898 (28 January 1898), above
n 2, 256–61. Note also s 51(xxxiii) which authorises Commonwealth laws with respect to
'the acquisition, with the consent of a State, of any railways of the State on terms arranged
between the Commonwealth and the State' (emphasis added).
36
37
38
CD Melbourne 1898 (4 March 1898), above n 2, 1874.
39
Ibid.
40
Ibid.
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at the last Convention, so it is not possible to trace successive drafts through the draft
Constitution Bills, seeking to identify significant alterations and omissions. There is
nothing in the Debates that identifies the contemporary meaning of 'property' or
'acquisition' or 'just terms'. There is little that takes the reader beyond the words of the
section itself in identifying 'the subject to which [the] language' of the section 'was
directed'.41 The examples given by the speakers of the purposes for which property
could be acquired under the section (military facilities,42 a federal court-house or a
federal custom-house43 or a leper station44) cannot limit the generality of the purposes
comprehended by the language of the provision: 'any purpose in respect of which the
Parliament has power to make laws'. Nor can the speakers' apparent assumption that
the property to be acquired would be land limit the generality of 'property' as the
subject-matter of the section.45 And even if their examples and assumptions could in
principle have been used to limit the scope of the section in this way, the High Court
has long taken the view that 'property is the most comprehensive term that can be
used'46 and that it includes for the purposes of s 51(xxxi)
every species of valuable right and interest including real and personal property,
incorporeal hereditaments such as rents and services, rights of way, rights of profit or use
in land of another, and choses in action.47
It appears to be too late to retreat to the narrower conception of the section that was
apparently intended by the Framers.
One thing is clear, however. The Debates do not support the assertion that the
section was modelled on the American Takings Clause. That assertion was made by
Dixon J in Andrews v Howell:
The source of sec. 51 (xxxi.) is to be found in the fifth amendment of the Constitution of
the United States, which qualifies the power of the United States to expropriate property
by requiring that it should be done on payment of fair compensation.48
Whatever support for this view there might be elsewhere, there is no evidence of it in
the Debates.49 Not only is the language of the sections very different,50 so too are their
respective historical contexts. The Australian colonies had not undergone the
_____________________________________________________________________________________
41
See reference from Cole v Whitfield, above n 4, 385.
42
Quick, CD Melbourne 1898 (25 January 1898), above n 2, 151. See also the purposes referred
to in draft cl 53(II), above n 35.
43
Quick, CD Melbourne 1898 (25 January 1898), above n 2, 152.
44
Cockburn, CD Melbourne 1898 (28 January 1898), above n 2, 258.
45
Unless an argument can be built on the more specific acquisition powers in ss 51(xxxiii)
and 85(ii). That seems unlikely.
46
Commonwealth v New South Wales (1923) 33 CLR 1, 20–1.
47
Minister of State for the Army v Dalziel (1944) 68 CLR 261, 290.
48
(1941) 65 CLR 255, 282. See also The Australian Apple and Pear Marketing Board v Tonking
(1942) 66 CLR 77, 82–3.
49
Quick and Glynn had referred to Art 1, s 8, paras 17 and 18 of the United States
Constitution: CD Melbourne 1898 (28 January 1898), above n 2, 151–2, but had not referred
to the Takings Clause.
50
One is framed as a legislative power subject to a limitation, the other as a guarantee of
individual rights; one refers to 'acquisition', the other to 'tak[ing]'; one refers to 'just terms',
the other to 'just compensation'; and one limits the purposes of acquisition to 'any purpose
in respect of which the Parliament has power to make laws', the other to takings 'for public
use'.
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American experience of revolution and its aftermath. Following the revolution, newly
powerful majorities confiscated the property of the British and their allies, introduced
debtor-relief laws and required that depreciated paper money be accepted in payment
of debts.51 Moreover, James Madison's fears for the property rights of the minority if
political power were entrusted to the propertyless majority never assumed major
significance in the Australian Debates;52 and to the extent that such issues were
discussed it was in the context of the powers and composition of the Senate rather than
in creating judicially enforceable barriers to the redistribution of property.53
Accordingly, there is no comparison with the background to the American
Constitution and Bill of Rights. The modern tendency to regard s 51(xxxi) as a broad
guarantee of individual rights has no basis in the Debates.54
This point is reinforced when the late introduction of s 51(xxxi) is contrasted with
the significantly longer history of s 85. At least from the 1891 Convention, acquisition
of property under s 85 and its antecedents was linked with an obligation to pay
compensation. The 1891 Draft Bill provided that if a State and the Commonwealth
could not agree on the amount of compensation payable for property acquired by the
Commonwealth when a State government department was transferred to the
Commonwealth, 'the value thereof shall … be ascertained in the manner in which land
taken by the Government of the State for public purposes is ascertained under the laws
of the State'.55
This compensation formula appeared in substantially the same form in the 189756
and 189857 Draft Bills. However, from 1898, a distinction was drawn between (a)
property exclusively used in connection with the State government department and (b)
property used, but not exclusively used, in connection with the State government
department. In the Constitution as enacted, as in the 1898 draft, s 85(ii) provides that the
1891 compensation formula (based on the compensation payable under State
compulsory acquisition laws) only applies to property of the latter kind. Section 85(iii)
provides separately for compensation for property of the former kind: 'if no agreement
can be made as to the mode of compensation, it shall be determined under laws to be
made by the Parliament'.58
In short, compensation was required by the Draft Bills prepared by the Conventions
whenever the Commonwealth compulsorily acquired property from private
individuals or the states.59 Three standards of compensation were employed: the 'just
_____________________________________________________________________________________
51
James W Ely Jr, The Guardian of Every Other Right (1992) 34–58.
52
On Madison's fears, see Jennifer Nedelsky, Private Property and the Limits of American
Constitutionalism (1990) 16–66.
53
See below Part III(B).
54
See Smith v ANL Limited (2000) 176 ALR 449, 451-452, 468, 476, 487, 494, 496-497 and the
earlier cases cited in Simon Evans, 'When Is an Acquisition of Property Not an Acquisition
of Property?' (2000) 11 Public Law Review 183, 199 n 67.
55
1891 Draft Bill, above n 2, Chapter IV, cl 6, para 2.
56
1897 Draft Bill, above n 2, cl 86, para 2.
57
1898 Draft Bill, above n 2, cl 85(II).
58
Australian Constitution s 85(iii). That is supplemented by a requirement that the
Commonwealth take over the current obligations of the states in respect of the departments
transferred: Australian Constitution s 85(iv).
59
Section 125 provides in part that so much of the seat of government as was Crown land
should be acquired from the state in which it was situated 'without any payment therefor'.
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terms' required by s 51(xxxi) of the Constitution; the standards fixed by state
compulsory acquisition legislation required by s 85(ii); and the standards to be fixed by
federal legislation required by s 85(iii).60 In light of this pattern of providing
compensation when property is acquired compulsorily, and the longstanding British
and colonial tradition which it reflects,61 it is difficult to fix on an American
constitutional provenance for one of these provisions (s 51(xxxi)) and attribute to the
Framers an intention that it reflect an American constitutional guarantee, particularly
one cast in significantly different language.
Ultimately, then, the Debates provide little assistance in resolving the current
problems of s 51(xxxi) jurisprudence.62 Not only is the debate on this section brief and
largely unrevealing, the High Court has long since moved beyond what does emerge
as the apparently intended operation of s 51(xxxi). Nonetheless, this fragment of
debate on s 51(xxxi) does provide a useful illustration of some more general features of
the Debates. In particular, the Framers' assumptions about property and
constitutionalism are unstated and unexplored. There is no discussion of what
property is; why compensation is appropriate when the Commonwealth acquires
property; or whether this requirement should be entrenched (apart from Turner's
objection to doing so63). These issues lie firmly in the background. The debate occurs at
a level of generality appropriate to reaching political agreement on a constitution rather
than one appropriate to reaching philosophical agreement about the issues to which the
constitution is addressed. This example reinforces the need to be cautious in
attempting to rely on the Debates to resolve interpretive problems that reflect
disagreements about the scope and purpose of particular provisions.
D.
Property and Taxation
The next provision of the Constitution that refers to property is s 114. This section
prevents the Commonwealth and the States from imposing taxation on the property of
the other. The initial draft (so far as is relevant here) only prohibited the States from
imposing taxation on 'on any land or other property belonging to the
Commonwealth'.64 The provision was made reciprocal (prohibiting the
Commonwealth from imposing tax on any land or other property belonging to a State)
in 1891 on a motion by Griffith and with brief discussion of only one question.65
In 1897, the clause was introduced in a slightly amended form: the subject-matter of
the proscribed taxation became 'property of any kind' rather than 'any land or other
_____________________________________________________________________________________
This text was introduced by the premiers after the 1897–98 Convention had ended and the
first referendum in New South Wales had failed: John Quick, Historical Introduction to
Annotated Constitution (1901) 219–20. It does not represent the outcome of the Convention's
deliberative processes.
60
The last is supplemented by a requirement that the Commonwealth take over the current
obligations of the states in respect of the departments transferred: Australian Constitution
s 85(iv).
61
Dating at least from the time of Blackstone: William Blackstone, Commentaries on the Laws of
England (first published 1765) vol 1, 139. Compare Durham Holdings Pty Ltd v The State of
New South Wales (2001) 177 ALR 436, 443–444 (Kirby J).
62
On those problems, see Evans, above n 54.
63
See text above n 33.
64
CD Sydney 1891 (8 April 1891), above n 2, 883.
65
Ibid.
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property' as in 1891.66 However, the debate focused chiefly on other parts of the
clause.67 This aspect of the clause was discussed only in response to South Australian
concerns. Glynn pointed out that much land in South Australia was leased with the
right of purchase and that the clause might defeat any taxation of that property.68
O'Connor and Barton pointed out that the State's property in such a case was the
reversion, which could not be taxed by the Commonwealth, but that the 'interest of the
lessee in the property would be taxable'.69 In answer to another question, Barton
asserted that the clause would not prevent the Commonwealth levying customs duties
on goods (such as rails, machinery and engines) imported by the States,70 an assertion
later vindicated by the decision of the High Court in Attorney-General (NSW) v Collector
of Customs (NSW) (the Steel Rails Case).71
Once again the debate was perfunctory and is of limited assistance in interpreting
the section. The language and history of the section are as one in identifying the
breadth of the subject-matter of the proscribed taxes. The debate, particularly Barton's
contribution, supports the High Court's approach to distinguishing between taxes on
owning and holding property (proscribed by s 114) and taxes on transactions involving
property (not proscribed by s 114).72 But beyond this there is little of interest. In
particular, there is no discussion of why it was thought necessary to prohibit the States
from taxing the Commonwealth's property (and vice versa) but not necessary to
prohibit them imposing other burdens (including non-property taxes) on each other.73
As in the (non-)debate on whether the States or the Commonwealth should have
legislative power with respect to property matters, a complex set of assumptions about
the relationship between property and governments appears to lie behind the
discussion. But once again it is not articulated by any of the Framers. In the next Part, I
consider the extent to which those assumptions can be discerned in other parts of the
Debates.
E.
Property – Ownership and Sovereignty
The final set of provisions (ss 52, 111, 122 and 125) deal with the acquisition of property
by the Commonwealth as a polity (rather than as a proprietor) and with the
Commonwealth's legislative power over property it acquires. Although the High Court
has found useful material in the Debates and draft Constitution Bills for interpreting
_____________________________________________________________________________________
66
CD Adelaide 1897 (20 April 1897), above n 2, 1001.
67
The prohibition on states imposing harbour rates and tonnage dues. Ultimately, the
provision in relation to tonnage dues was omitted: CD Adelaide 1897 (20 April 1897), above
n 2, 1004.
68
CD Adelaide 1897 (20 April 1897), above n 2, 1001. Glynn returned to this theme in 1898,
misconstruing the intended effect of the text: CD Melbourne 1898 (7 February 1898), above
n 2, 653. Barton pointed out that the provision would not prevent taxation of private
property and the clause was agreed to without division: ibid.
69
CD Adelaide 1897 (20 April 1897), above n 2, 1001–2.
70
71
(1908) 5 CLR 818.
72
Deputy Commissioner of Taxation v State Bank of New South Wales (1992) 174 CLR 219.
73
Nor to prohibit the States from imposing taxes on one another and one another's property:
State Authorities Superannuation Board v Commissioner of State Taxation (WA) (1996) 189 CLR
253.
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some aspects of these provisions74 there is little that bears on the specific concepts of
'property' or 'territory' used here. However, the debate on these provisions does raise
the question of the relationship between property as an object of ownership and
property as an area over which a polity exercises sovereignty or political dominion.
Section 122 (which provides for Commonwealth legislative power over the
Territories) certainly contemplates the Commonwealth acquiring sovereignty over the
land to which it applies, including land acquired under ss 111 and 125. But s 52(i) (in so
far as it provides for exclusive Commonwealth legislative power over 'all places
acquired by the Commonwealth for public purposes') does not necessarily contemplate
the Commonwealth acquiring sovereignty over the land to which it applies (consider
for example land acquired under s 51(xxxi) for the purpose of building and operating a
post office).
1.
Sovereignty and Commonwealth property
Nearly a century after federation, the High Court's decisions in Mabo v State of
Queensland [No 2]75 and Wik Peoples v State of Queensland76 made clear that sovereignty
over land does not entail beneficial ownership of that land. That position was not the
received view at the time of the Conventions77 and accordingly the concepts were
more tightly linked in the Debates than would be expected today. Isaacs appears to
have been the only delegate to distinguish explicitly between proprietorship of and
sovereignty over land acquired by the Commonwealth. He argued:
[W]hen the Government does take land, compulsorily or by purchase, in a state as its
possession, it takes that land certainly by virtue of its sovereign power of eminent
domain, that is, the highest dominion. But it does not hold that land as sovereign, it holds
the land as proprietor. 78
Isaacs then distinguished between the case where the land was acquired with the
consent of the state and where it was acquired without consent:
Now, where it holds the land merely as proprietor, without the consent of the state being
given to it, it is quite plain that the jurisdiction of the state should run, except, of course,
so as not to interfere with the performance of the governmental functions of the Federal
Government. But, as far as punishing crime is concerned, as far as any other ordinary
state supervision relates, not inconsistent with the performance of the supreme functions
of the Commonwealth, the ordinary state law will run. But … where the state consents to
the Federal Government acquiring any land, either by purchase or compulsorily, it
thereby consents, and that consent is equivalent to the admission of the right of the
Federal Government to exercise exclusive jurisdiction in respect to that particular portion
of territory.79
Hence, s 52 was initially drafted to require the consent of the state before the
Commonwealth acquired exclusive jurisdiction over the property it acquired.80
Ultimately, Isaacs' view did not prevail and s 52 now draws no distinction between
_____________________________________________________________________________________
74
For example, Svikart v Stewart (1994) 181 CLR 548 on whether s 52(i) applied to property
acquired by the Commonwealth within a territory.
75
(1992) 175 CLR 1.
76
(1996) 187 CLR 1.
77
Mabo v State of Queensland [No 2] (1992) 175 CLR 1, 43–5.
78
CD Melbourne 1898 (28 September 1898), above n 2, 261.
79
Ibid.
80
1891 Draft Bill, above n 2, cl 53(2).
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property acquired with and without the consent of the state; in both cases the
Commonwealth has exclusive jurisdiction.
But Isaacs' recognition of the distinction between proprietorship and sovereignty
remains relevant. As Mason CJ, Deane, Dawson and McHugh JJ pointed out in Svikart
v Stewart:
It is … plain that s 52(i) was intended to provide for exclusive Commonwealth legislative
power with respect to places acquired by the Commonwealth in a State. To achieve this
in an Australian context there was no need, as there was in the United States, to think in
terms of territorial sovereignty. It was sufficient that acquisition of property should carry
with it legislative authority without political dominion.81
Accordingly, as Isaacs foreshadowed, s 52 deals with legislative authority over land
held by the Commonwealth as proprietor, not with political dominion over land held
as sovereign.
2.
Property, sovereignty and development
I have already introduced one other way in which the concepts of sovereignty and
proprietorship were linked in the Debates. The colonies (or at least their
representatives at the Conventions) saw their sovereignty, their political existence and
significance, as tightly linked with control over land and its development.82 Much
more recently, Western Australia maintained this view in Western Australia v
Commonwealth (the Native Title Act Case) when it challenged the Native Title Act 1993
(Cth) on the grounds that it interfered with its continued existence as a State.83
Western Australia had pleaded:
62. The capacity and power to grant, regulate and otherwise deal with land and other
resources in Western Australia, including the capacity and power to appropriate land for
public purposes and to alienate and develop Crown lands, particularly for agricultural,
pastoral and mining purposes in accordance with the laws in force in Western Australia
is a fundamental sovereign function of the Government of Western Australia as a State.
63. The capacity and power to administer and regulate land and other resources in
Western Australia and the revenue derived from it are essential to the continued
existence of the State and its capacity to function as a government.84
These arguments carried no weight in the High Court in 1995.85 But similar arguments
did play a part at the Conventions. For example, Barton saw the railways, the land and
the sovereignty of the states as integrally connected:
If the land is the possession of the province let us consider what railways were created
for. Were they not created for the development of the land, and are they not as much an
instrument for the development of the land as the roads and bridges … ? … [T]hey exist
for the same purpose as the roads and bridges, namely, for the development of the land
which we, the people of the individual colonies, mean to retain. There is something
which inherently makes them a provincial and not a federal property.86
_____________________________________________________________________________________
81
(1994) 181 CLR 548, 560–1.
82
See text above n 18, and following.
83
(1995) 183 CLR 373.
84
(1995) 183 CLR 373, 478–9.
85
Ibid 480–2.
86
CD Adelaide 1897 (31 March 1897), above n 2, 370.
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Accordingly, the Commonwealth should not be able to acquire the railways without
the consent of the states. The railways were 'so inherently connected with the
development of the States, it should be for the local Parliaments to say whether they
would hand them over or not'.87 And so s 51(xxxiii) now provides.
Similarly, Holder used the nexus he perceived between land development and the
sovereignty of the states to argue (ultimately unsuccessfully) that the power to grant
bounties should remain with the states:
[W]hat has more to do with the development of the Crown lands and the foundation of
the settlement of these lands, as well as enlarging the industries dependent upon those
lands, than bounties for the export of produce from that land?88
That the argument carries less weight today draws attention to the shift, culturally and
economically, that has occurred in the last century away from perceiving the land as an
important part of national and state identity.
Equally important for some was control over the rivers. South Australia depended
(then as it does now) on the River Murray for irrigation and drinking water and (then
but to a greatly reduced extent now) for commercial navigation. The Murray is fed by a
number of rivers that rise in New South Wales and which New South Wales farmers
also depend on for irrigation. Of course, water taken by New South Wales farmers
means less water for South Australia. South Australia's delegates, therefore, sought
federal control over rivers and navigation. New South Wales resisted and framed its
defence of state control of the rivers on the basis that the river and its waters were New
South Wales property. Wise said:
The water is as much the property of New South Wales as any inch of its territory. The
bed of the river is ours, and we have the power to gather a pretty considerable revenue
from wharfage and tonnage dues, the whole length of the boundary between New South
Wales and Victoria.89
Barton observed that '[m]atters relating to irrigation and so on [were] intimately
connected with property and civil rights', matters of state and not federal concern, and
he therefore argued that they be left in State hands.90
On the other side of the debate, Deakin quoted from a paper by Inglis Clark
defending the South Australian position in property terms: 'The riparian rights of the
owners of land abutting on the River Murray, in the colony of South Australia, are
rights of property in South Australia'.91 New South Wales legislation could not
authorise infringement of those property rights and any infringer would be liable to
suit in the federal courts.92
Even those who sought a measure of joint control over the rivers conceived of the
problem in property terms. Turner suggested that 'water ought to be considered as
common property'.93 Higgins used similar language: 'The water does not belong to
_____________________________________________________________________________________
87
CD Adelaide 1897 (31 March 1897), above n 2, 373. See also Barton, CD Sydney 1897 (8
September 1897), above n 2, 207.
88
89
90
CD Sydney 1891 (3 April 1891), above n 2, 690.
91
CD Melbourne 1898 (3 February 1898), above n 2, 516–17.
92
Ibid 517.
93
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New South Wales, Victoria, or any other colony; it is the public property of
Australia'.94 And Gordon argued:
Rivers which take their rise in New South Wales, but which run for huge distances
through other colonies, cannot be described by the residents of New South Wales as "our
rivers," using the term in the sense of exclusive and sole possession. They are no more the
rivers of New South Wales in that sense than the sun which warms them belongs to New
South Wales, or the air which sweetens them is the air of New South Wales.95
The use of the rivers should be 'controlled in the interest of all riparian coproprietors'.96 And (then) modern legislation recognised that even the riparian owner's
property rights in the stream were subject to 'a higher, a paramount, right' of others
who depended on the stream.97
The pervasive use of 'property-talk' on all sides of the debate obscured the real
issues. Higgins demonstrated how inapt it was to refer to the rivers as the property of
any state:
At what point, then, does it become New South Wales property? I say that you cannot
sever a river from its tributaries, any more than you can sever an engine from its wheels,
or a man from his arms. Do these waters become exclusively New South Wales property
when they are in the clouds in the form of rain, or in the Queensland hills in the form of
creeks? Is the Darling the property of New South Wales when it forms a part of that
colony, or when it empties its waters into the Murray and passes through South
Australia?98
Ultimately the compromise reached was to balance the Commonwealth's power over
navigation and shipping as part of interstate trade and commerce (s 98) with a
prohibition (s 100) on it abridging the right of any State or its residents to 'the
reasonable use of the waters of rivers for conservation or irrigation', deferring the issue
for resolution by the Parliament, the Inter-State Commission and ultimately the High
Court.
The debate on the rivers shows the other side of the property-sovereignty equation
from the arguments raised in the Native Title Act Case. That is, in this debate, the
proprietor is conceived of as sovereign over its property: the rivers are identified with
property, the states as their owners, and it is said to follow that the state should have
sovereignty over them. The argument fails at each stage. Higgins showed how
problematic it was to talk of the rivers as property. Even if they can be so regarded that
fact does not identify their 'owner'. And the elision of property and sovereignty is
plainly problematic in any coordinate federal system. But that is not the only point.
The rhetoric of property and ownership parallels the rhetoric of territory and
sovereignty. Each appeals to notions of exclusive control over a resource – expressed in
Blackstone's influential conceptions of property on the one hand as a person's 'free use,
enjoyment and disposal of all his possessions' and his or her 'sole and despotic
_____________________________________________________________________________________
94
CD Melbourne 1898 (1 February 1898), above n 2, 406.
95
CD Melbourne 1898 (21 January 1898), above n 2, 32–3.
96
Ibid 34.
97
Ibid 37.
98
CD Melbourne 1898 (21 January 1898), above n 2, 60–1. O'Connor was not persuaded: 'Now
that is a very pretty rhetorical figure, but by the same process of reasoning I have heard
gentlemen satisfy themselves that there is no such things as property at all, that "all
property is robbery," and that we ought to "begin again".' (CD Melbourne 1898 (24 January
1898), above n 2, 64.)
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dominion' over the external things of the world,99 and of sovereignty on the other
hand as the 'supreme, irresistible, absolute, uncontrolled authority' necessarily
possessed by some agency over a territory.100 The appeal of these conceptions is
strong. It was deployed strategically on all sides of the debates as a political argument
in the search for a political solution to the problems of federation. This is a useful
reminder of the nature of the Conventions and the mistake of attempting to read them
as a coherent statement of one vision for federated Australia.
III.
PROPERTY AND THE POLITICAL CONTEXT OF FEDERATION
In the previous Section, I focused principally on property as it appears in the
Constitution. In this Section, my focus is broader. I discuss the striking ways in which
property, as a political concept, influenced debate at the Conventions on constitutional
provisions that do not themselves deal with property. In Parts IIIA and IIIB, I discuss
how property influenced debate on two key issues that are not explicitly linked with
property, first, the availability of appeals from Australian courts to the Privy Council
and, secondly, the franchise and membership of the Commonwealth Parliament. In
Part IIIC, I discuss the limits of property and how it becomes invisible in discussion of
women's and indigenous people's interests.
A.
Property, the Privy Council and the Objects of Government
The property lawyer's traditional concern with clarity and certainty of property rights
and the impartial determination of property disputes permeated the Debates. Some of
the Framers were, of course, sceptical of the claims for certainty:
I do not think that we can, in human affairs, prevent the possibility of some doubt. We
have only to get as near absolute certainty as we can. We know that things are always
changing in the management of property and of public and private affairs. It is
impossible to reduce to a specific and certain rule anything that involves the rights of
mankind. That never has been done yet, and we cannot do it in this Constitution.101
But the predominant view was in favour of clarity and certainty.102 The great concern
was ensuring that public and private investment in Australia, particularly inward
investment, was not threatened by federation.103
This concern was put most robustly in relation to the question whether it should be
possible to bring an appeal from the decisions of Australian courts to the Privy
Council. Concern with property rights was not the only issue here. The Framers were
split between those who wanted a strong national supreme court and those who
wanted to retain the Imperial link to the Privy Council. Both were important symbols
with strong resonances. Costs were also an issue104 as were the Privy Councillors'
_____________________________________________________________________________________
99
Blackstone, above n 61, vol 1, 138, and vol 2, 2.
100 Ibid vol 1, 49.
101 Symon, CD Melbourne 1898 (2 February 1898), above n 2, 438.
102 Including in relation to the rivers: Carruthers, CD Melbourne 1898 (1 February 1898), above
n 2, 389; Reid, CD Melbourne 1898 (4 February 1898), above n 2, 579; Carruthers, CD
Melbourne 1898 (7 March 1898), above n 2, 1955.
103 Ibid. See also Wise, CD Melbourne 1898 (24 January 1898), above n 2, 105; Carruthers, CD
Melbourne 1898 (1 February 1898), above n 2, 393.
104 Abbott, CD Melbourne 1898 (11 March 1898), above n 2, 2292.
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knowledge of local property conditions105 and the relative qualities of local judges and
the members of the Privy Council.106 But of the practical (as opposed to symbolic)
issues, the interests of 'property' and 'capital' featured most strongly.
In 1891, one speaker identified the fear of many: terminating appeals to the Privy
Council would have the effect of 'stopping capital from flowing into this country'.107
Another said:
[A] vast amount of English capital is invested in these colonies, … and I apprehend that
the owners of capital and the projectors of business in the old country will view with
anything but satisfaction a determination on the part of these colonies to prohibit them in
the case of a conflict involving large interests on their part from having the opinion of the
best judges in the land upon the question involved.108
A third adopted an argument made by Richmond J of the Supreme Court of New
Zealand in an 1891 letter to Parkes:
The confidence with which investments of all sorts are now made in Australasia by
people at home must be largely due to the knowledge that rights of property will be dealt
with here by the Law Courts on British principles of justice, and subject to final review by
one of the highest English courts.109
But Higgins and Isaacs were doubtful of the effect of the availability of an appeal to
the Privy Council on British capitalists' investment decisions:
Another point raised is that British capital will be terrified from investment in Australia if
we keep this High Court only. Does anyone say that British capital has been kept away
from the United States because the States have not got an appeal to Great Britain? We
know that British capital flows more readily there than to Australia … As British capital
flows to the States so it will flow to Australia, so long as Australia keeps its settled
condition and shows its wholesome dread of any violent changes.110
The British capitalist, when he considers whether he will invest his money here, will ask,
not what is likely to be the decision of a court of law in a contest, but what is our
legislation. He will ask what are the laws which govern the subject-matter on which he is
asked to invest his money. … He is never looking to the courts of law for an ultimate
decision. He is not apprehending the question of litigation. He relies on the honour and
integrity of those with whom he is dealing, and all he asks and likes to see is what is the
legislation on the subject.111
Typically, the solution adopted in the Draft Bill adopted by the 1898 Convention
was a compromise. Clause 74 provided that no appeal lay to the Privy Council in any
matter involving the Commonwealth or State constitutions 'unless the public interests
of some part of Her Majesty's Dominions, other than the Commonwealth or a State, are
involved'.112 Appeals were possible in other matters by special leave granted by the
_____________________________________________________________________________________
105 Ibid 2287; contrast Carruthers, CD Melbourne 1898 (11 March 1898), above n 2, 2313.
106 Higgins, CD Adelaide 1897 (20 April 1897), above n 2, 987.
107 Fitzgerald, CD Sydney 1891 (9 March 1891), above n 2, 173.
108 Wrixon, CD Sydney 1891 (1 April 1891), above n 2, 541.
109 Abbott, CD Adelaide 1897 (20 April 1897), above n 2, 971 (and see more generally, ibid 970–
2). Richmond’s letter was received by the 1891 Convention and ordered to be printed,
together with Clark’s notes on the letter: CD Sydney 1891 (24 March 1891), above n 2, 510511.
110 Higgins, CD Adelaide 1897 (20 April 1897), above n 2, 988.
111 Isaacs, CD Melbourne 1898 (11 March 1898), above n 2, 2316.
112 1898 Draft Bill, above n 2, cl 74.
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Queen, however, the Parliament could limit the matters in which leave might be
sought.
The 1898 Draft Bill was not the end of the story. Even after the text of the
Constitution was approved by the Australian people at referenda, it still had to be
enacted by the Imperial Parliament. Contrary to the view taken in Australia, the British
government preferred that the right to seek leave to appeal not be restricted. After
intense lobbying in London by Australian delegates and debate in the Imperial
Parliament, a compromise was reached and the question was eventually resolved in
the terms of the current s 74: the High Court could itself grant leave in certain
constitutional cases and the Australian Parliament could limit the other matters in
which leave might be sought.113
The concern with protecting property rights that in large part drove the debate on
Privy Council appeals is representative of a larger concern with property and the
objects of government. Parkes was more explicitly libertarian (at least in his rhetoric)
than most others:
Government, I apprehend, on any just, honest, not to say any philosophical basis, is a
contrivance which is found necessary in a community of men to protect their rights, and
property, and their liberty, to enforce their laws, and to repress crime; and whatever form
this government assumes, the true principle is to call upon the people for whom this
government is necessary, in the form of taxation, for just such sacrifices as may be
necessary to support it. I am one of those who hold it to be a fundamental wrong to
impose burdens upon a free people for any purpose whatever than the purpose of
sustaining necessary institutions under a settled government; and in that case the taxes
should be raised in the manner most consistent with liberty, the manner which will least
interfere with the free actions of the citizens, and the manner which will be least
oppressive as a pecuniary burden.114
The Debates contain many statements to the effect that the role of government is the
protection of 'life and property' or 'life, liberty and property'.115 Downer regarded
property and life as 'the most sacred of all subjects'.116 Symon said:
He speaks of our financial interests, and we hear of the great bogie of the rights of
property. I have as great a desire to maintain the rights of property as he has. I do not
believe in the sacred rights of contract being wantonly interfered with. I do not believe in
sacred rights of property being assailed unnecessarily.117
Of course, a commitment to the protection of life, property and liberty is not
necessarily an evenhanded commitment to the protection of every person's life,
_____________________________________________________________________________________
113 The story is told in more detail in, for example, Hon Sir Gerard Brennan AC KBE,
'Centenary of the Enactment of the Commonwealth of Australia Constitution Act' (2001) 75
Australian Law Journal 31, 32–3.
114 CD Sydney 1891 (13 March 1891), above n 2, 315. Compare his Burkean vision of the ideal
senate: ibid 319.
115 See, for example, Hall, CD Melbourne 1890 (12 February 1890), above n 2, 184; Wise, CD
Sydney 1897 (10 September 1897), above n 2, 326 (quoting Story J); Isaacs, CD Melbourne
1898 (9 February 1898), above n 2, 722; Deakin, CD Melbourne 1898 (8 March 1898), above n
2, 2042.
116 CD Adelaide 1897 (20 April 1897), above n 2, 975 (in debate on a provision limiting appeals
from Australian courts to the Privy Council); referred to by Higgins, CD Melbourne 1898
(31 January 1898), above n 2, 338–9.
117 CD Adelaide 1897 (20 April 1897), above n 2, 983.
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property and liberty. The Tasmanian proposal that the Constitution should include a
provision corresponding to the American 14th Amendment (which would have
prevented states from depriving any person of their property without due process of
law) was defeated, not out of any lack of solicitude for property rights but largely out
of concerns that it would prohibit racially discriminatory state legislation.118 Inglis
Clark was atypical among the Framers in perceiving how rhetoric about the protection
of property and liberty could be used to justify legislation that protected sectional
interests:
[W]e know that the law is often used as a means of effecting indirectly some ulterior
purpose, also for the purposes of class or special interests. The game laws of England
occupied in former years, and occupy now to a certain extent, a foremost place in the
provisions of British criminal legislation. We know what detestable and abominable laws
they were, and we know that they were introduced not for the protection of life and
property and individual liberty in the ordinary sense – not for the same purpose as that
for which you make murder or forgery a crime – but for the conservation of certain class
interests and class privileges.119
On the other hand, many Framers found it difficult to see in debate how their position
reflected and protected their class position. This was particularly the case in the debate
on the franchise for elections to and eligibility for membership of the Commonwealth
Parliament, which I consider next.
B.
Property and the Franchise
Two important tasks facing the Framers were to determine how the members of the
Commonwealth Parliament were to be chosen and, if they were to be elected, to define
the franchise that was to apply. Unsurprisingly, property concerns powerfully
influenced the debate on these questions.
1.
The 1891 Convention
The 1891 Convention, following the Draft Bill that Inglis Clark had prepared and the
then prevailing American position, resolved that the Senate would be chosen by the
members of the State Parliaments.120 At the time of federation, several of the colonies
restricted the franchise to adult male property owners.121 For example, in Victoria
although adult male suffrage applied for elections to the Legislative Assembly
following s 128 of the Constitution Act Amendment Act 1890 (Vic),122 the Legislative
_____________________________________________________________________________________
118 CD Melbourne 1898 (8 February 1898), above n 2, 667–90; CD Melbourne 1898 (3 March
1898), above n 2, 1791–1802. The Tasmanian proposal was in the following terms:
The citizens of each state, and all other persons owing allegiance to the Queen and
residing in any territory of the Commonwealth, shall be citizens of the
Commonwealth, and shall be entitled to all the privileges and immunities of
citizens of the Commonwealth in the several states, and a state shall not make or
enforce any law abridging any privilege or immunity of citizens of the
Commonwealth, nor shall a state deprive any person of life, liberty, or property
without due process of law, or deny to any person within its jurisdiction the equal
protection of its laws.
119 CD Sydney 1891 (11 March 1891), above n 2, 252. Compare EP Thompson, Whigs and
Hunters: The Origin of the Black Act (1975).
120 1891 Draft Bill, above n 2, ch 1, cll 9 and 10.
121 See McGinty v Western Australia (1996) 186 CLR 140, 242–3.
122 See Quick and Garran, above n 30, 57.
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Council franchise was more restricted and required that the elector hold land for life
with an annual value of at least £10 (or hold land that, for a term of at least five years,
had an annual value of at least £25).123 On the other hand, in New South Wales, adult
male suffrage prevailed in the Legislative Assembly but the Legislative Council was
appointed rather than elected.124 Queensland and Western Australia permitted plural
voting by voters who owned property in more than one electorate although Western
Australia extended the franchise to adult females as well as males.125
Understandably, the differences in the colonial franchises provided a point of
division in the definition of the national franchise. Opponents of property
qualifications objected to the Senate being chosen by the State Parliaments for so long
as those Parliaments were appointed from among the propertied class or elected on a
property franchise. Grey perceived a risk that 'power may fall almost entirely into the
hands of capital', which dominated the colonial upper houses.126 He was quite direct
in identifying why he thought the Convention largely supported such a proposal:
[Y]ou propose then to establish a machinery made up of the existing machineries which
will enable you to hold every one of the advantageous powers that you have now in your
possession.127
Deakin observed that the proposal would
endow members of nominee houses with power equivalent to that of members of elective
houses, and [would] endow members elected by a limited franchise with equal power so
far as their numbers go to that exercised by the popular branch of the legislature.128
His counter-proposal was that the State governments should nominate the senators and
be responsible for their nomination.
_____________________________________________________________________________________
123 Constitution Act Amendment Act 1890 (Vic) ss 43-45, 50-51. Certain professional and military
men were exempted from the property requirements. See Quick and Garran, above n 30,
57.
124 See Quick and Garran, above n 30, 48.
125 Ibid 71, 74.
126 CD Sydney 1891 (2 April 1891), above n 2, 598. See also CD Sydney 1891 (9 April 1891),
above n 2, 926.
127 CD Sydney 1891 (2 April 1891), above n 2, 634. See also his comments on property
qualifications for membership of the Parliament (CD Sydney 1891 (18 March 1891), above n
2, 487) and on the unfairness of plural voting based on property ownership (CD Sydney
1891 (6 April 1891), above n 2, 750–1; CD Sydney 1891 (8 April 1891), above n 2, 889–90; CD
Sydney 1891 (9 April 1891), above n 2, 926–7). Contrast CD Sydney 1891 (6 April 1891),
above n 2, 751:
The state legislatures are not allowed to represent the people, but are forced by the
present laws to represent capital, and, that being so, hon. members say that the state
legislatures shall elect the senate – that is, a constituency unfairly and unjustly
created is to return the senate – and then hon. members debate as if it were a matter
of the greatest consequence to the liberties of the people of this country whether the
senate or the house of representatives shall have the greater power. What care we
for their power? It is the power of capital alone, and squabbles between two parties
of capitalists little interest the people at large.
with CD Sydney 1891 (6 April 1891), above n 2, 753, where he extols the democratic
composition of the Senate (whose members need not satisfy any property qualification) and
urges that its powers not be limited.
128 CD Sydney 1891 (2 April 1891), above n 2, 591–2.
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On the other hand, some (whether optimistically or somewhat blindly) saw no
reason to believe that the Senate would represent property-owners despite the manner
in which its members were chosen.129 Rutledge was much influenced by Bryce's
assessment of the American Senate whose members at this time were appointed by the
state legislatures:
Both [the Senate and the House of Representatives] equally represent the people, the
whole people, and nothing but the people. The individual members come from the same
classes of the community; and though there are more rich men (in proportion to
numbers) in the Senate than in the House, the influence of capital is not markedly
greater.130
Accordingly, as he thought that the Senate would not be significantly different in
character from the House, he saw no objection to giving the two Houses equal
powers.131
But Gillies appeared to be entirely oblivious to the different treatment of those with
and without property. He responded indignantly to claims that the Victorian
Legislative Council represented a property class:
A property class! Every man in these colonies, I am glad to say, is a propertied man. I
believe that you cannot go to any part of the world where there is such a large proportion
of the population who have got something. You cannot go down the street without
seeing every one pretty well dressed. Of course there are occasions in every great city
when a certain number of persons are unable to obtain work; but I venture to say that
every hardworking, determined, sober-minded, honest man can throughout the greater
portion of the year get work. … [I]n all the colonies there are large sums of money in the
savings banks, and in the various institutions where the people can lodge their money
and get a considerable amount of interest. … There are a few people who, through hard
work, thrift, and good opportunities, have acquired great wealth, a fact to which I have
no objection, and am sure that everybody would like to see everybody else in a
comfortable position; but as to talking about the working-classes as contra-distinguished
from any other classes in the state, I venture to say that we are all members of the
working-classes … and to create such distinctions is quite unnecessary. I pointed out that
in Victoria the suffrage is so low that the great body of the working-men – I mean men
who work every day with their hands, tradesmen and others – have votes for the
Legislative Council, and the members of the council see that they are under a great
responsibility in representing such a large constituency.132
_____________________________________________________________________________________
129 For example McIlwraith, CD Sydney 1891 (5 March 1891), above n 2, 63. There were other
reasons for having the State Parliaments chose Senators other than preference for propertyinterests. Griffith saw it as a way of ensuring uniformity: if selection was instead in
accordance with legislation enacted in each State, 'in one state they might represent the
property-holders of the state, and in another state universal suffrage, and one man one
vote' (CD Sydney 1891 (2 April 1891), above n 2, 591).
130 CD Sydney 1891 (9 March 1891), above n 2, 148. Bryce was an English commentator on the
American political and constitutional system. His The American Commonwealth (first
published 1888, 3rd ed, 1893–1895) was much quoted at the Conventions. The United States
moved to popular election of senators in 1913 on the ratification of the 17th Amendment to
the United States Constitution.
131 CD Sydney 1891 (9 March 1891), above n 2, 143–50, especially 146–8.
132 CD Sydney 1891 (11 March 1891), above n 2, 235. Cuthbert said, 'I believe the Council now
represents 130,000 of what may be called the very pick and flower of the population of
Victoria. We have represented there both rich and poor. … We have every careful and
prudent man represented there'. (CD Sydney 1891 (12 March 1891), above n 2, 292.) It is
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South Australian delegates were in the vanguard of attempts to remove the
property qualification. Cockburn regarded the absence of a property qualification as a
matter of 'vital principle' in relation to which 'certain definite lines … should be laid
down as part of the constitution'.133 Accordingly, he proposed an amendment that
would have prevented the Parliament from imposing any property qualification.134
Munro developed a point also made by Cockburn in arguing that a property
qualification gave the lie to the ideal that the Houses be 'chosen by the people'.135 If the
Senate was to be appointed, its democratic legitimacy was lessened and Kingston
therefore objected to it having equal powers with the House of Representatives:
Instead of the senate representing the same body of electors as those who will return
members to the house of representatives, it will represent a much more limited class. …
What does that, amount to? It amounts to this: That an equal voice will be accorded in all
cases which are most favourable to the exercise of popular rights to a limited class,
representative not of the general body of the people, but of persons possessing a property
qualification.136
In Kingston's view, the likely class basis of the Senate also required that its powers be
limited to the protection of state interests137 and that it not have the power to amend or
originate taxing and spending bills.138
The issue of democratic principle, typically, fell away. Barton, following Downer's
pleas that the issue not be pressed as it could stand in the way of federation,139 instead
proposed that the Commonwealth Parliament have the power to define its own
franchise.140 This lead to a heated, but confused debate, as speakers objected to
Cockburn's and Barton's very different proposals on the same ground, that they
interfered too greatly with the states' rights to settle their own franchise and the basis
on which they were represented in the Federal Parliament. Ultimately both
amendments were defeated141 and the 1891 Convention produced a Draft Bill under
which the Senate would be appointed by the State Parliaments.
That was to change in 1897.
2.
The 1897-1898 Convention
In 1897, the Convention resolved to have the Senate directly elected by the people of
the States. But that position was not reached without debate, and it still left for decision
_____________________________________________________________________________________
worth comparing the Framers' ideas about poverty and pauperism in the debate seven
years later on the proposal that the Commonwealth have power with respect to invalid and
old-age pensions: CD Melbourne 1898 (21 January 1898), above n 2, 6-29; CD Melbourne
1898 (7 March 1898), above n 2, 1991–6. That debate largely concerned the federal issue
(that is, whether the Commonwealth or the States should be responsible for pensions)
rather than the merits of government-provided pensions and is accordingly not treated in
detail here.
133 CD Sydney 1891 (2 April 1891), above n 2, 613.
135 Ibid 615.
136 Kingston, CD Sydney 1891 (6 April 1891), above n 2, 736.
137 Ibid 736–7.
138 Ibid 735 (indicating his intention to vote against Baker's amendment: ibid 722).
140 Ibid 619–20.
141 Ibid 636–7.
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the question whether the franchise for the two Houses of the Federal Parliament would
be the same.
There was widespread support for the proposition that there should be no
property qualification for the members or electors of either house. Turner sought to
have this 'definitely and distinctly laid down' in the Constitution as Cockburn had six
years previously.142 Kingston argued:
We resist a limited franchise on a property qualification. Why? Not because of any
attempt to dictate to us, but because we did not believe in it. Similarly we advocate
female franchise, because we believe in it.143
Nonetheless, he favoured State rights to determine franchise lest the Federal
Parliament introduce its own property qualification or permit plural voting.144
Cockburn once again proposed (unsuccessfully) an amendment stating that no
property or income qualification should be required of any elector.145
However, some still feared that an elective Senate on a uniform franchise would not
eliminate the influence of property. In this vein, Howe argued that, if each State
consisted of only the one electorate for Senate elections, it was likely that the Senate
would effectively represent 'property' because of the costs of being a candidate for
such a large electorate.146 Accordingly, he proposed that each State should consist of
several Senate electorates.
Arrayed against these 'advanced democrats'147 were many who supported (more or
less clearly) the proposition that property as a class or as a concept ought to be
represented in the Parliament. The conservative position was summarised (but not
entirely endorsed) by Baker:
There are many people in these colonies who look upon this Constitution from a
conservative point of view. … They point out that this is a Constitution in which one set
of people – those who have little or no property – because they are the majority, will have
the power of dictating how the taxes shall be raised, and how the taxes shall be spent;
and that another set of people – those who have property, and are the minority – will pay
the taxes; that representation and taxation will not go hand in hand, because taxation will
be imposed by one class and paid by another.148
Accordingly, they sought the protection of a Senate that represented their interests.
Among the mildest of these conservatives, McMillan, unwilling to admit to wanting a
conservative Senate or one elected by a propertied class, still wanted the Senate to have
a distinctive character:
You must have no cry, "Here is the popular house representing the people (with a big 'P');
the other house represents capital, conservatism, and other elements." We do not want
that; what we want is that, while not giving any undue influence to the senate, we shall
keep up its character as a senate.149
_____________________________________________________________________________________
142 CD Adelaide 1897 (24 March 1897), above n 2, 38.
144 Ibid 726.
145 Ibid 732.
146 CD Sydney 1897 (13 September 1897), above n 2, 381.
147 Dobson, CD Adelaide 1897 (26 March 1897), above n 2, 196–7.
148 Baker, CD Melbourne 1898 (17 March 1898), above n 2, 2482.
149 CD Sydney 1897 (20 September 1897), above n 2, 815 (emphasis added).
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And in his view, if the Senate did not have a distinctive character (whatever that might
be), deadlocks between the Houses could not be resolved by sending both Houses to
the electorate.150 Others saw the distinct representation of property as required by
principle. In 1891, Douglas, objecting to residency requirements, had argued that
property ownership should be sufficient to establish a right to vote: '[I]f a man leaves
the colony for two or three years, still having property in it, when he returns he will
have to serve a sentence of five years' residence before he is eligible'.151 In 1897, Forrest
saw property-based (and plural) voting as justified by the interests of investors: 'We
think that where we have invested our capital and other people's capital in far-away
districts, we should have something to say as to the persons those districts should
return'.152 Zeal put the justification slightly differently; people who pay taxes on their
property are entitled to consideration in the political process:
Men who have to pay ways and means for the carrying on of the Government should get
some consideration, for it is not the men who are here to-day and gone to-morrow who
are held responsible.153
Dobson was the staunchest advocate of the representation of property. In his view,
the phrase 'one man one vote' was overtaken by the phrase 'one vote for manhood and
another for thrift':
There is a common opinion all the world over that the people are divided into two
classes, those who have and those who have not; and those who have, although some of
us have been born with a golden or silver spoon in our mouths, have generally acquired
their property by thrift, hard work, industry, and by the sweat of the brow or brain; and
the people who have, require, in my idea, far more consideration than those who have
not.154
Here is to be a Constitution in which we are absolutely giving property no representation
of any description. We are actually giving to men who have nothing, the absolute right to
tax all those who have and you are not giving to those who have any single direct voice
except what they get by election on manhood suffrage. … [T]here are two classes of
people, men who have something to pay their debts, and something in the way of
security to offer to the English lender; and on the other hand there are those – to some
extent the bone and sinew of the Commonwealth – who have nothing, men who can take
up their swag and go away, men who have no property of any description.155
But Dobson, like Gillies in 1891, did not think that he was favouring property for
property's sake: 'I do not want to be told that money-bags and property rule the world;
it is brains, intelligence and character which rule it'.156
Clearly property played an extraordinarily important part in the debate on the
franchise. But property qualifications – like women's suffrage – generated divisions
that ran too deep for an answer to be agreed and entrenched in the Constitution. So just
as there was no express guarantee of women's suffrage, there was no prohibition of a
property qualification. The 'advanced democrats' did succeed in ensuring that the
_____________________________________________________________________________________
150 Ibid. Compare Dobson, CD Melbourne 1898 (9 March 1898), above n 2, 2130.
155 CD Adelaide 1897 (15 April 1897), above n 2, 671. See also Dobson, CD Melbourne 1898 (8
March 1898), above n 2, 2026.
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franchise for the House of Representatives and the Senate would be the same157 and
there would be no plural voting.158 But the larger questions were left for resolution by
the political process. The Commonwealth Parliament was authorised (but not
required) to define the franchise for all Australia;159 the franchise so defined could be
uniform (but was not required to be); the franchise could be expansive (adult and with
no property qualification) or narrow (male and property-based) provided only that it
did not deprive any person of any right to vote they had for a State Legislative
Assembly as at 1901.160
The valuable lesson of the debate on the franchise, and property qualifications in
particular, is to remind present-day readers of the Constitution just how divided and
divisive opinion on the franchise was. The Framers were deeply committed to radically
opposed visions of the democratic polity. As Downer argued:
All are agreed that the members of the other House should be returned by the most
popular vote that can be obtained. The difference arises from the definition of what is the
most popular vote, South Australia considering that the most popular vote is adult
suffrage, others considering that it is manhood suffrage, and others again considering
that some property qualification ought to be imposed.161
As the majority of the High Court concluded in McGinty v Western Australia,162 this
makes it virtually impossible for any interpreter with originalist commitments to draw
any implications about the franchise or equality of voting power from the Debates.
C.
The Rights of Women and Indigenous Peoples
Race and gender were major issues at the Conventions. On race, the Framers
considered whether the Commonwealth or the States should be responsible for
immigration, which in context meant restricting immigration and controlling 'alien
races' within Australia.163 A proposal that a version of the American 14th Amendment
be adopted was defeated largely because of fears that it would prevent states from
discriminating against people of certain races in their factory and mining legislation.164
The Framers excluded indigenous Australians when counting the number of the
people of the Commonwealth in order to apportion the seats in the House of
Representatives between the States.165 They excluded them also from the power to
make special laws for the people of any race.166 South Australian delegates and some
others fought a long and only partially successful campaign to include a guarantee of
_____________________________________________________________________________________
157 Australian Constitution s 8.
158 Australian Constitution ss 30, 8.
159 Australian Constitution ss 30, 8 and 51(xxxvi).
162 (1996) 136 CLR 140.
163 See generally John Williams, 'Race, Citizenship and the Formation of the Australian
Constitution: Andrew Inglis Clark and the "14th Amendment"' (1996) 42 Australian Journal
of Politics and History 10.
164 Ibid. See text above n 118.
165 Australian Constitution s 127. The section was repealed by the Constitution Alteration
(Aboriginals) 1967.
166 Australian Constitution s 51(xxvi). The exclusion of 'the aboriginal race' from s 51(xxvi) was
repealed by the Constitution Alteration (Aboriginals) 1967.
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women's suffrage.167 And the Framers ensured effectively that women's votes would
not be counted in referenda in States where adult suffrage prevailed until adult
suffrage was uniformly adopted.168
However, in all this discussion, the Debates include virtually no mention of the
property rights of indigenous peoples and women. The property rights of indigenous
peoples appear to have been mentioned only by the Western Australian Sir George
Grey at the close of the 1891 Convention and by Captain Russell, a New Zealand
delegate to the 1890 and 1891 Conventions.
Grey was concerned about corruption and self-dealing by propertied interests in
colonial upper-houses169 and incidentally touched on the consequences for Australia's
indigenous population:
I could prove that acts of the greatest cruelty have arisen from the causes of which I
speak; that great tracts of land – hon. members may laugh – have been under their
influence given away in a manner in which they ought not to have been; and that in
consequence of regulations to which I object, people of the native races have been
expelled from their territory without the least compensation of any kind whatever,
purposely that the land might be given to certain persons.170
Russell was concerned to draw attention to the differences between his colony and
the Australian colonies.171 After outlining the physical differences, he said:
Not only have the settlers [of New Zealand] had to struggle against the forces of nature
but against a proud, indomitable, and courageous race of aborigines. That native race has
been treated in a manner so considerate that the condition of no other native and savage
race on the face of the globe can be compared to it. Their right to their lands was
recognised from the first. … [W]e recognised their right to their own land, and instead of
confiscating it we admitted their claim to its full possession, administration, and
disposal.172
Russell was ambivalent about whether the explanation for this was fear of the
indigenous population or the influence of the 'missionary zeal' of the white settlers. But
he felt it had a material relevance to federation. 'Native administration' was an
important issue for New Zealand and could not be confidently handed over to a
Parliament, dominated by Australians who knew nothing about it and who had 'dealt
with native races in a much more summary manner than we have ventured to deal
with ours in New Zealand':
It is extremely improbable that hostilities would again break out between the natives and
the white settlers, but the advance of civilization would be enormously delayed if the
_____________________________________________________________________________________
169 See text above n 126 and n 127.
170 CD Sydney 1891 (9 April 1891), above n 2, 927. Contrast Reid's attitude, expressed some
years later:
Fortunately, there were no complications in regard to title; the aboriginals were as
incapable of bargaining successfully as they were of fighting successfully. The Maoris
of New Zealand were quite the opposite. They were just as keen in making a bargain
as they were valiant in warfare. Hence this noble native race still possesses some of
the most valuable estates in New Zealand. (Sir George Houston Reid, My
Reminiscences (1917) 17–18).
171 CD Melbourne 1890 (11 February 1890), above n 2, 125–6.
172 Ibid.
2001
149
____________________________________________________________________________________
regulation of this question affecting New Zealand was handed over to a body of
gentlemen who knew nothing whatever of the traditions of the past.173
In 1891, he returned to the theme in arguing for a loose federation rather than a
close, centralised, one. Questions of native title were matters 'of very grave moment'
and any interruption in Maori relations 'might be of the most serious importance'.174
Accordingly safeguards would be required before these matters were subjected to
federal authority. As for Australia itself:
[I]n the colonies of northern Australia, you yourselves may yet find that you have
difficulties unforeseen to cope with. It is true that the native races of the more settled
portions of Australia have given you but little trouble, and you have dealt with them
summarily, but possibly when you go to northern Australia you will find there a race
more resolute and more difficult to deal with. 175
There is no recorded response to these parts of Russell's remarks from the other
Framers. In the context of federation, the property rights of Australia's indigenous
peoples simply did not feature as an issue.
Equally, the property rights of women were not perceived as raising issues for
debate. Property and civil rights had been defined as a state matter in the 1891
Convention so to some extent this is not surprising.176 But the effect of marriage and
divorce on women's property rights were not mentioned when the Framers debated
the Commonwealth's proposed legislative powers with respect to those topics.177 They
were far more interested in the lack of uniformity between the colonies in the grounds
on which a divorce might be granted. Again, it was only Captain Russell who raised
the issue and then only in the context of a somewhat tortured analogy. New South
Wales, Victoria and Queensland had once formed part of the one colony, he said.
There is no reason why they should not be reunited, and if they are reunited it will be a
marriage of affection. It will be a case of neighbours whose sons and daughters have
married together in order to bring divided lands into one solid property. It will be a
marriage of affection if these colonies come together. But with New Zealand it would be
simply a mariage de convenance, and her representatives must see that the marriage
settlements are not drawn out in a hurry, that before the masculine power and strength of
Australia was united to the beauty of New Zealand the settlements are so arranged that
the Married Women's Property Act shall have full force in case of any little dispute
occurring hereafter. 178
_____________________________________________________________________________________
173 Ibid 126.
174 CD Sydney 1891 (5 March 1891), above n 2, 66.
175 Ibid.
176 See above Section II(B).
177 CD Sydney 1897 (22 September 1897), above n 2, 1077–85 (including debate on the
proposed power with respect to parental rights and the custody and guardianship of
infants).
178 CD Melbourne 1890 (11 February 1890), above n 2, 128–9. In 1891, Deakin referred to these
remarks:
He was careful to tell us that we must not at the present time expect anything from
New Zealand; but he laid down with great fulness and freedom the duties which
we immediately owed to that most beautiful, important, and wealthy colony, whose
position, he led us to understand, was that of the coy maiden, not unwilling, and
indeed expecting, to be courted, and whose consent would be granted by-and-by as
a favour. (CD Sydney 1891 (5 March 1891), above n 2, 68–9).
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The marriage analogy was pursued by a number of Framers.179
In the previous Sections, I have demonstrated the power of property as a tool of
political argument at the Conventions. Here property is silent. The Married Women's
Property Act may have recognised married women's separate property interests. But
within the Conventions at least those interests were invisible. And despite the New
Zealand example, indigenous Australian's property interests were to remain invisible
to the legal system for some time to come.
IV.
ASSESSMENT:
GOVERNMENT
PROPERTY
AND
THE
BUSINESS
OF
What, then, are the lessons of this study of property at the Conventions?
First, it demonstrates just how little assistance the Debates provide in interpreting
the references to property in the Constitution. Section 51(xxxi) and s 114, the two
provisions with greatest contemporary interest, were considered briefly and
superficially. Their intended meaning is not significantly clarified by the Debates.
Property as a concept is taken as a starting point on which the provisions operate and
not as something requiring elucidation.
Secondly, it reminds us of what the Conventions were. Looking outwards from the
Conventions, we are reminded that the they were only part of the process of
federation. Federation was a social movement and a study of the Conventions can only
present one snapshot of a much wider and extremely complex process. Looking
inwards at the Conventions, we are reminded that they were gatherings of colonial
politicians engaged on the business of federation. The Framers were political
practitioners, not political scientists. So, although there are passing references to
Blackstone, Marx and Proudhon, the debate was not oriented towards the latest
speculations on the nature of property. Moreover, property considerations were just
some among many in the search for a constitution; in particular, a constitution that
would commend itself to a majority of voters in each of the colonies, not the ideal
constitution envisaged by any particular political theory.
Property, then, was used for its rhetorical appeal in a fundamentally political
debate. It took its place in the competition between those who favoured a strong and
financially well-equipped national government and those who favoured strong states
and a small national government; between those who favoured a national supreme
court at the apex of the judicial system and those who favoured retaining Imperial
links; between those who favoured a democratic system drawn on broad lines and
those who favoured a more conservative approach. It was a potent rallying cry for
supporters and opponents of these positions, but it provided an answer to none. The
concept of property employed by the Framers was ultimately a hollow one.
_____________________________________________________________________________________
179 Hackett, CD Sydney 1891 (12 March 1891), above n 2, 275; Deakin, CD Melbourne 1890 (13
February 1890), above n 2, 106; Cockburn, CD Sydney 1891 (10 March 1891), above n 2, 196;
Abbot, CD Sydney 1891 (12 March 1891), above n 2, 298–9; Deakin, CD Melbourne 1898 (17
March 1898), above n 2, 2500; Barton, CD Adelaide 1897 (21 April 1897), above n 2, 1108.
COMMONWEALTH IMMUNITY AS A CONSTITUTIONAL
IMPLICATION
Catherine Penhallurick*
INTRODUCTION
The existence and potential scope of a Commonwealth constitutional immunity from
State law has been a vexed issue ever since the High Court decided its first case on this
question in 19041 There have been major shifts in the approach of the Court over the
last century, and the doctrines expounded by the Court have been subjected to an
unusually large volume of academic criticism.2 The operation of Section 64 of the
Judiciary Act 1903 (Cth),3 together with the presumption of crown immunity,4 have in
_____________________________________________________________________________________
*
BA, LLB (Hons) (ANU). This article is a revised version of an honours thesis completed at
the Australian National University Faculty of Law. I would like to thank Adrienne Stone,
Matthew Darke, Geraldine Chin and Amelia Simpson for their assistance with this article.
1
D'Emden v Pedder (1904) 1 CLR 91. See, eg, Geoffrey Sawer, Australian Federalism in the
Courts (1967) 126.
2
Nicolee Dixon, 'Limiting the Doctrine of Intergovernmental Immunity' (1993) 9 Queensland
University of Technology Law Journal 1; John Doyle, '1947 Revisited: The Immunity of the
Commonwealth from State Law' in Geoffrey Lindell (ed), Future Directions in Australian
Constitutional Law, (1994); Gareth Evans, 'Rethinking Commonwealth Immunity' (1972) 8
Melbourne University Law Review 521; Colin Howard, 'Some Problems of Commonwealth
Immunity and Exclusive Legislative Powers' (1972) 5 Federal Law Review 31; HP Lee,
'Commonwealth Liability to State Law — The Enigmatic Case of Pirrie v McFarlane' (1987)
17 Federal Law Review 132; RP Meagher and WMC Gummow, 'Sir Owen Dixon's Heresy'
(1980) 54 Australian Law Journal 25; Igor Mescher, 'Wither Commonwealth Immunity' (1998)
17 Australian Bar Review 23; Ronald Sackville, 'The Doctrine of the Immunity of
Instrumentalities in the United States and Australia: A Comparative Analysis' (1969) 7
Melbourne University Law Review 15; Geoffrey Sawer, 'State Statutes and the
Commonwealth' (1961) 1 University of Tasmania Law Review 580; Leslie Zines, 'Sir Owen
Dixon's Theory of Federalism' (1965) 1 Federal Law Review 221.
3
This provision has the effect of submitting the Commonwealth to State law once a 'suit' has
commenced. See, eg, Susan Kneebone, 'Claims Against the Commonwealth and States and
their Instrumentalities in Federal Jurisdiction: Section 64 of the Judiciary Act' (1996) 24
Federal Law Review 93; see also below n 6.
4
There is a now rather weak presumption that the Crown is not bound by the general words
of statutory provisions. See especially Bropho v Western Australia (1990) 171 CLR 1, 23. See
also Commonwealth v Western Australia (1999) 196 CLR 392, 410 (Gleeson CJ and Gaudron
J).
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many cases prevented the question of constitutional immunity from arising.5 There
are, however, a range of situations in which the constitutional issue will still arise.6
More importantly, the Commonwealth immunity from State law remains a highly
relevant topic because of the significance of the constitutional issues that it raises. The
debate over the existence and scope of the immunity reflects a broader uncertainty as
to the form of federalism created by the Australian Constitution.7
In this article, I will argue that the Commonwealth immunity from State law must
be recognised as a constitutional implication. Although there has been some
acknowledgment that the immunity is an implication, there has been little
consideration of the consequences that might follow from this.8
My contention is that the recognition that the Commonwealth immunity is a
constitutional implication has major consequences. The Commonwealth immunity has
developed in isolation from broader principles of constitutional law, but it must now
be reconciled with these principles. Specifically, the implication of Commonwealth
immunity must be drawn in a way that is consistent with the approach to implications
which has been articulated by the Court; that is, any immunity must be limited to what
is necessary to preserve the text and structure of the Constitution.
The structure of my argument will be as follows. Part I will outline the
development of the Commonwealth immunity doctrine, and show why the doctrine
must be recognised as an implication. Part II will outline the approach developed by
the Court to the drawing of constitutional implications. Part III will analyse the current
doctrine of Commonwealth immunity according to these principles. Part IV I will
argue that, given the Commonwealth's ability to protect itself using Section 109, no
form of Commonwealth immunity from State law should be implied from the
Constitution.
PART I: THE DOCTRINE OF COMMONWEALTH IMMUNITY AND ITS
CONSTITUTIONAL BASIS
In 1904 the Commonwealth Deputy Postmaster-General for Tasmania argued before
the newly established High Court that he should not have to pay the two pence of
stamp duty on his salary as required by the State of Tasmania.9 In 1997, the Defence
Housing Authority sought to convince the Court that it should not be required to
submit to New South Wales residential tenancy laws which conferred on their landlord
a right to inspect the premises rented by the DHA.10 In these two cases, amongst
others, the High Court has been asked to determine whether the Commonwealth
_____________________________________________________________________________________
5
While both of these topics are, in practice, closely connected to the issue of Commonwealth
constitutional immunity, they are beyond the scope of this article.
6
For instance, where Section 64 does not apply because there is no 'suit'. See Kneebone,
above n 3.
7
Mark Gladman, 'Re the Residential Tenancies Tribunal of NSW and Henderson; Ex Parte Defence
Housing Authority (1997) 190 CLR 410: States' Power to Bind the Commonwealth' (1998) 27
Federal Law Review 151, 151; Doyle, above n 2, 49, 68–72; Sackville, above n 2, 15.
8
Doyle, above n 2; Jeremy Kirk, 'Constitutional Implications from Representative
Democracy' (1995) 23 Federal Law Review 37, 67.
9
D'Emden v Pedder (1904) 1 CLR 91.
10
Re Residential Tenancies Tribunal (NSW); Ex Parte Defence Housing Authority (1997) 190 CLR
410 ('Residential Tenancies').
2001
153
____________________________________________________________________________________
Crown (or Executive), and its agents, possess any immunity from the application of
State laws.
The text of the Constitution gives the Court no immediately clear answer to this
question. Section 109 states that where there is a conflict between Commonwealth and
State legislation, the Commonwealth legislation will prevail, but this provision gives
no express guidance as to a conflict between the executive power of the
Commonwealth and the legislative power of the States. Section 114, which states that
neither government may tax the property of another, provides only a limited form of
reciprocal immunity. Nor can the Court receive guidance from the intention of the
Constitutional founders,11 since the Constitutional Conventions contain few references
to the question of intergovernmental immunities and it is unclear whether the
founders intended that the Commonwealth would be bound by State law.12
In this Part, I will show that the Court has developed a doctrine of Commonwealth
immunity based on the idea that the States lack the power to make laws that affect the
Commonwealth in certain ways. I will then argue that this approach is incorrect
because the States do have such power, and that the only basis for Commonwealth
immunity is as an implication from the Constitution. Although there may appear to be
some circularity in this discussion of whether the immunity derives from a lack of
power on the part of the States or from an implication protecting the Commonwealth,
as will be seen in Part II, given the Court's cautious approach to the drawing of
constitutional implications, this is a crucial issue.
The approach of the Court to Commonwealth immunity
The most recent comprehensive consideration of the issue of Commonwealth
immunity from State law by the Court was in the case of Re Residential Tenancies
Tribunal (NSW) and Henderson; Ex Parte Defence Housing Authority,13 but in order to
understand this decision, it is necessary to examine the earlier cases.
The approach prior to the Residential Tenancies decision
In the early years of federation, the High Court applied the American doctrine of the
implied immunity of instrumentalities to the Australian Constitution,14 holding that
any attempt on the part of a State to interfere with the exercise of the Commonwealth's
executive or legislative authority, however minor, would be found invalid.15
In Amalgamated Society of Engineers v Adelaide Steamship Company Ltd ('Engineers'),16 a
majority of the Court rejected this doctrine as based on a 'vague, individual conception
of the spirit of the compact.'17 Analysing the Constitution according to the traditional
_____________________________________________________________________________________
11
Cole v Whitfield (1988) 165 CLR 360, 385.
12
Leslie Zines, 'The Federal Balance' in Gregory Craven (ed), The Convention Debates 1891–
1898: Commentaries, Indices and Guide (1986) 81–84.
13
(1997) 190 CLR 410. See also Commonwealth v Western Australia (1999) 196 CLR 392, 409
(Gleeson CJ and Gaudron J), 421 (McHugh J), 472 (Hayne J).
14
McCulloch v Maryland 17 US (4 Wheat) 316 (1819). See Sackville, above n 2, 19–24.
15
D'Emden v Pedder (1904) 1 CLR 91, 110–111 (Griffith CJ). The doctrine received a reciprocal
application in Federated Amalgamated Government Railway and Tramway Service Association v
New South Wales Railway Traffic Employees Association (1906) 4 CLR 488.
16
(1920) 28 CLR 129 ('Engineers').
17
Ibid 144 (Knox CJ, Isaacs, Rich and Starke JJ).
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principles of statutory interpretation left little room for the limitation of power
according to notions such as federalism. Although the facts of the case raised the issue
of State immunity from the Commonwealth, the majority stated that 'the principle we
apply to the Commonwealth we apply also to the States, leaving their respective acts of
legislation full operation within their respective areas and subject matters.'18 In Pirrie v
McFarlane,19 a majority of the Court applied the Engineers decision in order to find that
a Commonwealth soldier was required to hold a state driving licence.20 As Starke J
explained, 'the argument denying the power of the States to affect Commonwealth
officers based upon some prohibition expressed or implied in the Constitution can no
longer be sustained.'21
It was not long, though, before a new doctrine of intergovernmental immunities
began to emerge from the judgments of Sir Owen Dixon. Following obiter dicta
comments in West v Commissioner of Taxation (NSW)22 and Federal Commissioner of
Taxation v Official Liquidator of EO Farley Ltd,23 Dixon J and a majority of the Court held
in Melbourne Corporation v Commonwealth24 that the States had a form of immunity from
certain Commonwealth laws.25 The pre-Engineers immunity had been reciprocal, but
Dixon J indicated in Melbourne Corporation that the Commonwealth's immunity from
the States would differ in both its origins and in its scope from the immunity possessed
by the States.26
In the same year as Melbourne Corporation was decided, the issue of Commonwealth
immunity arose before the Court in In Re Foreman & Sons Pty Ltd; Uther v Federal
Commissioner of Taxation,27 in relation to a New South Wales companies law which
removed any priority for debts possessed by the Crown in right of the Commonwealth.
The Crown's priority in the collection of debts is a prerogative right, and so this case
raised the question of whether, as Engineers had hinted, the general principle that the
States and Commonwealth could legislate for one another was subject to an exception
in relation to prerogative rights.28 A majority of the Court found that the New South
Wales Act could validly abolish or restrict the prerogative right of the Crown in right
of the Commonwealth to the payment of debt.29 In the majority in Uther, Latham CJ
held that, as the Commonwealth had in Section 109, a means of protecting itself against
legislation which impaired or interfered with the performance of Commonwealth
legislation, unlike the States, it had no need of judicial protection.30
_____________________________________________________________________________________
18
Ibid 155.
19
(1925) 36 CLR 170.
20
The majority consisted of Knox CJ, Higgins and Starke JJ. Isaacs and Rich JJ dissented for
reasons unconnected with any principle of immunity.
21
Pirrie v McFarlane (1925) 36 CLR 170, 226–227.
22
(1937) 56 CLR 657, 681–683 (Dixon J) ('West').
23
(1940) 63 CLR 278, 299 (Dixon J).
24
(1947) 74 CLR 31 ('Melbourne Corporation').
25
Ibid 66 (Rich J), 70 (Starke J), 83 (Dixon J).
26
Ibid 82.
27
(1947) 74 CLR 508 ('Uther').
28
Engineers (1920) 28 CLR 129, 143–144. See also Leslie Zines, above n 2, 225–227.
29
Uther (1947) 74 CLR 508, 513 (Latham CJ), 522 (Rich J), 524 (Starke J), 536 (Williams J).
30
Ibid 520–521. See below Pt IV.
2001
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Dixon J dissented in Uther, arguing that the State law was invalid in its application
to the Commonwealth.31 In contrast to Latham CJ, his Honour argued that the
Commonwealth was entitled to a greater degree of protection than the States. Dixon J's
reasoning proceeded in the following steps: The Australian Constitution created a
federal system, and 'a federal system is necessarily a dual system'.32 There is an initial
presumption that 'in a dual political system you do not expect to find either
government legislating for the other.'33 The Constitution confers express grants of
specific powers and legislative supremacy on the Commonwealth, which displaces this
presumption – therefore, the Commonwealth has power to legislate in relation to the
States.34 However, Dixon J argued that the legislative power of the States has no such
distinguishing characteristics – it consists only of the residue left after full effect is
given to the powers granted to the Commonwealth, and a State law will be
subordinate to a Commonwealth law in the case of inconsistency. Therefore the initial
presumption, that one government does not legislate for the other, applies to limit
State legislative power.35
It is particularly significant that Dixon J's reasoning in Uther made no reference to
implications in favour of the Commonwealth. This was despite the fact that, in
Melbourne Corporation, his Honour referred to 'the implication protecting the
Commonwealth from the operation of State laws',36 and that the statement that a
federal system is 'necessarily' a dual system looks very much like an implication.
Rather Dixon J's suggestion appeared to be that the States simply lack power to
legislate in relation to the rights or activities of the Commonwealth.37 His Honour put
forward a number of reasons for this lack of power on the part of the States, which will
be discussed below.
Sir Owen Dixon's views were confirmed in Commonwealth v Cigamatic Pty Ltd (In
Liquidation),38 a case arising on very similar facts to those in Uther, where the now
Chief Justice succeeded in overruling the earlier decision.39 'It is not a question,' stated
Dixon CJ in Cigamatic, 'of making some implication in favour of the Commonwealth
restraining some acknowledged legislative power of the state.'40 Indeed, his Honour
indicated that to hold that the States did possess such power would be to 'import' and
'imply' a new proposition into the Constitution.41
There was a great deal of uncertainty about the scope of the immunity established
in Cigamatic. In particular, it was unclear whether that decision had to be seen as
overruling Pirrie v McFarlane. On a strict reading, the only proposition Cigamatic stood
for was that the States were prevented from interfering with Commonwealth
prerogative rights. Dixon CJ's comments, though, in particular his suggestion that the
_____________________________________________________________________________________
31
Ibid 528.
32
Ibid 529.
33
Ibid.
34
Ibid.
35
Ibid 529–530.
36
Melbourne Corporation (1947) 74 CLR 31, 83.
37
Uther (1947) 74 CLR 508, 529–531.
38
(1962) 108 CLR 372 ('Cigamatic').
39
Dixon CJ's view received the support of Kitto, Menzies, Windeyer and Owen JJ. McTiernan
and Taylor JJ would have upheld Uther.
40
Cigamatic (1962) 108 CLR 372, 377.
41
Ibid 377–378.
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States had no power to 'control legal rights and duties as between the Commonwealth
and its people', seemed to suggest a broader immunity.42 Obiter dicta in Commonwealth
v Bogle43 (decided after Uther but before Cigamatic) seemed to provide additional
support for the broader interpretation of Cigamatic, by suggesting that the immunity
would apply in a situation where no Commonwealth prerogative was involved.44 A
majority of the Court in Bogle accepted that 'the State Parliament has no power over the
Commonwealth.'45 The only concession was that the Commonwealth might be
'affected' by State law, though exactly what this meant was not explained in Bogle or
Cigamatic and remained very unclear.46
The decision in Residential Tenancies47
Largely because of the effect of Section 64 of the Judiciary Act 1903, it was some time
before the High Court was called upon to resolve the uncertainties left in the wake of
Uther, Cigamatic and Bogle.48 When the issue finally arose in 1997, the question before
the Court was whether the Residential Tenancies Act 1987 (NSW) was valid and binding
on the Commonwealth Defence Housing Authority.49 Six of the seven judges agreed
that the New South Wales Act was binding on the Commonwealth agency.50 However,
there was a division of views on the scope of the Commonwealth's constitutional
immunity.
A majority of the court – comprising Brennan CJ, and, in a joint judgment, Dawson,
Toohey and Gaudron JJ – drew a distinction between the 'capacities' of the
Commonwealth and the exercise of those capacities, and found that the States could
regulate the latter only.51 This meant that 'the Commonwealth might be regulated by
State laws of general application in those activities which it carries on in common with
other citizens.'52 McHugh and Gummow JJ rejected this distinction in favour of a
broader immunity principle, but limited its application by finding that the immunity
would generally operate only to the benefit of persons or bodies who derived their
_____________________________________________________________________________________
42
Ibid 377.
43
(1953) 89 CLR 229 ('Bogle').
44
The case was concerned with whether an increase in accommodation charges at a
Commonwealth migrant hostel violated the Victorian Prices Regulation Act 1948.
45
Bogle (1953) 89 CLR 229, 259 (Fullagar J), with whom Dixon CJ and Kitto J agreed. Webb J
'substantially agreed' 255.
46
Ibid 260 (Fullagar J). On the 'affected by' doctrine, see Grant Donaldson, 'Commonwealth
Liability to State Law' (1985–86) 16 Western Australia Law Review 135; Evans, above n 2, 532–
547.
47
See generally, Gladman, above n 7; Mescher, above n 2; Leslie Zines, 'The Nature of the
Commonwealth' (1998) 20 Adelaide Law Review 83.
48
Section 64 of the Judiciary Act 1903 was applied in Maguire v Simpson (1977) 139 CLR 362
and Commonwealth v Evans Deakin Industries Ltd (1986) 161 CLR 254, removing the need to
consider the constitutional immunity. See also Kneebone, above n 3.
49
Residential Tenancies (1997) 190 CLR 410.
50
Brennan CJ and Dawson, Toohey, Gaudron, McHugh and Gummow JJ found the New
South Wales law valid. Kirby J dissented on the basis that the State law was inconsistent
with the Commonwealth law.
51
Residential Tenancies (1997) 190 CLR 410, 424–5 (Brennan CJ), 438–439 (Dawson, Toohey and
Gaudron JJ). See also below Part III. Gladman, above n 7, discusses the differences between
the joint judgment and that of Brennan CJ.
52
Residential Tenancies (1997) 190 CLR 410, 439 (Dawson, Toohey and Gaudron JJ).
2001
157
____________________________________________________________________________________
authority from the executive, as opposed to legislative, power of the Commonwealth.53
Kirby J rejected the Cigamatic principle altogether and argued for a reciprocal
immunity based on the Melbourne Corporation principle.54
The majority made it clear that they saw the doctrine of the immunity of
Commonwealth capacities from State law as emerging from the judgments of Sir Owen
Dixon in Uther and Cigamatic. In their joint judgment, Dawson, Toohey and Gaudron JJ
repeated the process of reasoning used by Dixon J in Uther. The starting point was a
presumption of immunity enjoyed by all governments in a federation – although,
where Sir Owen Dixon never made the precise scope of this immunity clear, their
Honours were careful to emphasise that the initial presumption was not one of general
immunity, but an immunity in respect of executive capacities.55 By adopting this
narrower view of the scope of the immunity, the majority ensured that the decisions in
Cigamatic and Pirrie v McFarlane could be reconciled. Dawson, Toohey and Gaudron JJ
then echoed Sir Owen Dixon's reasoning as to how this basic principle had a different
application in respect of the States and the Commonwealth.56
In particular, Dawson, Toohey and Gaudron JJ clearly accepted Sir Owen Dixon's
view that the Commonwealth immunity derived from a lack of power on the part of
the States rather than from an implication. Their Honours stated that:
No implication limiting an otherwise given power is needed; the character of the
Commonwealth as a body politic … by its very nature places those capacities outside the
legislative power of … a State, without specific powers in that respect.57
Their Honours considered that:
[T]he fundamental point made in Cigamatic is that … the priority of the Crown in right of
the Commonwealth in the payment of debts is not something over which the States have
legislative power.58
Why the Commonwealth Immunity is based on an implication rather than a lack of
power
The discussion above has demonstrated that the predominant interpretation of a
Commonwealth immunity from State law is one based on a lack of power on the part
of the States to regulate the Commonwealth in certain ways. This was the basis of Sir
Owen Dixon's reasoning in Uther and Cigamatic, it was the view of a majority of the
Court in Bogle, and it was accepted by Dawson, Toohey and Gaudron JJ in Residential
Tenancies to form the ratio decidendi of that decision.
Dixon J's first argument, expressed in Uther, was that there was no possible source
of State power to regulate the Commonwealth. The States could not have possessed
such a power before federation since the Commonwealth sprang into existence in 1901.
Nor did the Constitution confer such a power. Therefore, Dixon J suggested, such a
power did not exist.59 Meagher and Gummow have already demonstrated the
_____________________________________________________________________________________
53
Ibid 458–460 (McHugh J), 463–472 (Gummow J).
54
Ibid 499–509 (Kirby J).
55
Ibid 440.
56
Ibid. See above at n 34 and n 35.
57
Ibid 440.
58
Ibid 441.
59
Uther (1947) 74 CLR 508, 530.
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weakness of this argument.60 The source of State power to regulate the
Commonwealth is the plenary power, deriving initially from Imperial legislation and
confirmed by Section 107 of the Constitution, to legislate in respect of any subject
matter from time to time within that power.61 State legislative power is clearly not
confined to subjects in existence when the colonies attained responsible government. If
it were, the absurd result would follow that the States would be unable to regulate
corporations or persons that came into existence after the nineteenth century.62
Dixon J's second claim was that a law adjusting the rights of the Commonwealth
could not be for the 'peace, welfare and good government' of a State.63 Meagher and
Gummow have observed that this approach was inconsistent with the dual
characterisation principle accepted by the Court in relation to Commonwealth
powers.64 If a Commonwealth law can admit of more than one characterisation, it is
difficult to see why the same principle should not apply to a State law. It is true that a
State law regulating the Commonwealth might be outside the scope of the State's
plenary power over its territory. For instance, as Latham CJ suggested, a New South
Wales law which purported to regulate the functions of the Governor General in
summoning and dissolving the Commonwealth Parliament would not be a law for the
'peace, welfare and good government' of New South Wales.65
However, in Uther and Cigamatic, Sir Owen Dixon was concerned with a New South
Wales law regulating the winding up of companies in New South Wales. If such a law
affects the Commonwealth, it may be said to be a law about Commonwealth
prerogative rights, but it remains a law about New South Wales companies. Thus
while the terms of State legislative power might render some State legislation affecting
the Commonwealth invalid, it is difficult to accept this argument in relation to the type
of law before the court in Uther and Cigamatic.66 It should also be noted that the Court
has clearly rejected a characterisation approach as the basis for the State immunity
from Commonwealth law, as based on artificial reasoning, and that essentially the
same criticism applies in the case of Commonwealth immunity.67
_____________________________________________________________________________________
60
Meagher and Gummow, above n 2, 28; see also Doyle, above n 2, 62–63.
61
See Constitution Act 1855 (NSW). See generally Powell v Appollo Candle Co (1885) 10 App.
Cas 282; Union Steamship v King (1988) 166 CLR 1.
62
Although it could be argued that such corporations and persons come within the power of
the States because they are of the same general category as previous subjects of State law.
As Leslie Zines has noted, if the claim is that the Commonwealth is in a special category,
'we are driven back to the nature of the federal system' — The High Court and the
Constitution (4th ed, 1997) 361. This is more appropriately the subject of an implication.
63
Uther (1947) 74 CLR 508, 530–531.
64
Meagher and Gummow, above n 2, 28–29. See A-G (Vic) v Commonwealth (1962) 107 CLR
529; Murphyores Incorporated Pty Ltd v Commonwealth (1976) 136 CLR 1, 19–23 (Mason J), 11
(Stephen J); Fairfax v Federal Commissioner of Taxation (1965) 114 CLR 1; Actors and
Announcers Equity Association v Fontana Films Pty. Ltd. (1982) 150 CLR 169.
65
Uther (1947) 74 CLR 508, 521.
66
Uther (1947) 74 CLR 508, 521 (Latham CJ).
67
A characterisation approach to State immunity was advocated by Latham CJ in Melbourne
Corporation (1947) 74 CLR 31, 61–62 and by Barwick CJ in Victoria v Commonwealth (The
Payroll Tax Case) (1971) 122 CLR 353, 372–373 ('Payroll Tax Case'), but was rejected in
Commonwealth v Tasmania (1983) 158 CLR 1, 150–152 (Mason J), 215 (Brennan J); Queensland
Electricity Commission v Commonwealth (1985) 159 CLR 192, 215 (Mason J).
2001
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An additional argument, raised initially by Fullagar J in Bogle, was that the States
had no power to regulate the Commonwealth because the Commonwealth had not
assented to a State law.68 Doyle and Evans have both pointed to major flaws in this
analysis.69 Most obviously, to suggest that the Crown in right of the Commonwealth
cannot be bound by legislation passed by a State legislature, is to ignore the doctrine of
the indivisibility of the Crown, which was central to the reasoning of the Engineers
decision.70 It would follow from this doctrine that if the Crown in right of a State has
assented to a statute, then the Crown in right of the Commonwealth is also bound.71
Moreover, as Dawson, Toohey and Gaudron JJ observed in Residential Tenancies, the
significance given to the notion of Crown assent is inconsistent with the reality of
parliamentary sovereignty embodied in the Australian Constitution. The Crown is
bound by a statute not because it has assented to it, but because Parliament is
supreme.72 This principle is reinforced by the fact that the Parliament of a State has the
power to bind the Crown in right of another State and the Crown in right of the United
Kingdom.73
It is my contention, therefore, that none of the arguments used in support of the
view that the States lack power to bind the Crown in right of the Commonwealth stand
up to critical analysis. To the contrary, under Section 107 of the Constitution, the States
have retained their plenary power to make laws for their own peace, order and good
governance, and, prima facie, are capable of binding the Commonwealth. This was
recognised in Uther, in Pirrie v McFarlane and, implicitly, in Engineers. Any immunity
possessed by the Commonwealth, therefore, must be founded upon an implication
from the Constitution.
An analysis of the reasoning of Dixon J in Uther shows that the Commonwealth
immunity is better understood as an implication, albeit an unacknowledged one. The
starting point for his Honour was the idea that a federal system is a dual system, and
that in such a system you do not expect to find either government legislating for the
other. From this follows a principle of mutual immunity, modified in the case of the
Commonwealth by the grant of specific powers, but applicable to the States. Of course,
the Constitution does not say that the system it creates is one of 'dual federalism', or
that there shall be a mutual immunity beyond Section 114. What Dixon J has done is to
form a view as to what the structure of the Constitution requires, and then to imply
such restrictions on power as are necessary to maintain that structure. The only
difference between Sir Owen Dixon's approach and the process undertaken by the
early High Court in creating the doctrine of intergovernmental immunities is that
Dixon relies on a form of deduction from the Constitution rather than on American
_____________________________________________________________________________________
68
Bogle (1953) 89 CLR 229, 259. See also Payroll Tax Case (1971) 122 CLR 353, 373 379–80
(Barwick CJ).
69
Doyle, above n 2, 56–65; Evans, above n 2, 527–529.
70
(1920) 28 CLR 129, 152-153 (Knox CJ, Isaacs, Rich and Starke JJ).
71
Residential Tenancies (1997) 190 CLR 410, 505–506 (Kirby J). Although the doctrine of the
indivisibility of the Crown has been subject to criticism – see, eg, Minister for Works v Gulson
(1944) 69 CLR 338, 350 (Latham CJ). It was not even discussed in Uther or Cigamatic let
alone rejected.
72
Residential Tenancies (1997) 190 CLR 410, 446.
73
Doyle, above n 2, 60. The author refers to the cases of Public Curator of Queensland v Morris
(1951) 51 SR (NSW) 402; Commissioner for Railways v Peters (1991) 102 ALR 579, 589; A-G
(Eng) v Sorati [1969] VR 89, 99.
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precedents in moving from the fact that the Constitution creates a federal system to the
contention that governments are not entitled to regulate one another.74
Although Dawson, Toohey and Gaudron JJ accepted Sir Owen Dixon's claim that
the immunity was based on a lack of power, several of the other judges in Residential
Tenancies acknowledged that the Commonwealth immunity was based on a negative
implication.75 Kirby J clearly perceived the immunity as being based on an implication,
albeit one without legitimate foundations.76 Although McHugh J accepted most of the
reasoning in Cigamatic, he realised that the Court was in fact dealing with an
implication. McHugh J stated that 'within their respective domains, the polities that
make up a federation are regarded as sovereign. Because that is so, it is a necessary
implication of the document that creates the federation that no polity in the federation
legislate for another.'77 McHugh J, then, recognised that the Cigamatic doctrine is more
appropriately viewed as an implication – that the link between a particular view of the
federal system and the proposition that governments cannot legislate for one another
can only be one of necessary implication.78
PART II – IMPLICATIONS IN CONSTITUTIONAL INTEPRETATION
It is a matter of great significance that the current doctrine of Commonwealth
immunity is more correctly interpreted as an implied limitation on the power of the
States than as the consequence of a lack of State power, for the Court has adopted an
entirely different approach to such implied limitations than to questions of a lack of
power. Sir Owen Dixon himself had accepted, in Melbourne Corporation, that an implied
limitation on power must be 'compelling'.79 In more recent years, the Court has
devoted a great deal of attention to the subject of constitutional implications, and has
authoritatively determined that such implications are only to be drawn where
'necessary'.
The Court has never analysed the Commonwealth immunity according to these
principles. But if, as I have argued, Commonwealth immunity is an implication, then
it is necessary to evaluate whether the current doctrine of immunity, or in fact any
doctrine of immunity, can be reconciled with the Court's approach to implications.
This Part will, first, outline the Court's approach to constitutional implications, and
second, consider what is involved in this approach, in order to apply these principles
to the question of Commonwealth immunity in Parts III and IV.
_____________________________________________________________________________________
74
Geoffrey Sawer, 'Implication and the Constitution, Part I' (1948–1950) 4 Res Judicatae 15, 20.
75
Brennan CJ's judgment in Residential Tenancies is quite ambiguous on this point.
76
Residential Tenancies (1997) 190 CLR 410, 503–504.
77
Ibid 451.
78
For an interesting parallel with the recent decision of the Court in Re Wakim; Ex Parte
McNally (1999) 163 ALR 270, see Graeme Hill, 'The Demise of Cross-Vesting' (1999) 27
Federal Law Review 547, 573–575. Hill argued that the majority, in finding that the States
have no power to confer jurisdiction on federal courts, were, without specifically
acknowledging this, drawing a negative implication. Hill goes on to contend that this
implication is inconsistent with the approach to implications adopted in Lange v Australian
Broadcasting Commission (1997) 189 CLR 520 ('Lange'); see also Dennis Rose, 'The Bizarre
Destruction of Cross Vesting' in Adrienne Stone and George Williams (eds), The High Court
at the Crossroads, (2000), 191–194.
79
Melbourne Corporation (1947) 74 CLR 31, 82.
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The first point to note is that the implication of Commonwealth immunity,
identified in Part I, would share the same basic features as the implications the Court
has devoted its attention to in the past – it is an implied limitation derived from a
structural feature of the Constitution.80 The immunity has generally been seen as
deriving from the federal structure of the Constitution, although there have been
suggestions that its origins may lie in the national character of the Commonwealth.81
Although the Court has generally focused its attention on implications that limit the
power of the Commonwealth rather than that of the States, it is clear that the same
interpretative principles apply.82
The Court's approach to implications
The Court has authoritatively laid down the principles by which implications limiting
power are to be drawn. In Australian Capital Television Pty Ltd v Commonwealth,83
Mason CJ stated that 'where the implication is structural…it is no doubt correct to say
that the term sought to be implied must be logically or practically necessary for the
preservation of the integrity of that structure.'84 In this case, the Court established that
the provision for representative government in the Constitution required an
implication of a freedom of political communication. The historical precedent that the
Court relied on in the Political Broadcasts case was the implication of State immunity in
the cases of Melbourne Corporation and Queensland Electricity Commission v
Commonwealth.85 In Lange v Australian Broadcasting Commission,86 a unanimous
judgment of the Court confirmed that the approach articulated by Mason CJ was the
correct one.87
The Court in Lange also took the opportunity to clarify the precise method by which
constitutional implications were to be derived:
[T]he Constitution gives effect to the institution of "representative government" only to
the extent that the text and structure of the Constitution establish it. … under the
Constitution the relevant question is not, "What is required by representative and
responsible government?" It is, "What do the terms and structure of the Constitution
prohibit, authorise or require?"88
_____________________________________________________________________________________
80
There have also been suggestions of a 'nationhood power' as an implication which operates
to expand the scope of Commonwealth power – see Australian Communist Party v
Commonwealth (1951) 83 CLR 1, 187–188 (Dixon J); Victoria v Commonwealth and Hayden
(1975) 134 CLR 338, 397 (Mason J); Davis v Commonwealth (1988) 196 CLR 79, 110–111
(Brennan J).
81
See Australian Postal Commission v Dao [1985] 3 NSWLR 565, 597–598 (McHugh J); Leslie
Zines 'The Commonwealth' in Gregory Craven (ed), Australian Federation Towards the
Second Century, (1992), 92–94; Zines, above n 62, 362.
82
Stephens v West Australian Newspapers (1994) 182 CLR 211, 232–234 (Mason CJ, Toohey and
Gaudron JJ), 236 (Brennan J). The case for consistency of approach is even clearer where, as
here, the implication limiting the States would derive from the Commonwealth
Constitution.
83
(1992) 177 CLR 106 ('Political Broadcasts').
84
Ibid 135.
85
(1985) 159 CLR 192 ('Queensland Electricity Commission'). See especially Political Broadcasts
(1992) 177 CLR 106, 134–135.
86
(1997) 189 CLR 520.
87
Ibid 566–567.
88
Ibid.
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This clarification was a response to a perceived divergence of approach in the Court
since the initial decisions in Political Broadcasts and its companion case, Nationwide
News Pty Ltd v Wills.89
It is clear from the cases discussed above that the same method is to be applied to
all implications, whether derived from the system of federalism created by the
Constitution, or from the system of representative government.90 Moreover, as the
discussion below will show, for as long as the Court continues to accept the
interpretive principles laid out in the Engineers decision, the approach endorsed in
Lange is the only acceptable approach to constitutional implications.
A Consideration of the Court's approach
As Stephen Donaghue has observed, 'while the necessity test is frequently invoked, it
is rarely explained'. 91 Yet, in order to apply the Court's approach to implications to a
new area, it is important to give some consideration to what is involved in this
approach.
Engineers and Judicial Restraint
Despite occasional suggestions by Sir Owen Dixon that the Court should not be
'fearful' of drawing implications,92 as Jeremy Kirk has observed, the weight of Court
practice suggests a high degree of caution.93 The necessity test represents a position of
judicial restraint which is demanded both by the 'literalist' method of constitutional
interpretation and by the Court's concern for its own legitimacy.94
As Mason J acknowledged in Queensland Electricity Commission, the requirement
that implications be necessary is directly linked to the more general principles of
constitutional interpretation articulated in the Engineers decision.95 The emphasis on a
'literal' and 'legalistic' construction of the text in Engineers had, as Sir Owen Dixon
observed, led some to the belief that no implications could be drawn from the
Constitution.96 Such an approach, his Honour considered, would 'defeat the intention
of any written instrument, but of all written instruments a Constitution seems the last
_____________________________________________________________________________________
89
Nationwide News (1992) 177 CLR 1, 42–45 (Brennan J); 69–73 (Deane and Toohey JJ); Political
Broadcasts (1992) 177 CLR 106, 181 186 (Dawson J), 230–232 (McHugh J), 208–215 (Gaudron
J). See also Kirk, above n 8, 66–68; Zines, above n 62, 378–379.
90
In Commonwealth v Western Australia (1999) 196 CLR 392, 418, Gleeson CJ and Gaudron J,
while not expressly invoking the Lange test, found that particular powers possessed by the
Commonwealth left 'no room' for an implied immunity of the Commonwealth from State
laws which operated with respect to land set aside for defence purposes.
91
Stephen Donaghue, 'The Clamour of Silent Constitutional Principles' (1996) 24 Federal Law
Review 133, 159.
92
Australian National Airways Pty Ltd v Commonwealth (1945) 71 CLR 29, 85 (Dixon J); Lamshed
v Lake (1958) 99 CLR 132, 144–145 (Dixon J).
93
Kirk, above n 8, 65–66.
94
On 'literalism' and 'legalism', see generally, Michael Coper and George Williams (eds), How
Many Cheers for Engineers? (1997); Zines, above n 62, 424–433; Tony Blackshield and George
Williams, Australian Constitutional Law and Theory: Commentary and Materials (2nd ed, 1998),
236–243, 245–251; Gregory Craven, 'The Crisis of Constitutional Literalism in Australia' in
HP Lee and George Winterton (eds) Australian Constitutional Perspectives, (1992).
95
(1985) 159 CLR 192 at 212. See also per Brennan J at 230.
96
West (1937) 56 CLR 657, 681.
2001
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to which it could be applied.'97 The requirement that implications be necessarily
derived from the text and structure of the Constitution represents a reconciliation of
the literalism of Engineers with the need to draw implications.
Ultimately, the Court's approach to implications can be traced back to the
constraints imposed by its own role as the interpreter of the Constitution. If an
implication lacks a foundation in the text or structure of the Constitution, then the
Court will not be seen to be interpreting the Constitution, but rather to be substituting
its own policy preferences for that of the democratically elected Parliament.98 As
McHugh J has acknowledged, 'if this Court is to retain the confidence of the nation as
the final arbiter of what the Constitution means, no interpretation of the Constitution
by the Court can depart from…what is implied by the text and structure of the
Constitution.'99
The Issue of Subjectivity
Windeyer J suggested that the term 'making implications' was an inappropriate one
because 'the avowed task [of the Court] is simply the revealing or uncovering of
implications which are already there.'100 This statement reveals the way in which the
'necessity' test can be used as a means of disguising the element of discretion inherent
in drawing a constitutional implication. It is now well established that in the
interpretation of the text of the Constitution, there is generally an element of
subjectivity.101 In determining what necessary implications can be extracted from that
text, then, there must also be some element of discretion. The question is, how much
discretion? Jeffrey Goldsworthy and Nicholas Aroney, writing in response to the 'free
speech' decisions, have suggested that the 'necessity' test involves such a high degree
of subjectivity that we might be led to wonder whether the test is much more than a
smokescreen for judicial policymaking.102
_____________________________________________________________________________________
97
Ibid. This statement has been quoted with approval in Pay-Roll Tax Case (1971) 122 CLR
353, 401–402 (Windeyer J), 418 (Gibbs J); Political Broadcasts (1992) 177 CLR 106, 133–134
(Mason CJ); Nationwide News (1992) 177 CLR 1, 42 (Brennan J), 69 (Deane and Toohey JJ).
See also Essendon Corporation v Criterion Theatres Ltd (1947) 74 CLR 1, 22 (Dixon J).
98
Michael Coper, 'The High Court and Free Speech: Visions of Democracy or Delusions of
Grandeur' (1994) 16 Sydney Law Review 185, 191–192; Adrienne Stone, 'The Limits of
Constitutional Text and Structure: Standards of Review and the Freedom of Political
Communication' (1999) 23 Melbourne University Law Review 668, 706; Kirk, above n 8, 69–73.
99
Theophanous v Herald & Weekly Times Ltd (1994) 182 CLR 104 at 197; 143 (Brennan J)
('Theophanous'). See also Sir Owen Dixon's speech on his appointment as Chief Justice in
(1952) 85 CLR xiv.
100 The Payroll Tax Case (1971) 122 CLR 353, 402.
101 See the extra judicial comments of Sir Anthony Mason in 'The Role of a Constitutional
Court' (1986) 16 Federal Law Review 1, 5; and in 'Trends in Constitutional Law' (1995) 18
University of New South Wales Law Journal 237, 237–238; Kirk, above n 8, 67; Bryan Horrigan,
'Paradigm Shifts in Interpretation: Reframing Legal and Constitutional Reasoning' in
Charles Sampford and Kim Preston (eds) Interpreting Constitutions (1996); Craven, above
n 94.
102 Nicholas Aroney, 'A Seductive Plausibility: Freedom of Speech in the Constitution' (1995)
18 University of Queensland Law Journal 249, 264–267; Jeffrey Goldsworthy, 'Implications in
Language, Law and the Constitution' in Geoffrey Lindell (ed), Future Directions in
Australian Constitutional Law (1994); Jeffrey Goldsworthy, 'Constitutional Implications and
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Even if the criticisms of the implication of political communication are valid,103
they do not establish that the concept of necessity is devoid of meaning, and operates
only as a means of disguising policy choices. The basic problem that the critics of the
implied freedom have pointed to is that, in order to give some content to the
implication of representative government, the Court must look beyond the terms of the
Constitution.104 Adrienne Stone has illustrated the limits of the textual approach to
implications by reference to the question of the appropriate standard of review to be
applied when determining whether a law infringes the implied freedom of political
communication.105 Stone observes that the text of the Constitution simply does not
provide any guidance on this question – any consistent and principled answer must
depend on a view as to the values underlying the implied freedom, and ultimately, the
nature of representative government. The source of such ideas must lie outside the
Constitution.106
What these arguments show is that, where the Court is required to formulate a
complete doctrine based on an implication, as it was in Political Broadcasts and the
subsequent cases, the concept of 'necessity' is a very difficult one.107 There is obviously
a range of choice in determining the scope of the doctrine, and the limitations which
are to be placed on it, and it may be difficult to justify any given choice as more
'necessary' than the others. But it is important to note that, in the context of the political
communication decisions, there was little doubt that particular provisions of the
Constitution give effect to representative government, and that some limitations must
necessarily follow from these provisions.108 Even Dawson and McHugh JJ, who
disapproved of the majority reasoning,109 accepted this proposition.110
The focus of this article is on the question of whether any principle of
Commonwealth immunity can be said to be necessarily derived from the Constitution,
rather than the appropriate form of such immunity. This inquiry, therefore, avoids the
greatest difficulties associated with the concept of necessary implications. The
widespread agreement that some form of freedom of political communication does
flow from the provision for representative democracy suggests that an answer to the
question of whether any implied limit can be found in the Constitution is more likely to
be provided by an interpretation of the text of the Constitution, than is an answer to
_____________________________________________________________________________________
Freedom of Political Speech: A Reply to Stephen Donaghue' (1997) 23 Monash University
Law Review 362.
103 Contra Donaghue, above n 91.
104 See above n 102; Stone, above n 98; Leslie Zines, 'The Present State of Constitutional
Interpretation' in Stone and Williams (eds), above n 78 227–228; Kirk, above n 8.
105 Stone, above n 98; see also, by the same author, 'Incomplete Theorizing in the High Court'
(1998) 26 Federal Law Review 195; 'The Freedom of Political Communication Since Lange' in
Stone and Williams, (eds) above n 78.
106 Ibid 696–699.
107 As witnessed by the disagreement of members of the court as well as by the academic
criticism – see above n 102; Theophanous (1994) 182 CLR 104, 163 (Deane J), 188 (Dawson J),
194 (McHugh J).
108 AR Blackshield, 'Implied Freedom of Communication' in Geoffrey Lindell (ed), Future
Directions in Australian Constitutional Law (1994), 239; Zines, above n 62, 391–392; Kirk,
above n 8, 75–76.
109 Political Broadcasts (1992) 177 CLR 106, 186–187 (Dawson J), 229–233 (McHugh J);
Theophanous (1994) 182 CLR 104, 194 (McHugh J).
110 Political Broadcasts (1992) 177 CLR 106, 186–187 (Dawson J), 229–233 (McHugh J).
2001
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the question of the appropriate content of such a limitation. Thus, on Dawson J's
reasoning in Political Broadcasts, some form of limitation must be implied, since
Sections 7 and 24 of the Constitution refer to representatives being chosen, and that
choice must be a true one.111In Part IV of this article, I will suggest that the answer to
the question of whether any implication of Commonwealth immunity can be drawn
also lies in the effect of a particular provision of the Constitution, namely Section 109.
There is room for legitimate disagreement as to the effect of that section, but
nonetheless the section does provide that answer.
PART III: AN ANALYSIS OF THE CURRENT DOCTRINE AS AN
IMPLICATION
In Part I, I argued that the general view of the Court – that the doctrine of
Commonwealth immunity was based on a lack of State power – was incorrect, and that
the immunity must be seen to be based on an implication. The first question that arises,
then, is whether the form of Commonwealth immunity recognised in Residential
Tenancies, as the established precedent, could simply be reformulated as an implication
consistent with the test endorsed in Lange. I will argue that the majority position
emerging from Residential Tenancies – that the capacities of the Commonwealth are
immune from State law – is based more on the form of the impugned State law than on
its substance. Therefore, this principle cannot be seen as a necessary implication from
the federal structure of the Constitution; nor does it have any foundation in the text of
the Constitution.
A distinction based on form?
The distinction between the capacities of the Commonwealth and their exercise has
been widely criticised as both unclear and unprincipled.112 It is the latter criticism that
I will focus on, because this is directly relevant to the question of whether the doctrine
emerging from Residential Tenancies could be said to be a necessary implication from
the Constitution.
In his judgment in Residential Tenancies, McHugh J was highly critical of the
distinction drawn by the majority:
The executive capacity of the Commonwealth can only mean its legal right or power to
do or refrain from doing something. I cannot see any constitutional rationale for a
doctrine that would hold, for example, that the States cannot prevent the Commonwealth
from entering into a specific class of contract but can alter the legal rights and obligations
of the Commonwealth … once they have entered into a contract of that class.113
McHugh J's example illustrates the way in which the immunity recognised in
Residential Tenancies is concerned not with the substantive effect of a State law on the
Commonwealth, but with what is essentially a question of the form of the State law.
_____________________________________________________________________________________
111 Ibid 187.
112 Residential Tenancies (1997) 190 CLR 410, 454 (McHugh J), 472 (Gummow J), 504–505 (Kirby
J); Gladman, above n 7, 158–159; Zines, above n 47, 91–92; Bradley Selway, 'The Nature of
the Commonwealth: A Comment' (1998) 20 Adelaide Law Review 95, 99; Dennis Rose, 'The
Nature of the Commonwealth: A Comment' (1998) 20 Adelaide Law Review 101, 105;
Mescher, above n 2, 40.
113 Residential Tenancies (1997) 190 CLR 410, 454–455.
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In recent years, the Court has placed great emphasis on the examination of the
substance rather than the form of a constitutionally impugned law.114 As Gaudron J
stated in Street v Queensland Bar Association, 'it is now accepted that in the
interpretation … of the Constitution, particularly its guarantees of freedom and the
prohibitions by which those freedoms are secured, regard should be had to substance
rather than form.'115 In its interpretation of Sections 117, 90 and 92, the Court has
rejected tests which focus on the legal criterion of the operation of an impugned law
rather than the practical effect of the law.116 Yet by focusing on the technical question
of whether a law falls on a Commonwealth capacity, or on its exercise, the majority in
Residential Tenancies have proposed a test whose focus is essentially on the legal
criterion of the State law.
This question of substance and form has, largely, been addressed by the Court in
the context of interpreting express limitations on power contained in the Constitution,
rather than implied limits. I would argue, though, that an immunity based more on
form than on substance cannot be accepted under the Court's approach to drawing
constitutional implications. Since an implied limitation is derived only where it is
necessary to protect a structural feature of the Constitution, the implication must
operate to render void a law which, in substance, operates in such a way as to threaten
that structural feature. If the question was one of form, this would, in all likelihood
lead to some laws which did not actually threaten that structural feature being
declared invalid, and vice versa.
The way in which an implied limit on power based largely on form fails as a
necessary implication can be seen through a closer examination of the reasoning of
Dawson, Toohey and Gaudron JJ in Residential Tenancies. In their joint judgment, their
Honours state that the fundamental principle lying behind the capacities distinction, is
that which was recognised in Melbourne Corporation, namely the principle that 'the
Constitution is predicated upon the continued separate existence of the
Commonwealth and the States, not only in name, but as bodies politic to which the
Constitution proceeds to distribute powers of government.'117
Since this same principle also forms the basis of the state immunity recognised in
Melbourne Corporation,118 we might ask how it is that this federal principle requires that
the Commonwealth possess a wider immunity than the States. Although there is a
similarity between the two doctrines – for instance, both would operate to render
invalid a law discriminating against the other federal entity119 – the Commonwealth
immunity is broader. A clear example of a law which would fail under the Residential
Tenancies test, and be valid under the Queensland Electricity Commission test, is a law
affecting the prerogatives of the Crown.120 How can these two different formulations
_____________________________________________________________________________________
114 Mason, above n 101, 244–245; Zines, above n 62, 444–449.
115 Ibid 569. See also Cole v Whitfield (1988) 165 CLR 360, 383, 401.
116 Street v Queensland Bar Association (1989) 168 CLR 461, 569; Ngo Ngo Ha v New South Wales
(1997) 189 CLR 465, 498 (Brennan CJ, McHugh, Gummow and Kirby JJ), 514 (Dawson,
Toohey and Gaudron JJ); Cole v Whitfield (1988) 165 CLR 360, 383, 401.
117 Residential Tenancies (1997) 190 CLR 410, 440.
118 (1947) 74 CLR 31, 82 (Dixon J).
119 Queensland Electricity Commission (1985) 159 CLR 192, 217; Residential Tenancies (1997) 190
CLR 410, 443.
120 Compare Cigamatic (1962) 108 CLR 372 with Victoria v Australian Building Construction
Employees' and Builders Labourers' Federation (1982) 152 CLR 25, 93 where Mason J stated
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both be said to be necessary for the maintenance of the same feature? Dawson, Toohey
and Gaudron JJ justified the derivation of these two principles from the same source on
the basis of Sir Owen Dixon's argument about the effect of enumerated powers as
against residual powers.121 This argument does not, though, apply in the context of
determining whether an implication is necessary. The fact that the Commonwealth has
enumerated powers does not increase its need for a different and broader protection
than that of the States.
Of these two forms of immunity, that recognised by the Court in Melbourne
Corporation and Queensland Electricity Commission seems to be more appropriately
designed to maintain the continued existence of a body politic, or in other words, to be
necessary for the preservation of the federal structure provided for by the Constitution,
since it is a distinction of substance rather than of form.122 The second branch of the
Melbourne Corporation principle, in particular, clearly focuses on the substantive effect
of the law, and thus operates to ensure that only laws which actually threaten the
continued existence of the polity are struck down by the Court.123 In contrast, by
focusing on the question of whether the State law impairs a capacity of the Crown in
right of the Commonwealth, it is likely that the Commonwealth immunity will be
broader than what is necessarily required by the Melbourne Corporation principle.124 For
example, it is difficult to see how the law struck down in Cigamatic could be said to
have threatened the continued existence of the Commonwealth as an independent
entity.
A textual basis for the immunity?
Brennan CJ was the only judge in support of the majority distinction in Residential
Tenancies to suggest a possible textual basis for the Commonwealth immunity from
State law. His Honour considered that the 'capacities and functions' of the Crown in
right of the Commonwealth are the 'rights, powers, privileges and immunities' which
are described as the 'executive power of the Commonwealth' in Section 61 of the
Constitution. Brennan CJ noted that there are two possible sources of this
Commonwealth executive power – a Commonwealth statute, and the power known as
the royal prerogative. While the executive power of the Commonwealth may be
_____________________________________________________________________________________
'there is no secure foundation for an implication that the Parliament's legislative powers
cannot affect the prerogative in right of the States, and the weight of judicial opinion… is
against it.'
121 Residential Tenancies (1997) 190 CLR 410, 440–441.
122 Although it has been argued that the recent application of this test in Re Australian
Education Union; Ex Parte Victoria (1995) 184 CLR 188 goes beyond what is necessarily
required by the structure of federalism. See Donaghue, above n 91, 162; see also Amelia
Simpson, 'The Australian Education Union Case: A Quiet Revolution?' (1998) 7 Griffith Law
Review 30.
123 As Michael Coper has observed, the discrimination limb of the principle is less clearly
connected to the principle expressed in Melbourne Corporation. Michael Coper, Encounters
With the Australian Constitution (1st ed, 1987) 191. In some cases, though, the concept of
'discrimination' has been applied in such a way that the substantive question of the effect of
the law on the Commonwealth has been addressed – see Zines, above n 62, 326–328.
124 It may also be possible that the principle is too narrow – in the sense that it failed to cover a
State law that did threaten the independence of the Commonwealth, although it is difficult
to imagine such a law which was not also discriminatory.
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modified by Commonwealth laws, 'it is beyond the legislative reach of the States.'125
His Honour went on to suggest that a State law which purports on its face to impose a
burden on the Crown in right of the Commonwealth fails for one of two reasons. If the
burden fell on the enjoyment of a Commonwealth prerogative power, the State law
'would be offensive to Section 61 of the Constitution'; if on the enjoyment of a statutory
power, it would be inconsistent with the Commonwealth law conferring that power
and hence invalid under Section 109.126
Brennan CJ did not elaborate on why it was that a State law burdening the
enjoyment of the Commonwealth prerogative would be offensive to Section 61. In its
terms, Section 61 does nothing more than confer the executive power of the
Commonwealth on designated persons. The provision does not define the scope of that
executive power, nor does it say anything about whether this executive power is to be
subject to control by the States – as George Winterton has observed, Section 61 is in
general 'remarkably ambiguous'.127 Of course, the States could not exercise the
executive power of the Commonwealth, because Section 61 expressly confers that
power on the Governor-General. But this does not explain why the States cannot
legislate to regulate and even to modify the Executive power of the Commonwealth,
provided that such a law is for the 'peace, order and good government' of the State.
What Brennan CJ might have been suggesting is that an ability of the States to
regulate the capacities of the Commonwealth Executive would amount to an ability to
detract from what Section 61 of the Constitution confers. However, this analysis simply
assumes, without any kind of justification, that the Constitution confers a power which
cannot be detracted from by State laws. The reasoning is circular – Section 61 cannot
simply be read to endorse a particular view of intergovernmental relations. Although it
might be argued that such an inability to detract from the grant of Executive power is a
necessary implication from the Constitution, this is not what Brennan CJ seems to be
suggesting, and such an argument would in any case encounter the criticisms directed
at this distinction above.
It is much easier to see how Section 109 would operate to render a State law
burdening the Commonwealth Executive invalid. However, Brennan CJ's suggestion
that such a State law would necessarily be inconsistent with the Commonwealth law
conferring the executive power is difficult to accept. The Commonwealth and State
laws in question would need to be analysed in order to determine whether there was
some inconsistency between them. It is possible that a Commonwealth law might
actually provide that it was not intended to limit the operation of a State law.128 So,
although Section 109 may often invalidate a State law burdening the capacities of the
Commonwealth Executive, it does not provide a textual basis for an immunity in all
cases involving such a State law.
_____________________________________________________________________________________
126 Ibid 426.
127 George Winterton, Parliament, The Executive and the Governor General (1983) 27.
128 R v Credit Tribunal; Ex Parte General Motors Acceptance Corp Australia (1977) 137 CLR 545.
The limits of the Commonwealth's ability to prevent a State law being inconsistent with a
Commonwealth law were outlined in University of Wollongong v Metwally (1984) 158 CLR
447.
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PART IV: A RECONSIDERATION OF COMMONWEALTH IMMUNITY
Having suggested that the Cigamatic principle, as interpreted in Residential Tenancies,
should no longer be accepted by the Court as the basis for Commonwealth immunity,
in this section I will consider what principle the Court should adopt. A number of
approaches have been suggested over the years, most of them involving a particular
interpretation of the Cigamatic principle.129 By contrast, Kirby J in Residential Tenancies
argued for a reciprocal application of the Melbourne Corporation principle to the
Commonwealth.130
I do not propose to consider these forms of immunity individually, but rather, in
the remainder of this article, to focus on an issue that is fundamental to the question of
whether there should be any form of implied Commonwealth immunity at all, that is
the effect of Section 109 of the Constitution. I will argue that the operation of Section
109 renders an implication of Commonwealth immunity unnecessary. As Kirby J
suggested in Residential Tenancies, 'the provision in the Constitution of a power to make
laws which will override any provision of an inconsistent State law removes the
necessity to imply an immunity where none is expressed.'131 A number of academic
commentators have taken a similar view.132
Before the decision in Cigamatic, there was a considerable amount of support for the
idea that Section 109 removed the need for a doctrine of Commonwealth immunity. In
rejecting a reciprocal application of the Melbourne Corporation principle to the
Commonwealth in Uther, Latham CJ argued that as Section 109 places a means of
protection in the hands of the Commonwealth, there is no need to invoke any principle
of non interference with governmental functions.133 The Commonwealth, which is
surely capable of judging its own best interests, can legislate so as to override any State
law which might involve such interference.134 It is clear that in the period between the
decision in Engineers and that in Cigamatic, the Court interpreted Engineers as requiring
that the Commonwealth was bound by a State law unless there was an inconsistency
between that law and a valid Commonwealth law. Thus, in Pirrie v McFarlane, the
majority held that the fact that the State law in question operated on the
Commonwealth defence forces was irrelevant unless there was an inconsistent Federal
law, and a similar decision was reached by the majority in West when considering a
State income tax law.135
The following sections will address a number of issues – first, whether either
constitutional or practical constraints limit the ability of the Commonwealth to protect
_____________________________________________________________________________________
129 See, eg, Evans, above n 2, 547–557; Dixon, above n 2, 18–30; Howard, above n 2, 58.
130 Residential Tenancies (1997) 190 CLR 410, 507–508. See also Doyle, above n 2, 69–70; Colin
McNairn, Governmental and Intergovernmental Immunity in Australia and Canada (2nd ed,
1978) 38; Mescher, above n 2, 41.
132 Zines, above n 47, 95; Zines, above n 62, 364; Gladman, above n 7, 160, 163; Sawer, above
n 1, 203–204; Geoffrey Sawer, 'Implication and the Constitution: Pt II' (1948–1950) 4 Res
Judicatae 85, 90; Sackville, above n 2, 45, 64; Coper, above n 123, 192–193.
133 Uther (1947) 74 CLR 508, 520–521.
134 Ibid.
135 Pirrie v McFarlane (1925) 36 CLR 170, 180–184 (Knox CJ), 212–214 (Higgins J), 225–229
(Starke J); West (1937) 56 CLR 657, 664–669 (Latham CJ), 676–677 (Starke J), 711–714
(McTiernan J). Cf West (1937) 56 CLR 657, 681 (Dixon J), 684 (Evatt J).
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itself with the help of Section 109; and second, whether a constraint such as Section 109
is relevant in determining whether an implied immunity is 'necessary'. In determining
this second issue, and in reaching a view as to whether Section 109 does operate to
render an implied immunity unnecessary, I will draw on a related debate in the United
States. I will argue that Section 109 does operate to render an implied limitation
unnecessary.
The Scope of Section 109
Constitutional Limitations
There are few constitutional limits on the Commonwealth's ability to use Section 109 to
confer immunity on the Executive. Since Section 109 will only apply to a valid
Commonwealth law, the main question is whether the Commonwealth possesses
sufficient legislative power to enable it to confer immunity on the Crown in right of the
Commonwealth. If the Commonwealth legislature is seeking to protect the
Commonwealth Executive or an agent of that executive from interference by State law
it is difficult to see how the law could not be 'with respect to' a head of power. As
Gibbs J noted in Victoria v Commonwealth and Hayden, 'the Executive cannot act in
respect of a matter which falls entirely outside the legislative competence of the
Commonwealth.'136 For this reason, it is clear that the Commonwealth possesses the
power to legislate so as to control the Executive, or to alter its capacities.137 This same
power would enable the Commonwealth legislature to confer immunity on the
Executive.
The way in which the Commonwealth possesses the legislative power to protect
itself was illustrated by Latham CJ in Uther. His Honour noted that the
Commonwealth would have had power under Section 51(ii) of the Constitution, the
taxation power, to provide that Commonwealth taxes were to take priority over State
taxes. The provision of the New South Wales legislation conferring priority for the
State in the payment of debts would then be invalid to the extent of the
inconsistency.138 We might also note that the Commonwealth would have had power
under Section 51(xxxix), the incidental power, to enact a law stating that the
Commonwealth's prerogative right to priority in debt was to prevail over all other
rights, and this would also have had the same effect as the response suggested by
Latham CJ.
The significance of Section 109 as a means for the Commonwealth to protect itself
against State law is enhanced by the broad interpretation given to the section. In
particular, it is now clearly established that, consistently with the principle of dual
_____________________________________________________________________________________
136 Victoria v Commonwealth and Hayden (1975) 134 CLR 338, 379; see also 396 (Mason J), 406
(Jacobs J); Residential Tenancies (1997) 190 CLR 410, 441; Brown v West (1990) 169 CLR 195,
202.
137 Under the incidental power in Section 51(xxxix) if not one of the other heads of power. See
Zines, above n 62, 262–273; JE Richardson, 'The Executive Power of the Commonwealth', in
Leslie Zines (ed), Commentaries on the Australian Constitution (1977) 55–56, 64–68.
138 Uther (1947) 74 CLR 508, 516.
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characterisation,139 a Commonwealth law can directly and expressly exclude the
operation of a State law and remain within power.140
Practical Limitations
It has been suggested that the Commonwealth's ability to pass overriding laws to
confer immunity on the executive may in some cases be limited by practical
circumstances.141 McHugh J has argued that the difficulties faced by the
Commonwealth Parliament if the Cigamatic doctrine was overturned would be
'enormous.'142 Parliament may not be able to anticipate which of its activities will need
protection, and will have to choose between continual monitoring of State legislation
or a possibly harmful blanket exclusion of State laws.143 If Parliament does wish to
confer immunity on the executive from a State law, it may not be able to respond
sufficiently promptly, so that damage may be done before the overriding legislation is
passed. In particular, there is the possibility that the Senate may block the
legislation.144
I would argue that these claims of practical difficulty are exaggerated. These claims
have greater force in the context in which they were initially developed – in the United
States, where the practical problem posed to Congress in dealing with fifty states,
many with highly diversified law, is more obvious than that posed in Australia.145
Section 64 of the Judiciary Act 1903 (Cth) has operated for nearly a century to remove
the large part of the immunity conferred on the Executive by the Court without such
dire consequences. This provision could continue to operate if the implied immunity
was removed, so that the general position would remain that the Commonwealth was
bound by State law. While it might be difficult, it would certainly not be impossible for
the Commonwealth Parliament then to consider which of its activities it did want to be
immune from the operation of State law. In future, the issue might become a relatively
simple matter of parliamentary drafting. It has been suggested that one of the negative
consequences of the Cigamatic doctrine was that it removed the incentive for the
Commonwealth to state clearly its position of liability to State law;146 if such an
incentive were restored it might reasonably be expected that the Commonwealth
would respond according to its best interests.
It may be true that the Senate could pose a real obstacle to the passage of legislation
intended to override a State law or to provide the Commonwealth Executive with
immunity. The suggestion that this gives rise to a need for an implied immunity,
though, is based on an incorrect view of what 'the Commonwealth' is for the purposes
_____________________________________________________________________________________
139 Sawer, above n 1, 142; see also above n 64.
140 Wenn v Attorney-General (Vic) (1948) 77 CLR 84, 109–111 (Latham CJ), 120 (Dixon J); Botany
Municipal Council v Federal Airports Corporation (1992) 175 CLR 453, 463–464; Western
Australia v Commonwealth (1995) 183 CLR 373, 464–467 (Mason CJ, Brennan, Deane, Toohey,
Gaudron and McHugh JJ). Contra West (1937) 56 CLR 657, 684 (Evatt J); Airlines of New
South Wales Pty. Ltd. v NSW (No 2) ('Second Airlines Case') (1965) 113 CLR 54, 119 (Kitto J).
This reasoning has not been more broadly adopted.
141 See generally Dixon, above n 2, 14.
142 Australian Postal Commission v Dao [1985] 3 NSWLR 565, 598.
143 Ibid.
144 Residential Tenancies (1997) 190 CLR 410 (Gummow J during argument).
145 Sawer, above n 2, 588–589.
146 Sackville, above n 2, 63; Cigamatic (1962) 108 CLR 372, 388 (Taylor J, dissenting).
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of such an immunity. An implication would be derived from the system of
federalism,147 and accordingly would be concerned with the protection of the polity of
the Commonwealth, rather than with the Commonwealth Executive in particular. As
Mason J observed in Queensland Electricity Commission, in relation to the implication of
State immunity from Commonwealth law, the immunity protects legislatures as well
as executive governments.148 The Commonwealth, in the appropriate sense, as a polity
in the federal scheme, can protect itself by using Section 109, and the internal workings
of the Commonwealth – such as a refusal by the Senate to pass an overriding law – is
not a relevant consideration.
Are Constraints Like Section 109 Relevant?
Ultimately, the question of whether Section 109 provides the Commonwealth with
sufficient protection to remove the need for an implied immunity cannot be answered
without reference to a more fundamental question: is a factor such as the
Commonwealth's ability to protect itself relevant in determining whether an
implication of immunity is necessary? The reason that such a consideration might be
seen to be irrelevant is that it is at least partly a political rather than a constitutional
constraint. Whereas a provision like Section 114, by its presence in the Constitution,
confers a particular form of immunity on the Commonwealth, without the Parliament
needing to act at all, Section 109 can only be enforced by the Court where there is an
overriding Commonwealth law. It might be thought that this form of protection,
which I shall term a 'partly political' one, does not remove the need for an implied
judicial limitation, it merely operates as a possible additional source of protection.
The question of whether such partly political constraints are relevant in
determining if there is a need for an implied limitation has not been directly
considered by the Court. Mason CJ did indicate in Political Broadcasts that an
implication 'must be logically or practically necessary for the preservation of the
integrity of that structure'.149 His Honour's reference to practical necessity might
suggest that a partly political constraint would be relevant, since at a practical level the
protection provided by such a constraint may be just as effective as that provided by a
provision such as Section 114. However, it is difficult to tell whether Mason CJ
intended to suggest that an implication must be practically necessary; or that it can be
either practically or logically necessary. No equivalent question was addressed by the
Court in its consideration of the freedom of political communication.150
The question of the relevance of partly political constraints has, however, been
closely examined in the United States, by the Supreme Court and by a range of
academic commentators. An examination of the debate over this issue in the United
States is helpful in considering both whether partly political constraints are relevant,
_____________________________________________________________________________________
147 See above at n 81. If the immunity was said to be derived from the national status of the
Commonwealth, the same principle would apply.
148 Queensland Electricity Commission (1985) 159 CLR 192, 217. See also Koowarta v Bjelke Peterson
(1982) 153 CLR 168, 216 (Stephen J).
149 Political Broadcasts (1992) 177 CLR 106, 135.
150 Perhaps because the only argument of this nature could have been that the system of
representative government operated as a check on Parliament limiting freedom of political
communication, and the whole point of the Court's reasoning was that representative
government could not function properly without such a freedom.
2001
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and in deciding whether the effect of such protection is to remove the need for an
implied immunity.
The Decision in Garcia v San Antonio Metropolitan Transit Authority151
In this 1985 decision, the Supreme Court greatly narrowed the scope of the previously
established implied immunity of the States from the exercise of the Federal power over
interstate commerce.152 A majority of the Court rejected the line of authority which
had protected 'traditional government functions' from federal interference as 'unsound
in principle and unworkable in practice'.153 The majority then proceeded with the
more radical argument that any form of substantive immunity was unnecessary
because state interests 'are more properly protected by procedural safeguards inherent
in the structure of the federal system than by judicially created limitations on federal
power.'154 These procedural safeguards, the Court explained, are provided by 'state
participation in federal government action' – namely, the representation of States in the
Senate – and more generally, by the fact that the President and the members of the
House of Representatives are themselves residents of a particular State.155
The Relevance of Partly Political Constraints
The Supreme Court in Garcia clearly accepted that what I have described as a partly
political constraint was relevant in determining the need for an implied immunity. The
ability of the States to protect themselves against federal laws that threatened their
vital interests was based on a constitutional feature: the representation of the States in
the Senate.156 But this protection depended on political factors as well if it was to be
effective – for instance, the ability of the States to unite against a federal incursion on
vital State functions.
The decision in Garcia was, though, a controversial one and some of the criticisms
amounted to a rejection of the Supreme Court's claim that these kinds of constraints
were relevant in determining whether there was a need for judicial review. One critic
argued that the decision in Garcia amounted to:
the piecemeal repeal of judicial review. It also involves a double counting of what are in
fact merely pre-judicial and post-judicial "safeguards" of the American constitutional
plan, safeguards…merely additional to, and not in substitution of, substantive judicial
review.157
A similar claim could be made in the Australian context if the Court was to find
that Section 109 removes the need for an implication of Commonwealth immunity. It
might be argued that the text and structure of the Constitution require that the
Commonwealth possess at least some form of immunity, and the judiciary cannot
_____________________________________________________________________________________
151 469 US 528 (1985) ('Garcia').
152 See generally Martha Field, 'Comment: Garcia v San Antonio Metropolitan Transit Authority:
The Demise of a Misguided Doctrine' (1985) 99 Harvard Law Review 84.
153 Garcia 469 US 528, 546 (1985). This case overruled National League of Cities v Usery 426 US
833 (1976).
154 Ibid 552.
155 Ibid 556.
156 See Constitution of the United States, Article I, s 2, and s 3.
157 William Van Alstyne, 'Comment: The Second Death of Federalism' (1985) 83 Michigan Law
Review 1709, 1724.
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abdicate its role of interpreting the Constitution because the Commonwealth can
possibly protect itself.158
Such a claim would, however, be based on a mistaken understanding of the role of
judicial review under the Australian Constitution. As Stephen Gageler has argued,
there is actually a stronger case for the High Court to take non-judicial constraints into
account in interpreting the Constitution than there is for the United States Supreme
Court.159 As the Court in Engineers recognised, the Australian Constitution in many
respects relies on constraints arising from the operation of the system of representative
and responsible government rather than on judicial protection.160 For instance, the
Court argued that one of the consequences of the presence of representative and
responsible government in the Constitution is that the powers granted to the
Commonwealth are not to be read down or limited for fear of possible abuse.161
It is, therefore, consistent with the approach of the Court in Engineers to take a
consideration like Section 109 into account when determining whether an implied
protection is necessary. It may be thought that, in Melbourne Corporation, and the
subsequent cases concerning the immunity of the States from Commonwealth laws,
the Court rejected the specific suggestion in Engineers that Commonwealth power
should not be subject to implied limitations.162 However, the decision should not be
read as rejecting the broader emphasis on the importance of non judicial constraints in
the Engineers decision. There was certainly no such suggestion in Melbourne
Corporation, and in the more recent cases concerning implications, the Court has gone
to great pains to emphasise its continued adherence to the general approach to
constitutional interpretation laid down in Engineers.163
A recognition of partly political constraints as relevant to the question of 'necessity'
would also be consistent with the underlying rationale of the Court's approach to
constitutional implications. In Part II of this article, I suggested that the necessity test
reflects a cautious and restrained approach to deriving implications from the
Constitution that is demanded both by the accepted 'literalism' of the Court, and, more
broadly, by the need to maintain the Court's legitimacy as the interpreter of the
Constitution. These factors suggest that the concept of a necessary implication should
be a narrow one, and should include all factors that can reasonably be considered to be
relevant.
This is not to suggest that an entirely political constraint should be considered to
preclude the need for an implication of immunity. Consider, for instance, if the
Commonwealth was said to derive protection from its ability to lobby State
_____________________________________________________________________________________
158 See generally David Meale, 'The History of the Federal Idea in Australian Constitutional
Jurisprudence: A Reappraisal' (1992) 8 Australian Journal of Law and Society 25.
159 Stephen Gageler, 'Foundations of Australian Federalism and the Role of Judicial Review'
(1987) 17 Federal Law Review 162. See also Sackville, above n 2.
160 Engineers (1920) 28 CLR 129, 146–147. As to the importance of representative and
responsible government in the Constitution, see Lange (1997) 189 CLR 520, 557–559;
Commonwealth v Kreglinger & Fernau Ltd (1926) 37 CLR 393, 411, 413 (Isaacs J);
Commonwealth v Colonial Combing and Weaving Co Ltd ('The Wooltops Case') (1922) 31 CLR
421; Gageler, above n 160, 181–190; Sawer, above n 2, 585.
161 Engineers (1920) 28 CLR 129, 151–152; see also South Australia v Commonwealth ('First
Uniform Tax Case') (1942) 65 CLR 373, 429 (Latham CJ).
162 Sawer, above n 74, 21–22.
163 See text above at n 95.
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parliaments not to pass laws which interfered with the Commonwealth in an
undesirable way. This would be a purely political constraint, with no foundation in the
Constitution, and one which the Court might find it difficult to accept as relevant to
the question of constitutional interpretation.164 The protection provided by Section 109,
though, is firmly grounded in the text of the Constitution, and is clearly apparent on a
consideration of the possible effects of the section. Indeed, Geoffrey Sawer has
suggested that the basic assumption of the framers of the Constitution was that 'the
Senate [would] protect the States, and the Commonwealth [would] protect itself.'165
Why an implication of Commonwealth immunity is unnecessary
I would argue that the presence of Section 109 in the Constitution removes any need
for an implication of Commonwealth immunity. Although the protection provided to
the Commonwealth by Section 109 is contingent on the Commonwealth passing a law
to override any objectionable State law, and is therefore different to a protection such
as that provided by Section 114, it should be understood as relevant to the question of
whether an implied immunity is necessary. For the Court to acknowledge such a form
of protection would be consistent with the emphasis in the Engineers decision on the
importance of non judicial constraints within the Constitution, and with the element of
caution inherent in the requirement that implications be 'necessary'.
There are few constitutional limitations on the use of Section 109 by the
Commonwealth to provide the Executive with immunity from the operation of State
law, and I have argued that the practical difficulties that have been suggested are not
significant. In particular, the suggestion that there would be difficulty in passing
Commonwealth legislation seeking to confer immunity through the Senate is based on
an incorrect view of what 'the Commonwealth' is for the purposes of an implied
immunity. Certainly, the means of protection possessed by the Commonwealth are a
great deal stronger than those possessed by the States under the United States
Constitution and recognised in Garcia. The Commonwealth has the means of
protection entirely in its own hands, whereas the protection of the States depends on
their exercising their influence on the Federal Government.166 Given the ample
capacity of the Commonwealth to protect itself from any State laws that might be
thought to threaten the vital interests or continued functioning of the Commonwealth
Executive, it cannot be said that an implied immunity is necessary.
CONCLUSION
In this article, I have argued that a principle of Commonwealth immunity must be
based on an implication rather than a lack of State power. The Court has
authoritatively determined that implications can only be drawn as necessary with
_____________________________________________________________________________________
164 It would be difficult for the Court even to evaluate the factual evidence as to such a form of
protection. See generally Andrew Bell, 'Section 92, Factual Discrimination and the High
Court' (1991) 20 Federal Law Review 240. It is notable that in the Garcia decision, there was
extensive discussion of evidence concerning the ability of the States to protect themselves.
165 Sawer, above n 132, 90.
166 Much of the criticism of the Garcia decision has been based on the argument that the
methods of protection for the State relied on by the majority in Garcia are in fact
inadequate. See, eg, John Yoo, 'The Judicial Safeguards of Federalism' (1997) 70 Southern
California Law Review 1311.
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regard to the text and structure of the Constitution. I have argued that the current
doctrine of Commonwealth immunity, as established in Residential Tenancies, cannot be
supported on this basis. Furthermore, since the effect of Section 109 is that the
Commonwealth can protect itself against objectionable State laws, it cannot be said
that any principle of Commonwealth immunity is necessarily implied by the
Constitution.
A number of benefits would follow from the absence of a judicially implied
Commonwealth immunity. A position where Commonwealth immunity depended on
express provision by the Parliament would have a distinct advantage in terms of
certainty and clarity, as compared to an implied immunity. The history of previous
attempts to define the scope of such an immunity would suggest that such an
immunity is likely to be of uncertain application.167 In addition, the Court would not
be required to undertake the sort of difficult task which it faces in regard to the implied
freedom of political communication – forming a view as to the sort of federalism
established by the Constitution in order to give content to the implication.
This argument has largely focused on the approach that the Court should adopt to
the issue of Commonwealth immunity, consistent with its own interpretative
principles. In concluding, though, I make some observations on the more speculative
question of whether the Court would in fact accept this approach. The most obvious
obstacle is that of precedent.168 Adrienne Stone has suggested that while, in the wake
of Lange, the Court may generally require that constitutional implications be firmly
grounded in the Constitution, there may be an exception for well established
precedents.169 The precedential power of the Cigamatic doctrine is, doubtless, increased
by the fact that its main author was Sir Owen Dixon, a widely revered judge.170 The
approach of the majority in Residential Tenancies suggests that the Court would prefer
to attempt to follow established precedents than to reconsider the question of
Commonwealth immunity from principle.
This is slightly ironic, given that the Cigamatic doctrine is itself founded on a
rejection of an earlier precedent. The decisions that preceded Cigamatic in fact support
the position advocated in this article, that there should be no implied protection for the
Commonwealth from State law.171 Sir Owen Dixon justified the reversal of the decision
in Uther on the grounds that it was based on a 'fundamental error in a constitutional
principle'.172 I would suggest that it is the Court's current approach to Commonwealth
immunity from State law that is based on a fundamental error, and for this reason it
should be overturned.
_____________________________________________________________________________________
167 See above n 112.
168 Cole v Whitfield (1990) 165 CLR 360 is the only case in which the Court has engaged in a
comparable overhaul of an entire doctrine, although the elimination of the exceptions to
the general interpretation of Section 90 in Ngo Ngo Ha v New South Wales (1997) 189 CLR
465 should also be noted.
169 Adrienne Stone, 'Lange, Levy and the Direction of the Freedom of Political Communication'
(1998) 21 University of New South Wales Law Journal 117, 133.
170 See Australian Postal Commission v Dao [1985] 3 NSWLR 565, 598 (McHugh J).
171 See text at nn 133 to 135 above.
172 Cigamatic (1962) 108 CLR 372, 377.
POLITICAL DONATIONS BY AUSTRALIAN COMPANIES
IAN RAMSAY,* GEOF STAPLEDON,** JOEL VERNON***
I.
INTRODUCTION
The subject of corporate political donations is highly topical in several countries. The
Australian Democrats have called for greater disclosure of donations made by
companies to political parties, and for the introduction of a shareholder-approval rule
where the donor is a public company. According to Democrat Senator Andrew
Murray, 'ever since the first political donation changed hands, money has been used to
influence electoral outcomes and the process of government'.1
The problems potentially associated with political donations are probably as old
as democracy itself. Where the institution of democracy is coupled with and gives its
imprimatur to relatively free market economics, the market for votes takes on
characteristics not unlike those of the markets for goods and services.2 Free commerce
and free elections give rise to the possibility of political exploitation and manipulation.
Where political power depends on commercial attractiveness, commercial interests can
be advanced by contributing funds to those political interests which promise the best
commercial returns. Consequently, allegations of wealthy citizens – corporate or
otherwise – buying political influence are not uncommon where their capacity to
donate to political parties (and the parties' correspondent capacity to accept) is
relatively unhindered.
_____________________________________________________________________________________
*
Harold Ford Professor of Commercial Law; Director, Centre for Corporate Law and
Securities Regulation, The University of Melbourne.
**
Associate Professor and Reader, Law School, The University of Melbourne; Deputy
Director, Centre for Corporate Law and Securities Regulation; Principal, Institutional
Analysis.
*** Research Associate, Centre for Corporate Law and Securities Regulation, The University of
Melbourne; Associate to the Honourable Justice Mandie, Supreme Court of Victoria.
1
Australian Democrats, Open the Books – Call for Political Donations Transparency, Press
Release, No 00/19 (20 January 2000). See also 'The Invisible World of Political Donations',
Australian Financial Review (Sydney), 20 April 2001, 1.
2
Geoff Gallop, 'From Government in Business to Business in Government' (1997) 83 Canberra
Bulletin of Public Affairs 81, 85:
[T]he development of a market for government functions creates a market for government
favours. Influence has the potential to become a commodity in ways unknown to a more
traditional balance between public and private sectors. The reason for this is simple –
government contracts have become a major part of the balance sheets of many private
[sector] corporations.
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This article examines donations to political parties made by companies.3 While
donations by individuals are also worthy of analysis, the tendency for commercial
power to vest increasingly in corporations highlights the importance of an analysis
from a corporate perspective.
In a competitive environment, companies can be expected jealously to guard their
spending. Consequently, it is not unreasonable to suspect that, when companies make
donations (political or otherwise), they do so for reasons other than mere generosity.4
As Fisch has asked: 'if corporations exist to maximise profits, and donations reduce
profits, why do corporations donate money to charity?'5 Green has similarly asked:
[W]hy do these non-human entities – business corporations – give to charity and how can
such philanthropy be reconciled with the most basic aspect of a business corporation, ie:
the object of making money for its investors?6
While both political donations and charitable donations are worthy of analysis,
political donations present interesting issues of corporate governance, which justify
distinguishing them. Whereas charitable donations might, at best, only indirectly
benefit the donor, the political donation is likely to confer a more direct benefit
because, in Australia, political parties form governments which can then, colloquially
speaking, return the favour. The Fitzgerald Inquiry into corruption in Queensland in
the 1980s noted that:
Practices which were adopted with respect to donations included a propensity to accept
large sums in cash, not infrequently from those who had benefited, or hoped to benefit
from dealings with the Government… [T]here were other occasions when persons or
organizations engaged in business with the Government or seeking business from it,
made substantial donations to its political party.7
A link between corporate donations and political leverage has also been suggested
by Gallop,8 who surmises that the underlying political economy determines the size
and nature of corporate political donations. Citing the example of the Labor
Government in Western Australia in the 1980s, and commencing with the proposition
that that Government saw its role as one of support for business, Gallop inferred that
_____________________________________________________________________________________
3
Of principal interest are public companies – especially those with a widely held
shareholder base. Most of these companies are listed on the stock exchange. The reason
why widely held public companies are the focus of attention is that agency costs are much
more likely to accompany the making of political donations by these companies compared
to closely held companies (see Section III for discussion of agency costs). Nevertheless, for
comparative purposes, this article examines data for both public and proprietary
companies.
4
Jill E Fisch, 'Questioning Philanthropy from a Corporate Governance Perspective' (1997) 41
New York Law School Law Review 1091, 1101-2.
5
Ibid 1094, citing Nancy J Knauer, 'The Paradox of Corporate Giving: Tax Expenditures, the
Nature of the Corporation, and the Social Construction of Charity' (1994) 44 DePaul Law
Review 1, 4.
6
Shelby D Green, 'Corporate Philanthropy and the Business Benefit: The Need for Clarity'
(1990) 20 Golden Gate University Law Review 239, 240.
7
Commission of Inquiry into Possible Illegal Activities and Associated Police Misconduct: Report
(1989) 86.
8
Gallop, above n 2.
2001
181
____________________________________________________________________________________
the Government had overplayed its hand in developing structures to promote
business. What became known as 'WA Inc'
took the Government into the world of business and commerce and led to the emergence
of important relationships between particular entrepreneurs and the Government. …[A]
type of system emerged in which support and money passed from the Government to
business and, at the same time, healthy donations found their way into the coffers of the
ALP. …What proved to be controversial and debatable about this system was the
interpenetration of private and public interests. As the two sectors became linked, it was
inevitable that questions would be asked about conflicts of interest and the potential for
corruption, of process if not of persons.9
In the 1990s, according to Gallop, the political landscape changed in response to
the risks posed by the 1980s style of government. It seems that during the 1990s there
was a change in perspective as government sought to distance itself as much as
possible from business by privatising government business enterprises and
contracting-out services. But similar problems emerged:
[N]ew and powerful partnerships develop between government and business. Failure of
government to renew contracts can become fatal and support from government,
including ministers, becomes crucial. Although the theory has government in charge, the
practice may very well see governments adjusting and responding to the needs of its
private contractors, some of whom may be party benefactors.10
When companies make political donations they may expect to receive a
sympathetic hearing on issues affecting them from the leaders of the political party and
would hope for favourable treatment.11 Public choice theory may provide insights into
not only such arguments but also the issue of corporate political donations more
generally. Public choice theory views government and law-making as part of a market:
On the demand side, legal rules are the outcome of political struggle among special
interest groups to redistribute wealth in their favour, while on the supply side, they
reflect the effort of politicians to maximise the political support they receive from interest
groups' constituencies. That is, laws are supplied to those interest groups (or coalitions)
that out-bid rivals for favourable legislation…On the supply side, the fee may take the
form of campaign contributions.12
However, there are limits on the extent to which political influence can be
purchased. Legislative decision-making is majoritarian and, in addition, 'there is as yet
no consensus on the appropriate model of how money maps into votes'.13
This article begins by examining some of the more recent and topical responses to
the phenomenon of corporate political donations. It then examines the motivations
which apparently underpin corporate giving. While this is largely informed by
American literature on charitable donations, some peculiarly Australian differences are
_____________________________________________________________________________________
9
Ibid 81-2, referring to Royal Commission into Commercial Activities of Government and Other
Matters: Report (1992).
10
Ibid 83.
11
Justin Fisher, 'Why Do Companies Make Donations to Political Parties?' (1994) 42 Political
Studies 690.
12
Neil Gunningham, 'Public Choice: The Economic Analysis of Public Law' (1992) 21 Federal
Law Review 117, 124.
13
David Austen-Smith, 'Interest Groups: Money, Information, and Influence' in Dennis
Mueller (ed), Perspectives on Public Choice (1997), 320.
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highlighted. Indeed, Australian law still requires that anything done with company
funds be done for the benefit of the company;14 with respect to philanthropy, this
requirement has been removed in many US states.15 The article then analyses the legal
framework within which corporations may pursue philanthropy, which comprises
corporate and electoral regulation, both under statute and at common law. This is
followed by a presentation and analysis of the results of an empirical study of
corporate donations to Australian political parties during the three years 1995/96 to
1997/98. The article concludes by outlining some options for law reform.
II.
TOPICALITY
A.
United Kingdom
In 1985, a UK working party established by the Constitutional Reform Centre and the
Hansard Society for Parliamentary Government recommended that 'companies should
consider their political donation policy seriously and seek the consent of shareholders
to political giving'.16 The working party believed that a decision to give to a political
party is a decision 'distinct in kind from other decisions of management and requires
special validation'.17 Noting that 'it would be illiberal and ineffective to prevent
company donations',18 the working party recommended a voluntary code of conduct
for companies with respect to political donations. Under the code, companies would be
required to disclose to their shareholders why a donation was in the company's best
interests and to obtain shareholder approval for political donations at the company's
annual general meeting at least once during the life of a Parliament.19 The editorial in
Business Law Review noted that the working party's recommendations were 'eminently
sensible. But they really do little more than scratch the surface of a very deep malaise.
… the time has come for more radical solutions'.20
Those more radical solutions have been over a decade in the making. In late 1997,
the UK Prime Minister extended the terms of reference of the Committee on Standards
in Public Life (Neill Committee) to encompass a study of political party funding in the
UK. The Neill Committee's report to the Prime Minister21 reflected an 'increasing
concern by both the public and shareholders that many corporate political donations
appear to reflect the directors' personal political affiliations rather [than] the interests
_____________________________________________________________________________________
14
Hutton v West Cork Railway Co (1883) 23 Ch D 654 ('Hutton'). The case is discussed in Section III
below.
15
Faith Kahn, 'Pandora's Box: Managerial Discretion and the Problem of Corporate Philanthropy'
(1997) 44 University of California of Los Angeles Law Review 579, 583-4, 602-3 and notes thereto,
604-5. See the discussion in Section III below.
16
'Report Urges Democratic Control of Company Political Donations' (1985) 6 Company
Lawyer 196.
17
Edmund Dell, Company Donations to Political Parties: A Suggested Code of Practice, cited in
(1985) 6 Company Lawyer 196.
18
Ibid; 'Political Donations' (editorial) (1985) 6(10) Business Law Review 269.
19
Dell, above n 17.
20
'Political Donations' above n 18.
21
Committee on Standards in Public Life (Lord Neill of Bladen, chair) (Neill Committee), The
Funding of Political Parties in the United Kingdom, (1998) Cm 4057-I (Neill Report).
2001
183
____________________________________________________________________________________
of the company'.22 In March 1999, the UK Department of Trade and Industry (DTI)
issued a consultative document titled Political Donations by Companies.23 In the same
vein as the Neill Report, the DTI paper observed:
In recent years there has been growing concern about directors' accountability to
shareholders in relation to political donations by companies. This concern is due in part
to the scope for conflict between a director's personal wishes or interests and his [or her]
duty to the company. Moreover, the Companies Act, by requiring all donations in excess
of £200 to be declared in the directors' report and the recipients identified, already
recognises that even small political donations may cause justifiable concern to
shareholders and cannot be treated as routine business expenditure. The very low
threshold for disclosure suggests that the key issue is not whether the sums are material
to the company's finances but whether the donation is in the company's interest.24
In the DTI paper, the UK government accepted the recommendations in the Neill
Report that companies should be required to obtain prior shareholder approval to
make any type of donation or provide any form of financial benefit to a political party
or organisation.25 The government also indicated its intention to amend the Companies
Act 1985 (UK) to require companies to disclose annually in the directors' report all
forms of financial benefit – direct or indirect – to political parties. 26 These proposals
have been enacted as ss 139 and 140 of the Political Parties, Elections and Referendums Act
2000 (UK). In addition, the UK government sought comments on the possibility of
requiring a director to disclose in the directors' report any connection with a political
party that might give rise either to a conflict of interest or to the perception of a conflict
of interest.27
The motivation for a shareholder approval requirement seems to stem from a
recognition that shareholders can often do little to rectify conflicts of interest,
especially after they have become apparent.28 The suggestion seems to be that, due to
the limited avenues of redress, the least that can be done (and at relatively low cost) is
to require companies to make prior disclosure so that shareholders at least have the
opportunity to make an informed decision when exercising their voting rights,29 and
even in evaluating their investment decision before they agree to become shareholders.
These and other reforms are evaluated more fully later in this article.
_____________________________________________________________________________________
22
Department of Trade and Industry, Political Donations by Companies: A Consultative
Document (1999) (URN 99/757; http://www.dti.gov.uk/cld/condocs.htm), 3 (Foreword by
Stephen Byers, Secretary of State for Trade and Industry).
23
Ibid.
24
Ibid para 1.2.
25
Ibid paras 2.6, 3.7, 4.18; Neill Report, above n 21, Recommendation 34.
26
Department of Trade and Industry, Political Donations by Companies: A Consultative
Document (1999) (URN 99/757; "http://www.dti.gov.uk/cld/condocs.htm "), paras 2.6, 5.9.
27
Ibid para 5.10.
28
Neill Report, above n 21, para 6.29.
29
Ibid para 6.35.
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B.
Australia
In Australia, there is no single legislative provision governing corporate political
donations.30 The Corporations Act 2001 (Cth) (Corporations Act) contains no provision
dealing expressly with donations, although s 19(a) of the old 'uniform' Companies Acts
gave companies power 'to make donations for patriotic or for charitable purposes'.31
The legal regime currently applying to corporate political donations in Australia is
discussed in detail in Section IV below. The remainder of this section outlines reform
proposals that have been made in Australia recently.
1. Current Bill
There is currently before the Commonwealth Parliament the Taxation Laws
Amendment (Political Donations) Bill 1999. This Bill was reintroduced after lapsing at
the last prorogation of the Parliament on the calling of the 1998 election. The purpose
of the Bill is to amend the Income Tax Assessment Act 1997 (Cth):
• to increase the current deductibility limit for donations from $100 per annum to
$1,500 per annum; and
• to extend deductibility to corporations.32
The Explanatory Memorandum to the Bill infers that it is desirable that companies
now have access to a deductibility regime for political donations.33
The Bill was introduced in response to a report by the Joint Standing Committee on
Electoral Matters (JSCEM) on the 1996 federal election.34 The Digest to the Bill explains
that the Liberal Party proposed a deductibility limit of $10,000, while the ALP
submitted that the limit should be $1,500. Both parties, it seems, were prepared to
endorse the following view of the JSCEM:
_____________________________________________________________________________________
30
For discussion of the history of the regulation of political campaign financing in Australia,
see Deborah Cass and Sonia Burrows, 'Commonwealth Regulation of Campaign Finance –
Public Funding, Disclosure and Expenditure Limits' (2000) 22 Sydney Law Review 477.
31
See, eg, Companies Act 1961 (Vic), s 19(a).
32
The Bill will insert a new subdivision 30-DA in the Income Tax Assessment Act 1997 (Cth);
the new s 30-243 will provide for the $1,500 deductibility limit. The current provisions
dealing with deductibility of political donations are: Income Tax Assessment Act 1997 (Cth), s
30-15; Income Tax Assessment Act 1936 (Cth), ss 78(9) and (10).
33
Taxation Laws Amendment (Political Donations) Bill 1999 – Explanatory Memorandum,
paras 1.36, 1.38, 1.44. Interestingly, in the US deductions for political donations are no
longer allowed. See Kahn, above n 15, 640-4, referring to the Revenue Reconciliation Act of
1993, which amended s 162(e) of the Internal Revenue Code to deny deductions:
With the exception of expenses attributable to lobbying local government, the Revenue
Reconciliation Act of 1993 eliminated the deduction for expenses incurred in direct
attempts to influence legislation, expenses attributable to communicating with high
federal executive office personnel (whether or not in connection with specific
legislation), trade association dues attributable to state and federal lobbying, and grass
roots lobbying expenses.
Ibid, 644.
34
JSCEM, The 1996 Federal Election: Report of the Inquiry into all Aspects of the Conduct of the 1996
Federal Election and Matters Related Thereto (1997).
2001
185
____________________________________________________________________________________
An increase in the maximum deduction would encourage small to medium donations,
thereby increasing the number of Australians involved in the democratic process and
decreasing the parties' reliance on a smaller number of large donations.35
However, the findings presented later in this article do not reveal any need to
increase the number of small and medium donations – at least as far as corporate
donations are concerned. Our empirical study shows that there are already significant
numbers of these smaller donations (particularly from corporations). Therefore, the
absence of a significant deductibility regime appears not to have been an impediment
to corporate political philanthropy. Indeed, the Digest to the Bill notes that
deductibility probably makes no difference to the decision to donate. Perhaps the
raising of the deductibility limit and its extension to corporations is intended to
encourage current donors to maintain (or even increase) their levels of giving.
2. Wider concerns
The Australian Financial Review reported in a February 1999 editorial that 'the release of
the latest political donations by the Australian Electoral Commission has once again
highlighted the major deficiencies that exist in our funding disclosure law'.36
Specifically, the concern was with political parties which relied on 'associated entities'
to make donations en masse on behalf of benefactors who wished to remain
anonymous.
The issue raised in the editorial is one of transparency, both in terms of
representative government in a democracy and in terms of shareholder dominion in
widely held companies. The underlying concern is that corporate donors wishing to
remain anonymous do so either because they wish to avoid the perception that they
are buying government influence, or because they wish to avoid alerting their
shareholders that they are giving away company property, particularly where the gift
is of doubtful benefit to the company's shareholders.
3. The Australian Democrats' proposals
In 2000 the Australian Democrats' Accountability spokesperson, Senator Andrew
Murray, outlined reform proposals:
• to require shareholder approval of 'donation policies' of public companies; and
• to require 'full donations disclosure' in a public company's annual report.37
The proposals are in line with the recent UK changes discussed above. The second
proposal is unsurprising given that a major Australian bank – a publicly listed
company – forgave a large loan (overdraft balance) to an Australian political party
after the 1996 federal election, without disclosure. The nature of the financial benefit
(forgiving a loan) meant that no disclosure was considered necessary under the rules
in the Commonwealth Electoral Act 1918 (Cth).38 However, for a financial benefit of this
magnitude to be given to a political party without any form of disclosure certainly
_____________________________________________________________________________________
35
Ibid 103.
36
'Donations Law Needs Overhaul', Australian Financial Review, (Sydney), 6-7 February 1999,
20. See also Editorial, 'Tightening Up Donations', Australian Financial Review, (Sydney), 27
April 2001, 82.
37
Australian Democrats, above n 1.
38
Disclosure was made at a later stage, after an Electoral Commission audit: see below n 120.
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appears contrary to the spirit of the Commonwealth Electoral Act. An appropriately
drafted disclosure rule would catch this kind of financial benefit.
4. Senator Brown's proposal
Australian Greens Senator for Tasmania, Bob Brown, has recently referred to corporate
political donations as 'a growing wave of corporate largesse that is eating at the fabric
of [Australia's] democracy [and] a cancer that must be cut out'.39 Senator Brown has
recommended that:
• corporate donations to political parties should be banned; and
• donations should instead be diverted into a 'Democracy Trust Fund' to be
distributed to political parties according to their relative electoral success.40
We return to options for law reform in Section VI below. The article now examines
what motivates companies to donate corporate funds to political parties.
III.
MOTIVATIONS FOR GIVING
The use of corporate funds for philanthropic purposes is, in some circumstances, an
agency cost of running a company. The concept of agency costs in the corporate
context goes back at least as far as Adam Smith.41 Agency costs arise where a party
(the shareholders of a company) appoints another party (the directors) to be its
delegate or agent in a particular transaction or series of transactions (overseeing the
management of the company's business). As Berle and Means observed in relation to
the typical widely held US company 70 years ago:
In the corporate system, the 'owner' of industrial wealth is left with a mere symbol of
ownership while the power, the responsibility and the substance which have been an
integral part of ownership in the past are being transferred to a separate group in whose
hands lies control.42
Agency costs arise where the interests of the principal and the agent (or
shareholders and directors) diverge:
As residual claimants on the firm's income stream, shareholders want their agents – the
firm's managers – to maximize wealth. Because managers cannot capture all of the gains
if they are successful, and will not suffer all of the losses should the venture flop, they
have less incentive to maximize wealth than if they themselves were the principals.
Rather, managers have an incentive to consume excess leisure, perquisites and in general
be less dedicated to the goal of wealth maximization than they would if they were not
simply agents.43
When managers use company funds other than in the direct course of the
company's business, there may be a divergence of interests between ownership and
management:
_____________________________________________________________________________________
39
Bob Brown MP, Corporate Donations are a Cancer on Australian Politics, Press Release, 14
April 2000.
40
Ibid.
41
Adam Smith, The Wealth of Nations (1937) (first published, 1776) 699-700.
42
Adolf E Berle Jr and Gardiner C Means, The Modern Corporation and Private Property
(1932[0]) 68.
43
Daniel R Fischel, 'The Corporate Governance Movement' (1982) 35 Vanderbilt Law Review
1259, 1262-3.
2001
187
____________________________________________________________________________________
[I]t is plain that where corporate managers approve [donations] as a means of furthering
their personal objectives, such contributions represent a species of agency costs, and are
inconsistent with the essential fiduciary fabric of corporate law.44
A key aim of corporate governance mechanisms is to minimise the divergences
between owners' and managers' interests, and hence minimise agency costs.45
On the other hand, as discussed below, a corporate donation may be approved by
directors/managers with a view to increasing shareholder wealth.46 In this situation
there is no agency cost problem in the traditional sense, although – depending on the
circumstances – there may be other legal issues to contend with. Therefore, whether a
donation gives rise to agency costs depends largely on its motive, a question we now
turn to examine.
A.
Altruism
US companies are more or less prohibited from making overt political contributions.47
It is thought that 'unrestrained corporate campaign spending would pose a substantial
threat to the democratic political process, and create at least the appearance of
unseemly political quid pro quos'.48 However, this has not prevented US corporations
from 'pursuing political objectives through technically philanthropic contributions, [so
as to] lawfully avoid the limitations and disincentives pertaining to traditional
corporate political advocacy'.49 The ability of US companies to support political parties
in this indirect manner is bolstered by the absence of a 'benefit-to-the-company' test for
corporate philanthropy (at least in many states).
The position in many US states 'accords substantial deference to management's
judgment. The fact that a perceived benefit is intangible, non-economic, or uncertain
will not invalidate a corporate expenditure'.50 The 'benefit-to-the-business' test (under
which a use of corporate funds is valid only if it benefits the company, at least
indirectly) seems to have been abrogated by statute in several states. An example is the
Californian Corporation Code, s 207(e), which provides authority for charitable donations
'regardless of specific corporate benefit'. Other states limit corporate philanthropy by
still adhering to the benefit-to-the-business test, while a large number of states allow
corporate contributions for wider purposes either without imposing any express
_____________________________________________________________________________________
44
Kahn, above n 15, 610 (emphasis added).
45
An interesting question, at least for American corporate governance scholars, is the extent
to which agency costs arising in this area can be minimised in a jurisdiction whose
statutory regime unreservedly confers on company controllers the power to make
donations: '[i]n affording them full decisional authority in regard to corporate
contributions, these laws have conferred extraordinary power and discretion on corporate
managers': Kahn, ibid, 603-4 (notes omitted).
46
See Section IIIE below.
47
Federal Election Campaign Act of 1971, 2 USC 431-455 (1994). See Kahn, above n 15, notes 24663 and accompanying text.
48
Kahn, ibid, 642.
49
Ibid 640-1.
50
Fisch, above n 4, 1096, referring to Levine v Smith 591 A 2d 194, 207 (Del. 1991), and the US
common law business judgment rule, which creates a presumption of validity for business
decisions made by directors where they act without self-interest, on an informed basis, in
good faith and in the honest belief that the action taken was in the best interests of the
company.
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limitations or without expressly waiving the benefit-to-the-business requirement.51
Accordingly, in regard to corporate charitable donations, US managers have
considerable discretion to choose their beneficiaries, and are permitted to be
altruistically motivated, so long as their largesse is not politically inclined.
Nevertheless, as Abzug and Webb have observed, rarely are gifts made by US
companies seen to be completely altruistic or completely in the interest of society;
rather, they are often thought to be beneficial to others, but still in the interests of the
corporation:
Although possible, it is unlikely that corporate executives are completely altruistic. In
addition to the benefit that society receives from a donation, the corporation nearly
always benefits from the added goodwill it creates, even if the donation is not highly
publicized.52
Australian corporate directors and managers are not permitted to be as altruistic as
their US counterparts. In effect, what the Americans call the benefit-to-the-business test
applies in Australia. As Bowen LJ stated in Hutton's case (an English decision):
They can only spend money which is…the company's, if they are spending it for the
purposes which are reasonably incidental to the carrying on of the business of the
company. … The law does not say that there are to be no cakes and ale, but there are to
be no cakes and ale except such as are required for the benefit of the company. … It is not
charity sitting at the board of directors, because as it seems to me charity has no business
to sit at boards of directors qua charity. There is, however, a kind of charitable dealing
which is for the interest of those who practise it, and to that extent and in that garb (I
admit not a very philanthropic garb) charity may sit at the board, but for no other
purpose.53
Hutton was decided on corporate capacity grounds; the payment in question was
alleged, and found, to have been made ultra vires (beyond the company's powers). In
Parke v Daily News Ltd54 – a later English decision which applied Hutton – Plowman J
based his judgment not only on the doctrine of ultra vires, but also on directors' duties
grounds.55 Given the abolition of the ultra vires doctrine in Australia,56 the relevant
legal doctrine is officers' duties – in particular, the general law duty of directors and
senior executives to act in good faith in the interests of the company, and the duty of
directors and other officers under s 181 of the Corporations Act to exercise their powers
and discharge their duties in good faith in the best interests of the corporation.
In summary, sheer altruism (however laudable) would not provide a sufficient
legal basis for corporate giving in Australia. The likelihood of a corporate donation
being motivated purely by altruism is, however, unlikely. Any political donation that
is intended to benefit the company, even indirectly, cannot be charitable in the strict
_____________________________________________________________________________________
51
For an overview of the legal regulation of corporate charitable donations in the US, see R
Franklin Balotti and James J Franks, 'Giving at the Office: A Reappraisal of Charitable
Contributions by Corporations' (1999) 54 Business Lawyer 965.
52
Rikki Abzug and Natalie Webb, 'Rational and Extra-Rational Motivations for Corporate
Giving: Complementing Economic Theory with Organization Science' (1997) 41 New York
Law School Law Review 1035, 1038-9.
53
Hutton (1883) 23 Ch D 654, 671, 673.
54
[1962] Ch 927.
55
See K W Wedderburn, 'Ultra Vires or Directors' Bona Fides?' (1967) 30 Modern Law Review
566.
56
See Corporations Act 2001 (Cth), ss 124, 125.
2001
189
____________________________________________________________________________________
sense. It appears likely that altruism would often only be a co-motivation to other,
more-tangible motivations. Before turning to profit-maximisation (shareholder benefit)
as a motivation for corporate giving, we address several other possible motives.
B.
Management self-promotion or self-dealing
As noted above, corporate donations (to charities or political parties) may involve
agency costs. In some cases, corporate charitable donations may be 'a form of selfaggrandising or self-promoting behaviour by management'.57 Abzug and Webb
speculate that '[m]anagers may give [company funds to charity] because they…enjoy
the prestige associated with being a big giver. … "[B]usiness contributions…are
attempts to acquire status, prestige, and goodwill for management and the firm"'.58 On
the other hand, shareholders might take the view that a little philanthropic dealing by
managers is indirectly good for the company. That is, if managers are pleased with the
prestige that philanthropy attracts, there may in turn be a positive effect on the
managers' productivity, and higher gains for shareholders.59
Turning from charitable donations to political donations, it is possible that political
donations may be explained by managerial self-dealing.60 If a manager were to
contribute company funds to a political party solely for personal satisfaction, this
would be open to question even in the more liberal donations regime existing in many
US states:
[C]orporate managers may authorize donations to politically active charities as a means
of furthering their own political and ideological preferences, irrespective of the firm's best
interests. When corporate managers approve donations on this self-serving basis, they
satisfy the letter of the [US] law, but fail to fulfill their fiduciary obligation to protect
corporate shareholders' property interests.61
Under Australian corporate law, directors and senior executives must not profit
improperly from their position as officers of the company.62 A political donation could
lead to a breach of this rule if, as a result of a donation, a director was endorsed as a
party candidate. As the DTI paper notes, where a director 'was a member of the
political party to which a donation was to be given, there could be a conflict between
the director's personal interests and [her or] his duty to the company'.63
_____________________________________________________________________________________
57
Mike Adams and Philip Hardwick, 'An Analysis of Corporate Donations: United Kingdom
Evidence' (1998) 35 Journal of Management Studies 641, 641-2, citing O Hart, 'An Economist's
View of Fiduciary Duty'(Discussion Paper No 157, LSE Financial Markets Group, 1993) 16.
58
Abzug and Webb, above n 52, 1041, citing Armen A Alchian and Reuben A Kessel,
'Competition, Monopoly and the Pursuit of Pecuniary Gain' in National Bureau of
Economic Research, Aspects of Labor Economics (Conference Proceedings, 1962), 156.
59
Ibid 1041-2, citing Charles T Clotfelter, Federal Tax Policy and Charitable Giving (1985), 184.
60
The data examined in the study described later in this article do not enable any definite
conclusions to be drawn. A more detailed study examining the most mobile directors
amongst the most politically philanthropic companies would shed more light on this point.
Directors who were constantly changing companies would be examined to see whether
they took their 'giving-pattern' with them.
61
Kahn, above n 15, 611 (notes omitted).
62
Keech v Sandford (1726) Sel Cas Ch 61; Furs Ltd v Tomkies (1936) 54 CLR 583; Corporations Act,
ss 182, 183.
63
Department of Trade and Industry, above n 22, para 2.4.
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Managerial self-dealing may explain a company's political donations even where no
director or senior executive of the company is actively involved in the political party
concerned. The donations may result simply from a personal desire among some or all
of the directors to assist a particular party. If they were to use their own money this
would be completely uncontentious. But where this desire to provide financial support
to a political party results in company funds being donated to the political party or a
club or foundation supporting the party – or in some other form of financial assistance
being given by the company to the political party – matters of corporate law and policy
become relevant.
C.
Corporate social responsibility
There is no universally accepted definition of corporate social responsibility (CSR),64
but Engel has said:
The term…is most useful if taken to denote the obligations and inclinations, if any, of
corporations organized for profit, voluntarily to pursue social ends that conflict with the
presumptive shareholder desire to maximize profit.65
CSR is probably interchangeable with terms like 'enlightened self-interest'66 and the
corporate governance perspective known generally as 'stakeholder theory'.67 The
fundamental theme of CSR is that corporate managers should recognise that their
prime duty of profit-maximisation for shareholders is to be tempered by an
acknowledgement that corporate power is held on trust for the wider community.68
This approach seems to have been accepted by some US courts.69
In terms of philanthropy, some corporate executives say that supporting
philanthropic agencies is a way for the company to 'give something back' to the
community.70 Unlike a purely altruistic perspective, however, CSR-prompted charity
recognises that the corporation does not exist in a social, ethical or moral vacuum.71 In
fact, the term 'enlightened self-interest' best captures the notion that the CSR-aware
company is far from altruistic, and indeed recognises that by being good, it can do
well. It could be argued that CSR is simply profit-maximisation with a halo:
_____________________________________________________________________________________
64
Kahn, above n 15, 629 (note 191).
65
David L Engel, 'An Approach to Corporate Social Responsibility' (1979) 32 Stanford Law
Review 1, 5-6.
66
Kahn, above n 15, 627 (note 184); Company Law Review Steering Group, Modern Company
Law for a Competitive Economy: The Strategic Framework (Consultation Document, 1999), ch
5.1.
67
See, eg, E Merrick Dodd Jr, 'For Whom Are Corporate Managers Trustees?' (1932) 45
Harvard Law Review 1145; Lord Wedderburn of Charlton, 'The Social Responsibility of
Companies' (1985) 15 Melbourne University Law Review 4.
68
Adolf A Berle Jr, The Twentieth Century Capitalist Revolution (1954) 169.
69
AP Smith Mfg Co v Barlow 98 A2d 581, 586 (1953); Theodora Holding Corp v Henderson 257
A2d 398, 404 (Del. Ch. 1969); Paramount Communications, Inc v Time Inc 571 A2d 1140 (Del.
1990).
70
Abzug and Webb, above n 52, 1039.
71
Kahn, above n 15, 629-30 (notes omitted). It has been argued that corporate charitable
donations may reflect CSR on the part of companies yet this does not equate to viewing
companies as citizens: Sally Wheeler, 'Inclusive Communities and Dialogical Stakeholders:
A Methodology for an Authentic Corporate Citizenship' (1998) 9 Australian Journal of
Corporate Law 1.
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Although researchers in economics, sociology, and other fields suggest that social
responsibility or duty motivates corporate executives to donate, economists tend to
believe that nearly all donations benefit the corporation in some way. …The benefit to the
firm is increased sales or other benefits accruing because the corporation appears to be
'socially minded'.72
Some of those other benefits include public relations, financial performance and
employee productivity.73 Abzug and Webb note that, in the US, no studies have
conclusively proven causation between higher levels of giving and better financial
performance.74 From the US perspective, this would be of little consequence.75 But the
Australian position, based on Hutton76, seems to be that if CSR-prompted charity is of
no benefit to the company, then the courts can impeach such contributions. This is
precisely the situation that arose in Parke v Daily News Ltd.77 A minority shareholder
challenged proposed ex gratia payments to employees who were facing imminent
redundancy as the company had contracted to sell its main business assets. The board
considered that it owed 'a very practical obligation to employees', but the court
disagreed: 'the defendants were prompted by motives which, however laudable, and
however enlightened from the point of view of industrial relations, were such as the
law does not recognise as a sufficient justification'.78
Whatever the relative merits and demerits of CSR, it is doubtful whether it can
justify the making of political donations. Political parties are hardly the kind of social
actors whose interests are furthered by CSR and, moreover, often represent only
narrow sectional political interests. Although CSR masquerading as 'enlightened selfinterest' could serve to validate a political donation under the strict 'benefit' test, the
more appropriate rationalisation would appear to be profit-maximisation.
D.
Political free-speech
Another possible motivation for a corporate political donation is a desire by a
company's board or management to voice the company's view in a political debate –
albeit indirectly. There would, of course, often be other (more direct) means of making
_____________________________________________________________________________________
72
Abzug and Webb, above n 52, 1039-40 (emphasis added) .
73
Dwight F Burlingame, 'Empirical Research on Corporate Social Responsibility: What Does
it Tell Us?' (1994) 4 Nonprofit Management & Leadership 473, 474, cited in Abzug and Webb,
ibid, 1039 (note 19).
74
Abzug and Webb, ibid, 1040.
75
US managers who operate in a legal environment that has not abrogated the 'benefit-to-thebusiness' test will still enjoy the protection of the business judgment rule where, in making
a donation, they acted on an informed basis, honestly, and in good faith, and the donation
was a business decision in the best interests of the company.
76
(1883) 23 Ch D 654, 671.
77
[1962] Ch 927 (affirming Hutton).
78
Ibid 963 (Plowman J). Later cases in some overseas jurisdictions have made some inroads
into the general principles of Hutton and Parke. For example, in the Canadian case Teck
Corporation Ltd v Millar (1973) 33 DLR (3d) 288, 314 Berger J said:
If today the directors of a company were to consider the interests of its employees no
one would argue that in doing so they were not acting bona fide in the interests of the
company itself. Similarly, if the directors were to consider the consequences to the
community of any policy that the company intended to pursue, and were deflected in
their commitment to that policy as a result, it could not be said that they had not
considered bona fide the interests of the shareholders.
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the company's view known; for example, by making a formal submission to a
parliamentary committee or law reform body. To the extent that a corporate political
donation represents an attempt by the company's board or management to exercise the
company's right to 'political free-speech', Kahn is strongly opposed:
[B]ecause politicized corporate charitable contributions are a form of corporate political
speech, they may impinge on shareholders' speech and associational interests. In light of
the fact that shareholders are typically not provided with information regarding the
firm's charitable contributions, the investment decision cannot represent a legitimate
proxy for shareholder consent to politicized charitable contributions. …[A] deep conflict
exists between the firm's right to promote its political interests and the shareholders'
interest in not being compelled to subsidize speech with which they are in
disagreement.79
E.
Profit-maximisation
By definition, pure charity cannot be expected to result in gains for a company
because, where 'charity' is used in the true sense of the word, the donor cannot
anticipate a net gain from his or her contribution.80
There is therefore a widely held view that corporate donations to charitable
organisations are motivated primarily by profit-maximisation.81 As Adams and
Hardwick argue, 'more and more corporations view their contributions as a form of
investment rather than classic philanthropy (ie: pure gifts)'.82
Corporate donations to political parties may also be motivated by profitmaximisation. The link between the political contribution and the benefit to the
business may well be direct and obvious; it may be designed to reduce costs or
increase revenues in a fairly direct manner. As far as reducing costs is concerned,
contributions could be designed to insulate the company from unfavourable tax or
regulatory policies, thereby reducing the company's tax and compliance costs.83 As for
increasing revenues, contributions may be designed to improve the company's chances
of winning government business contracts when the political party, which is the
beneficiary, next forms a government.
Alternatively, the link between the contribution and the benefit to the business may
be more indirect. An example of a contribution designed to maximise profits indirectly
is a contribution aimed at minimising or negating adverse publicity:
Managers also use contributions to stem governmental criticisms of corporate actions,
and to ward off attacks by social activists. …[T]hreats of regulation prompt contributions
to civic and political affairs from the utilities.84
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79
Kahn, above n 15, 637 (notes omitted).
80
Ibid, 663-4 (notes omitted).
81
Abzug and Webb, above n 52, 1045.
82
Adams and Hardwick, above n 57, 641, citing J J Siegfried, K M McElroy and D BiernotFawkes, 'The Management of Corporate Contributions' (1983) 5 Research in Corporate
Performance and Policy 87, 87.
83
Usha C V Haley, 'Corporate Contributions as Managerial Masques: Reframing Corporate
Contributions as Strategies to Influence Society' (1991) 28 Journal of Management Studies 485,
487, 489.
84
Ibid 501, citing J Cohn, The Conscience of the Corporations: Business and Urban Affairs. 19671970 (1971); F Fry and R J Hock 'Who Claims Corporate Responsibility? The Biggest and
the Worst' (1976) 18 Business and Society Review 62; F K Levy and G M Shatto, 'Social
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From the shareholders' perspective, political donations motivated primarily by
profit-maximisation are not a source of agency costs. If the company is offered
contracts or tenders when its beneficiary obtains government, or is approached more
sympathetically by regulators, then many shareholders would have little cause for
complaint. On the other hand, political donations of this nature may involve some
significant legal and policy issues in areas other than corporate law.
F.
The (lack of) evidence on motivation
Much of the preceding argument is speculative in the sense that it is almost impossible
accurately to discern why companies make donations. Suspicions can be loosely tested
by reference to the contours of the corporate landscape and tax laws, but in the absence
of a study directly on point no solid conclusions can be reached.
A 1980 study considered some motivations, but it did not differentiate between
political and non-political donations.85 Of the 101 companies responding to the survey,
96 made donations. The most important factor cited by respondents was a belief in the
active support of social programs. The fact that donations provided favourable
publicity was mostly claimed to be unimportant. Of the five companies which did not
make donations, four refrained because their basic responsibility was to shareholders,
while the fact that benefits to the company might not be readily identifiable was
claimed to be largely unimportant. Unfortunately, the findings of this study are, for
present purposes, largely indeterminate because it did not differentiate between
political and non-political donations. Also, the results of surveys in this area must be
treated with caution given the possibility of self-serving responses.
The possibility that corporate giving is motivated more by management selfinterest (or other factors) rather than profit-maximisation is supported by studies that
fail to find a conclusive link between corporate giving and profitability.86 However,
the failure to find that conclusive link is not necessarily fatal to the proposition.
There is some old UK evidence suggesting that corporate political donations make
no difference to election outcomes.87 If this remains the case – that is, if contributions
make no difference to a party's chances – then a donor company's directors are
possibly in breach of the rule in Hutton.88 If contributions do make a difference, then
the rule in Hutton is observed, but at the risk of an accusation of buying political
influence.89
_____________________________________________________________________________________
Responsibility in Large Electric Utility Firms: The Case for Philanthropy' in L E Preston
(ed), Research in Corporate Social Performance and Policy (1980).
85
A Harris, 'Corporate Donations to Institutions – A Survey of Practice and Disclosure' (1980)
32 (April-June) Professional Administrator 97.
86
Fisch, above n 4, 1097, citing James R Boatsman and Sanjay Gupta, 'Taxes and Corporate
Charity: Empirical Evidence from Micro-Level Panel Data' (1996) 49 National Tax Journal
193.
87
David Butler, The British General Election 1951 (1952), 34, cited in K D Ewing, 'Company
Political Donations and the Ultra Vires Rule' (1984) 47 Law Quarterly Review 57, 70.
88
If the party is already in government, the donation would not run as great a risk of leading
to a breach of the rule in Hutton. This is because the donation may be designed to influence
the government's approach to laws and issues affecting the company, and therefore could
be 'profit-maximising'. However, a donation of this nature raises issues over and above
corporate law.
89
Ewing, above n 87, 71.
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In relation to the US, causal empiricism suggests that political spending is
positively related to election outcomes. The restriction on overt political contributions
by US companies90 inferentially recognises this and the concomitant point that votes
can be bought.
The importance of the effect of a contribution – and the motive for making it –
cannot be underestimated. Depending on the effect or motive (and it does not seem to
matter which), directors and senior executives expose themselves (and their
companies) to varying types and degrees of liability. We now consider these legal
issues.
IV.
LEGAL REGULATION IN AUSTRALIA
A.
Corporate law
Disclosure
The Corporations Act does not contain any disclosure rules specifically aimed at
political donations. But a proposed corporate political donation may fall within a
general disclosure rule.
If a director has a material personal interest in a proposed political donation by the
company, the director must disclose to the other directors as soon as practicable the
nature and extent of the interest and the relation of the interest to the affairs of the
company.91 If it is a public company, the interested director is not allowed to be
present while the donation is being considered by the board, and is not allowed to vote
on the matter at the board meeting.92
Also, if the company is a public company or is controlled by a public company, the
related party provisions apply. Under Chapter 2E of the Corporations Act, a public
company (or an entity that the public company controls) may give a financial benefit to
a 'related party' of the public company only if:
• the public company's shareholders approve in advance – after full disclosure;
or
• the giving of the benefit falls within an exception set out in Chapter 2E.
The expression 'related party' is defined to include not only the directors of the
public company, and their spouses, parents and children, but also (among others) an
entity which acts in concert with a related party (X) on the understanding that X will
receive a financial benefit if the public company gives the entity a financial benefit.93 If
a public-company director is also an office-bearer of a political party, or has some
involvement with an organisation that supports a political party, any financial benefit
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90
See Section IIIA above.
91
Corporations Act, s 191.
92
Corporations Act, s 195(1). The director may be present and vote if directors who do not
have a material personal interest in the matter have passed a resolution that:
•
identifies the director, the nature and extent of the director's interest in the matter and
its relation to the affairs of the company; and
•
states that those directors are satisfied that the interest should not disqualify the
director from voting or being present: s 195(2).
93
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given by the company to the party or the supporting organisation would fall within
Chapter 2E if the 'acting in concert' test was satisfied. Giving a financial benefit is
defined very broadly and would catch not only straightforward donations but also, for
example, supplying services, forgiving a loan or leasing property to the political party
or supporting organisation.94
If an exception applies, there is no obligation to obtain prior shareholder approval
of the financial benefit. But in the political donations scenario the only exception that
might be applicable is the 'arm's length terms' exception. This exception applies where
a financial benefit is given on terms that would be reasonable in the circumstances if
the public company (or controlled entity) and the related party were dealing at arm's
length (or on terms that are less favourable to the related party than arm's length
terms).95
If one accepts that regulations governing corporate political donations should be
based on the two principles of transparency and accountability, the related party
provisions provide a sub-optimal disclosure and approval regime. There is no doubt
that the Chapter 2E provisions are very broadly drafted. Indeed, the provisions may
well have applied to some cases of corporate political giving over recent years,
although neither the directors nor the political party concerned (nor the Australian
Securities and Investments Commission) were aware of their applicability.
Nevertheless, in some instances a public company could provide a financial benefit to
a political party, or an organisation supporting a political party, and Chapter 2E would
not apply due to the absence of a 'related party'. And, of course, Chapter 2E applies
only to financial benefits given by public companies and entities controlled by public
companies. It does not apply to financial benefits given by a proprietary company that
is not controlled by a public company. In short, Chapter 2E is not a comprehensive
disclosure regime as far as corporate political donations are concerned.
Corporate capacity and officers' authority96
In the UK, the question of a company's capacity to make a political donation arose in
Simmonds v Heffer.97 Mervyn-Davies J considered that the legal capacity of a company
to make a donation depended on construing its memorandum and articles of
association, and determining whether or not the donation was ultra vires the company.
But because the doctrine of ultra vires has been abolished in Australia,98 the validity of
a corporate political donation cannot be challenged on grounds of lack of corporate
capacity.99
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94
95
96
For additional analysis, see Simon Fisher, 'Corporations as Donors: A Legal Survey' in M
McGregor-Lowndes, K Fletcher and S Sievers (eds), Legal Issues for Non-Profit Associations
(1996), Ch 8.
97
[1983] BCLC 298
98
Corporations Act, ss 124, 125.
99
As s 125(2) of the Corporations Act states, 'An act of [a] company is not invalid merely
because it is contrary to or beyond the objects in the company's constitution'. Although the
expression ultra vires is sometimes used in respect of acts of both individuals or
corporations who act beyond their powers, in the context of corporate law, the expression
should be used in the narrow sense of being confined to acts by a company with limited
capacity beyond its corporate power. With the abolition of the doctrine of ultra vires in
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One possible ground for challenging a political donation made by an Australian
company is lack of authority in the officer(s) who approved and/or performed the acts
constituting the donation. This is a matter for the general law of agency as it has been
applied to companies100 and the statutory assumptions101 which a donee is entitled to
make in relation to the contribution.
As a practical matter, however, it would be unlikely that a political party would try
to challenge the ability of its benefactor to make donations to it. It is therefore more
useful to analyse a political donation in terms of officers' duties,102 and any actions
which may be brought to enforce those duties.
Directors' and officers' duties
As discussed earlier in the article, a director or senior executive risks breaching the
duty to act in good faith in the interests of the company if he or she authorises a
political donation in circumstances where there is no obvious benefit – direct or
indirect – for the company's shareholders.103 In addition, if a director or senior
executive authorises a political donation in circumstances where he or she stands to
gain personally – either directly or indirectly – then there is a risk of breaching the
fiduciary duty to avoid a conflict between personal interests and duties to the
company, and also the statutory duty not to make improper use of position.104
These duties may be enforced by the Australian Securities and Investments
Commission (ASIC),105 by the company itself106 or, in limited circumstances, by a
shareholder under the statutory derivative action provisions.107
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Australia, an act of a director in disregard of the interests of the company only affects the
validity of the director's acts and does not affect the validity of the corporate action.
Directors are under an obligation to ensure that company powers and funds are used only
for company purposes: ANZ Executors and Trustee Co Ltd v Qintex Australia Ltd [1991] 2 Qd
R 360.
100 See eg, Freeman and Lockyer v Buckhurst Park Properties (Mangal) Ltd [1964] 2 QB 480; HelyHutchinson v Brayhead Ltd [1968] 1 QB 549; Crabtree-Vickers Pty Ltd v Australian Direct Mail
Advertising and Addressing Co Pty Ltd (1975) 133 CLR 72.
101 Corporations Act, ss 128, 129.
102 The commentary on Simmonds v Heffer agrees that donations are more-appropriately
challenged under heads of directors' duties, and not the doctrine of ultra vires: Ewing,
above n 87, 69; Leon Cane, 'Ultra Vires and Political Donations' (1984) New Law Journal 749,
750.
103 See Hutton (1883) 23 Ch D 654 and Corporations Act, s 181.
104 Corporations Act, s 182. For a discussion of the legal duties owed by directors and other
officers of companies see H A J Ford, R P Austin and I M Ramsay, Ford's Principles of
Corporations Law (10th ed 2001), Chs 8 and 9.
105 Australian Securities and Investments Commission Act 2001 (Cth), s 50; Corporations Act, ss
1317J(1), 1324.
106 The company's right to bring legal proceedings in respect of a breach of fiduciary duty by a
director or senior executive is an inherent general law power. In relation to a breach of one
of the officers' duties in the Corporations Act (eg, s 181 or s 182), the company has power to
apply for compensation under s 1317J(2), and would normally be entitled (as 'a person
whose interests have been … affected' by the breach) to apply for an injunction under s
1324.
107 Corporations Act, Part 2F.1A. A shareholder may also be able to apply for an injunction
under s 1324 if a board decision to make a political donation amounts to a breach of one or
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An action by ASIC is probably unlikely except in extreme circumstances, given
ASIC's limited resources and wide range of competing demands on its enforcement
arm. It is also unlikely that the company would bring legal proceedings – unless there
has been a change of control. This is particularly the case where the decision to make a
political donation is a 'collective' decision made by the board of directors because the
power to commence litigation in the company's name is ordinarily a power of the
board of directors.108 A derivative action by a shareholder in respect of a political
donation authorised by the board is also considered unlikely except in extreme
circumstances. The incentives for this type of shareholder litigation are particularly
weak.109 Also, a derivative action could commence only if, among other things, the
court considered the alleged breach of duty arising from the political donation as
sufficiently serious that it was in the best interests of the company that a derivative
action be allowed to proceed.110
Oppression
Political donations may form the basis of an oppression application under Part 2F.1 of
the Corporations Act. Under Part 2F.1, any member of a company111 has power to apply
to the court for an order under s 233 in respect of an act, omission or course of conduct
that is contrary to the interests of the company's members as a whole, or oppressive or
unfairly prejudicial to, or unfairly discriminatory against, a member or members
whether in that capacity or in any other capacity.
While there has been no reported oppression case in Australia in which the
applicant has cited political donations among the allegedly oppressive acts or conduct,
the nature of the oppression remedy is such that the possibility of this occurring in the
future cannot be ruled out. For example, a member of a small or medium-sized
company may build an oppression application around the fact that the company's
directors have decided not to pay dividends but instead to donate heavily to a political
party. This example reveals a significant limitation of the oppression remedy for
present purposes: the oppression provisions have greater scope for application to
proprietary companies than to large public companies.112
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more of the statutory officers' duties. The approach of Young J in Mesenberg v Cord
Industrial Recruiters Pty Ltd (1996) 19 ACSR 483 would preclude a shareholder applying for
an injunction under s 1324 in respect of an alleged breach of a statutory officers' duty, but
this approach was rejected by Einfeld J in Airpeak Pty Ltd v Jetstream Aircraft Ltd (1997) 27
ACSR 715.
108 See, eg, Corporations Act, s 198A (a replaceable rule), and equivalent provisions in company
constitutions; John Shaw & Sons (Salford) Ltd v Shaw [1935] 2 KB 113.
109 Ian M Ramsay, 'Corporate Governance, Shareholder Litigation and the Prospects for a
Statutory Derivative Action' (1992) 15 University of New South Wales Law Journal 149, 162-4.
110 Corporations Act, s 237(2)(c).
111 Together with a former member in limited circumstances, and also a person nominated by
ASIC in certain circumstances: Corporations Act, s 234.
112 G P Stapledon, 'Use of the Oppression Provision in Listed Companies in Australia and the
United Kingdom' (1993) 67 Australian Law Journal 575. See also Ian M Ramsay, 'An
Empirical Study of the Use of the Oppression Remedy' (1999) 27 Australian Business Law
Review 23, for evidence that the oppression remedy is mostly used in relation to proprietary
companies.
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Court-ordered winding up
Under s 461(1)(k) of the Corporations Act, the court has power to order the winding up
of a company if the court is of the opinion that it is just and equitable that the company
be wound up. A shareholder has standing to apply for a winding up order on this
ground.113 Sections 461(1)(f) and 461(1)(g) provide further grounds on which the court
may make a winding up order following a shareholder application – namely, that the
affairs of the company are being conducted in an oppressive, unfairly prejudicial or
unfairly discriminatory manner, or that an act or omission by or on behalf of the
company is oppressive, unfairly prejudicial or unfairly discriminatory.
An additional ground for a court-ordered winding up is set out in s 461(1)(e) –
namely, where a company's directors have acted in the affairs of the company in their
own interests rather than in the interests of the members as a whole, or in some other
way that appears to be unfair or unjust to members.
In practical terms, a member aggrieved by a company's political donations would
be better advised to apply for an order under the oppression provisions (Part 2F.1)
rather than a winding up order under s 461. This is because compulsory winding up is
a drastic remedy, and under s 467(4) the court is required to refrain from making a
winding up order on the grounds set out in s 461(1)(e) or (k) if the court believes that
some other remedy is available to the applicant and the applicant is acting
unreasonably in seeking to have the company wound up instead of pursuing that other
remedy. Presumably, the court may well consider that a remedy under the oppression
provisions is an acceptable alternative. These remedies include an order for the
purchase of the applicant's shares by the company or by another shareholder, or an
order prohibiting the payment of further donations.
B.
The Electoral Act
The Commonwealth Electoral Act 1918 (Cth) ('Electoral Act') regulates the practice of
donations only by requiring disclosure. The Electoral Act does no more than establish a
scheme of annual reporting and disclosure to the Australian Electoral Commission by:
• registered political parties of funds they have received (including
donations); and
• individuals, companies, trusts and foundations of donations they have
made to registered political parties.
The details of disclosure in each case are not the same. Political parties are required
to disclose all amounts they receive during a financial year (including donations, loans
and bequests) from a person or organisation where the sum of all amounts received
from that person or organisation during the financial year is $1,500 or more. In
calculating the sum, an amount of less than $1,500 need not be counted.114
Disclosure must also be made by candidates in an election or by-election of
donations they have received relating to the election.115
A person or organisation which donates $1,500 or more to a registered political
party during a financial year must provide a return to the Electoral Commission
disclosing all donations within 20 weeks after the end of the financial year. Donations
_____________________________________________________________________________________
113 Corporations Act, s 462(2)(c) and s 9 (definition of 'contributory').
114 Commonwealth Electoral Act 1918, s 314AC.
115 Commonwealth Electoral Act 1918, s 304.
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made by individuals, companies, trusts and foundations must be disclosed. There have
been concerns that the Electoral Act did not require disclosures made indirectly
through a trust or foundation. For example, a public company could donate funds to a
trust or foundation and if that trust or foundation then used those funds to make a
donation to a political party, the source of the original donation (the public company)
would not have to be disclosed. This concern has now been addressed. As a result of
amendments made by the Electoral and Referendum Amendment Act (No 1) 1999 (Cth),
the return lodged by a person or organisation which specifies the donations made to a
political party must also include details of all donations received by that person or
organisation, being donations used to make the donation to the political party.116
These amendments also require loans made to political parties to be disclosed.
The set of donation records maintained by the Australian Electoral Commission are
somewhat unworkable. The records do not neatly differentiate 'Donations to XYZ
Party made by corporations'. This is because the Electoral Act does not differentiate
between corporate and non-corporate donors. Also, it does not require the Australian
Electoral Commission to consolidate into one report all the State Branch returns from a
particular party. Weaknesses in the disclosure scheme are addressed later in this
article.
By comparison, the Companies Act 1985 (UK), as amended by the Political Parties,
Elections and Referendums Act 2000 (UK), imposes very specific disclosure requirements
upon companies. The current UK disclosure regime makes it more difficult for UK
companies to conceal political donations than is the case for Australian companies. The
Australian Corporations Act contains no specific disclosure rules.
V.
THE STUDY
A.
Collecting, categorising and consolidating the data
The data collected for the study was derived from party annual returns for 1995/96,
1996/97 and 1997/98. Research was confined to the major parties in Australian politics
– the Australian Labor Party, the Liberal Party, the National Party, the Democrats, the
Greens117 and One Nation. Because the returns are not restricted to donations, it seems
to make more sense to collect data directly from the donor returns, but these are far
more numerous and presented significant logistical and analytical problems which
could not be as easily overcome as those presented by the party annual returns.
Accordingly, data was collected from the party annual returns for ease of later
analysis.
The use of annual returns as the data source necessitated some qualitative
refinements to the extracted information to confine the data to corporate donations. In
_____________________________________________________________________________________
116 Commonwealth Electoral Act 1918, s 305B(3A). The precise requirement is as follows:
The return must also set out the relevant details of all gifts received by the person at
any time, being gifts used to make gifts the whole or part of which were used to make
gifts totalling $1,500 or more in a financial year to the same registered political party or
the same State branch of a registered political party and the amount or value of each of
which is equal to or exceeds $1,000.
117 There are many registered parties going by the name 'Green' or some derivative of that
word. We consolidated these parties under the 'Green' banner for convenience.
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the main, the parties split their annual receipts into gifts and other receipts. In these
cases, refinement consisted simply of culling the non-corporate donors from the data.
Once the set of corporate donors was obtained, these were separated into public
and proprietary companies. Non-corporate enterprises were culled, but we preserved
the data on professional firms118 and lobby groups for comparative purposes.119
The next step in the analysis involved consolidating and verifying the data. Where
a public company was seen to have made several donations to a party (say, by way of a
donation to each state branch of the party), the donations were consolidated under the
banner name of that company. Also, donations were – to a limited extent –
consolidated according to corporate groups. Where a donation was made by a
similarly named subsidiary of a public company, it was consolidated under the parent
company's name. However, no attempt was made to consolidate donations made by
group companies, which were operating under markedly different names. To have
attempted to consolidate in this comprehensive manner would have necessitated an
enormous amount of time cross-checking company names against either a database of
corporate group constituents or disclosures of subsidiaries in public companies' annual
reports.
Very little consolidation according to corporate groups was carried out for
proprietary companies. The reason is that the sheer number of proprietary companies in
existence means that similarities in name may be coincidental rather than evidence of a
group relationship. Again, verification would have involved a very substantial
exercise.
Where the party return was ambiguous or unclear, a number of databases were
used to resolve difficulties over entity type or consolidation. In some cases, the donor's
address (taken from the return) matched the address which was returned by ASIC's
website search facility, the White Pages or the Yellow Pages. However, addresses are
not conclusive because several unrelated companies may share the same registered
office (eg, that of their mutual accountant). So, in the case of uncertainty, reference was
made to the Australian Financial Review's Shareholder guidebook and Dun &
Bradstreet's Who Owns Whom, to settle questions of consolidation.
Public companies were separated into ASX-listed companies and unlisted
companies. The listed companies were then classified according to ASX industry
groups. This allowed a comparison of the patterns of corporate giving by industry
group over the three years of the study.
Given the inconsistencies and flaws in the raw data, the conclusions that may be
drawn from this research must necessarily be qualified to some extent. This raises a
separate issue. The problems with the database produced under the current disclosure
regime highlight the desirability of reforming the existing disclosure rules so that
comprehensible and meaningful information is disclosed in the future.
_____________________________________________________________________________________
118 'Professional firms' were those donors that were found to be law firms, barristers' clerking
offices and accounting firms.
119 A broad definition of 'lobby group' was adopted because it was considered inappropriate
to include some corporate donors in the corporate listings, if in substance the company was
a lobby group. In general, lobby groups were those donors that were companies limited by
guarantee, or bore the title 'Association', 'Club', 'Federation' or 'Group', but not trade
unions.
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B.
Patterns of corporate political philanthropy in Australia – 1995/96 to 1997/98
Aggregate figures over the 3 year period
Summary data is presented in Table A. Over the three year period 1995/96-1997/98,
total corporate donations were $29 million. Of this amount, 64% ($18.5 million) was
donated to the Liberal Party while 23% (or almost $7 million) was donated to the ALP.
The National Party received just under $3.5 million.
Of the total amount of $29 million, over $17 million was donated by public
companies (with 63% of this going to the Liberal Party and 29% going to the ALP) and
more than $11.6 million was donated by private companies (with 65% of this being
donated to the Liberal Party and 15.5% being donated to the ALP).
Professional firms gave almost $250,000 to the Liberal Party, just over $73,000 to the
ALP, and a mere $9,000 to the National Party. Lobby groups gave over $11 million to
the Liberal Party, almost $9 million to the ALP, and $2.7 million to the National Party.
In summary, over the three years of the study, the ALP received most of its
corporate money from public companies, while the Liberal Party received significant
sums from both the public and proprietary company sectors. The National Party's
figures varied too widely to generalise, but tended to the proprietary company sector.
The Liberal Party received substantially more than the other parties from professional
firms. Finally, the Liberal Party and the ALP both received significant amounts from
lobby groups.
Aggregate figures, year by year
Remaining with Table A, but turning to a year by year analysis, the highest corporate
political donations were made in 1995/96 – when total corporate donations amounted
to almost $15 million. More than half of this amount ($8.4 million) comprised
donations from public companies, while donations from proprietary companies
accounted for $6.3 million. Professional firms contributed a little more than $150,000,
while lobby groups accounted for almost $9.4 million. The Liberal Party was clearly the
most successful at attracting money from all sources, accounting for between 60% and
65% of all categories of corporate donation and lobby group donations, and nearly 90%
of donations by professional firms.
Overall donations fell in 1996/97, with companies giving less than half of their
previous year's level ($6.2 million). Gifts from public companies amounted to just over
$4 million, while proprietary companies contributed the remaining $2.2 million. The
Liberal Party was able to increase its share of corporate contributions – it received
between 67% and 70% of all categories of corporate donation. Professional firms gave
$68,000 in 1996/97, with almost 80% of it going to the Liberal Party. Lobby groups
gave only slightly less than in the prior year, down just over $1 million to $8.2 million.
The Liberal Party received almost 41% of this, the ALP close to 36% and the National
Party 23.5%.
Corporate giving increased to almost $8 million in 1997/98. Public company
donations were up slightly on the previous year, to just under $5 million. Proprietary
company donations were also up, to a little over $3 million. Proportionately, the level
of giving to the Liberal Party was down at the expense of increased corporate support
for the ALP, but the Liberal Party nevertheless continued to hold its position as the
most popular destination for corporate gifts. Professional firms gave just over $100,000,
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with the Liberal Party attracting 52% of this (a significantly smaller proportion than in
the previous two years); the ALP took almost 42%, and the National Party the
remaining 6.5%. Lobby groups contributed much less than in the previous two years
($5.1 million), with 51% of it going to the ALP, 43% to the Liberal Party and the
remaining 5.7% to the National Party.
Number of contributors and average size of contributions, year by year
The number of contributors varied significantly every year. In 1995/96, the Liberal
Party accepted gifts from 537 companies, with the average donation being $17,656. The
ALP received gifts from 159 corporate contributors (average: $20,918), while the
National Party had 80 corporate benefactors (average: $23,073). The Liberal Party
received an average of $32,135 from its 171 company donors, while the ALP collected
an average of $31,829 from its 77 public company donors. The National Party's 28
public company donors gave an average of $15,367, while the Democrats received an
average of $6,250 from its 8 public company donors.
Contributor numbers were down in 1996/97. The Liberal Party received gifts from
167 companies, at a higher average of $25,496 per company. The ALP received an
average $17,180 from its 74 corporate donors, while the National Party received a
similar average amount ($17,337) from its 37 corporate donors. The Democrats
received the highest average of $31,917 from just 2 corporate donors. The Liberal Party
received gifts from 72 public companies, at an average of $37,599. The ALP received
$25,065 on average from 34 public companies, while the National Party received an
average $19,622 from 22 public companies.
Contributor numbers were up in 1997/98, but average donations were lower. The
Liberal Party received an average $18,758 from 256 corporate donors, while the ALP
collected $19,473 from 112 corporate donors. The National Party had 107 corporate
donors (average: $9,282). The Liberal Party had more public company benefactors than
the previous year (106), but with total donations from public companies lower (its
average gift being $26,499). The ALP took an average $25,925 from 64 public company
donors, while the National Party collected an average $11,816 from its 39 public
company donors.
ASX-listed companies
The pattern of giving by ASX-listed companies is presented in Table B. The data has
been totalled over the three years of the study, and is confined to the three major
parties that received significant levels of donations. The industry groups shown in
Table B are those industry groups represented in the data – not all industry groups
were represented.
Each party's data can be read and interpreted independently of the data of another
party. The overall pattern of giving may be discerned from the three columns
following the 'Industry sector' column. The 'Total donated' column represents the total
amount in dollars donated to the three parties by the corresponding industry sector.
The 'Number of companies' column, however, does not reflect the total number of
donations made by the corresponding industry sector. Rather, this column indicates
how many companies in a given sector made donations to any combination of parties.
For example, in the Gold sector, 24 companies made donations – 22 to the Liberal Party
and 3 each to the ALP and the National Party. Adding up each party's number of
benefactors would give 28, which would be incorrect because several companies made
2001
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donations to more than one party. Accordingly, the figure in the 'Number of
companies' column avoids double-counting of donors. Finally, the 'Average aggregate
overall donation' column is simply the result obtained by dividing 'Total donated' by
'Number of companies'. This aggregate figure represents the average amount which
companies in a given industry sector set aside for donations to any destination; where
this figure is higher than the averages received by a particular party, it can be
concluded that companies in a given sector have donated to more than one party.
Tables C and D are derived from Table B, and are more amenable to descriptive
analysis. Table C ranks the industry sectors in descending order of total donations per
sector. It can be seen that the industry sector with the most donations was the banking
and finance sector with almost $3 million in total donations over the 3 year period.
This was followed by the tourism and leisure sector with $1.7 million in total
donations, the developers and contractors sector with $1.44 million in total donations
and the diversified industrial sector with $1.05 million in total donations. The average
amount donated by all companies within an industry sector was $686,040 which fell
between ranks 8 and 9.
Table D ranks the industry sectors in descending order of average aggregate overall
donation. The average was $118,172, which fell between ranks 9 and 10. This is the
average total amount donated by an ASX-listed company over the three years studied.
Table E is identical in form to Tables C and D, except that it is confined to each
party in turn. The pattern of ranking for donors to the Liberal Party, in terms of both
total industry sector donation and average contributions per sector, closely follows the
figures for all parties combined. The ALP's total industry sector donations and average
contributions per sector do not follow the overall figures as closely as the Liberal Party.
Both sets of figures for the National Party are at great variance to the overall figures.
These figures show clearly that the Liberal Party was the most strongly supported
party by ASX-listed companies.
Table F shows the Top 10 ASX-listed company donors. The companies have been
ranked in terms of total disclosable political donations made over the three-year period
studied. Donations made to all political parties have been combined. Only Westpac
and Village Roadshow donated more than $1 million during the three years.120 Among
the Top 10 donors, two made donations to all four major parties (Liberal, ALP,
National and Australian Democrats); five made donations to three parties (Liberal,
_____________________________________________________________________________________
120 But note that the total for National Australia Bank would also have been over a million
dollars if a disputed amount of $1 million had been counted in our study. The Liberal
Party's return for 1996/97 did not show an amount for the transaction described below.
However, in a letter to the Australian Electoral Commission, dated 30 July 1998, and on the
Commission's public database, the Liberal Party requested that its 1996/97 return be
amended to include a $1 million receipt from National Australia Bank. The letter explained:
'During the year ended 30 June 1997, as part of the Party's bank overdraft facilities with the
National Australia Bank, a commercial bill of $1 million was credited to our bank account.
This amount was not shown as a receipt in the Party's 1996/1997 Annual Return on the
basis that it was a component of the overdraft. Overdrafts are not discloseable as receipts,
but rather as debts if owed at year-end, and in our view, the same approach should apply
to the commercial bill, particularly when it is part of an overall bank overdraft
arrangement. This approach was verbally agreed with an officer of the Commission on 20
October 1997, prior to lodgement of the return, but subsequently reversed by another
officer during the conduct of the audit.'
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ALP and National); two made donations to two parties (Liberal and ALP); and one
made a donation to only one party (Liberal).
C.
Analysis
The Liberal Party consistently outperformed the other parties in terms of attracting
corporate donations. So consistent, in fact, and so successful that in each year of the
study, over the three-year period in aggregate, and in each corporate category, the
Liberal Party's donations amounted to more than those of the other parties combined.
With respect to ASX-listed companies, the Liberal Party was able to achieve
similarly dominant results for all industry sectors except Engineering, from which it
received a few thousand dollars less than the ALP over the three years of the study.
The Liberal Party was also able to attract donations from every industry sector except
Chemicals, from which there were no disclosed donations at all.
In total, the level of donations could be said to be financially immaterial from the
perspective of the corporate sector. About $29 million in total was donated by
corporations to political parties over the three years of the study, which is not a large
amount of money compared to the value of the corporate sector. Confining the analysis
for the moment to public companies, the three-year figure of $17 million seems even
less significant when contrasted with the multi-billion-dollar market capitalisation of
ASX-listed companies.121 Although the figures have not been tested for company size,
the data intuitively confirms the findings of US studies that, other things being equal,
large companies tend to make larger donations than small companies.122 One thing,
though, is certain: the data do not allow us to gauge the effect of the donations.
Whether the donations have assisted the commercial aspirations of the donors is
entirely speculative.
A possible conclusion is that the level of donations is hardly cause for concern. But
before this conclusion may be made it is important to consider three factors. First,
although the figure of $29 million over three years seems relatively small in contrast to
the value of the corporate sector, it would be considered a much more significant sum
when compared to the budget of the political parties. From the public policy
perspective, a key issue is how much leverage a company (or companies) obtains as a
result of political donations. This is more a factor of the importance of the donation to
the political party than the relative size of the donation compared to the company's
own value.
Second, from the corporate perspective, it is important that decisions to donate
public company funds to political parties are subject to some checks and balances.
Typically, these decisions will be made by the board of directors or a senior executive,
but the money being donated is not theirs. As a matter of company law it is the
_____________________________________________________________________________________
121 As at 31 December 1998, the market capitalisation of companies listed on the ASX was
$536.2 billion: Australian Stock Exchange, Fact Book 1999 (1999) 26.
122 Adams and Hardwick, above n 57, 645, citing studies by R L Watts and J L Zimmerman,
'Towards a Positive Theory of the Determination of Accounting Standards' (1978) 53
Accounting Review 112-34; A Belkaoui and P G Karpik, 'Determinants of the Corporate
Decision to Disclose Social Information' (1988) 2(1) Accounting, Auditing and Accountability
Journal 36-44; and S A Lenway and K Rehbein, 'Leaders, Followers and Free Riders: An
Empirical Test of Variation in Corporate Political Involvement' (1991) 34 Academy of
Management Journal 893-905.
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company's money – and as a matter of substance it is the shareholders' money; it is not
the directors' money.
Third, for the period of the study (1995/96-1997/98), there were readily available
means to circumvent the existing disclosure provisions. The real level of corporate
political 'support' would be revealed to be considerably higher if (i) donations made
indirectly via clubs, trusts and foundations, and (ii) gifts-in-kind were to be added to
the disclosed gifts in money. Indeed, the real level of corporate political support could
be several times higher than the figures reported above. It is simply not possible to say
because of the inadequate disclosure requirements that operated during the period of
the study. The 1999 amendments to the Electoral Act, outlined in Section IVB above,
should operate to improve disclosure. However, further reform is needed, as
recommended in the next section.
VI.
OPTIONS FOR REFORM
A.
Background
Shareholders' current powers in relation to political donations are very limited.123 In
its recent consultative paper concerning regulation of corporate political donations in
the UK, the DTI summarised the current options for a company's shareholders seeking
to prevent the directors from making political donations:
(a) challenge the donations in court on the grounds that the making of political donations
fell outside the objects clause in the company's [constitution] … (b) challenge the
donations in court on the grounds that the directors have acted in breach of their
fiduciary duties … (c) require the directors to obtain prior shareholder approval by
amending the company's [constitution to that effect].124
The first option is, as already discussed,125 of limited applicability in Australia
because the doctrine of ultra vires with respect to companies has been abolished. The
second option, concerning directors' and officers' duties, has been considered earlier in
this article. The DTI paper considered a shareholder lawsuit over a political donation
an unlikely event given the courts' traditional reluctance to review the merits of
business decisions made by the board,126 and the limited circumstances in which a
shareholder may bring an action for breach of directors' duties.127 A similar view was
expressed earlier in this article, in relation to Australia.
The third option is unlike the first two options, which are reactive in nature. The
DTI's main concern with the third option was the unlikelihood that there would be
widespread adoption of such a clause in companies' constitutions. History shows that
changes to company constitutions are normally board/management-initiated. In
widely-held listed companies, it would be very rare for a shareholder-sponsored
_____________________________________________________________________________________
123 Department of Trade and Industry, above n 26, para 4.1.
124 Ibid.
125 See Section IVA above.
126 See, eg, Harlowe's Nominees Pty Ltd v Woodside (Lakes Entrance) Oil NL (1967) 121 CLR 483,
493.
127 Department of Trade and Industry, above n 26, para 4.1.
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proposal for a change to the constitution – which did not enjoy board and management
support – to be successful.128
In summary, the options currently available for shareholders of large companies to
place checks and balances on their companies' political donations are very limited. But
several interested parties – including a UK parliamentary committee,129 the UK
government,130 an Australian political party131 and shareholder advisory firms132 –
have concluded that leaving the matter of political donations mainly to the directors'
discretion gives rise to an accountability problem. Specifically, it is not clear whether a
particular donation has been made to serve primarily the interests of the company, or
one or more of the company's directors. Reforms have been sought that would provide
shareholders and the public generally with greater confidence that, when a company
makes a donation to a political party, it is doing so because the donation is
demonstrably in the company's interest.133
B.
A statutory requirement for prior shareholder approval
The Australian Democrats proposals and UK government legislative changes
As mentioned earlier, the Australian Democrats have proposed that public companies
be required to obtain shareholder approval for their 'donation policies'.134
A similar – but more detailed – proposal was made by the UK Neill Committee. The
Committee recommended a change to the Companies Act 1985 (UK) to require prior
shareholder authority as a pre-condition to a company making political donations. The
specific nature of the reform suggested by the Committee involves:
• shareholders voting by ordinary resolution to give the directors a broad
enabling authority to exercise discretion in making donations;
• the authority would be subject to renewal at every fourth annual general
meeting;
• the authority would state a limit on the total amount available for political
donations over the four years;
• 'political donation' would be defined very broadly; and
• donations made by a subsidiary would be permissible only if both the
subsidiary's shareholder(s) and the shareholders of its holding company had
given prior approval.135
_____________________________________________________________________________________
128 See Geof Stapledon, Sandy Easterbrook, Pru Bennett and Ian Ramsay, Proxy Voting in
Australia's Largest Companies (Research Report, Centre for Corporate Law and Securities
Regulation and Corporate Governance International, 2000).
129 Neill Committee, above n 21.
130 Department of Trade and Industry, above n 26.
131 Australian Democrats, above n 1.
132 See, eg, Pensions and Investments Research Consultants (PIRC), Trends in Political
Donations and Shareholder Authorisation (PIRC, London, 1998).
133 Department of Trade and Industry, above n 26, Foreword.
135 Neill Committee, above n 21, paras 4.44, 4.45, 6.34-6.37; Recommendation 34; Department
of Trade and Industry, above n 26, ch 3, 4.
2001
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These recommendations have been enacted as ss 139 and 140 (and Schedule 19) of
the Political Parties, Elections and Referendums Act 2000 (UK).
Recommendation
A shareholder-approval provision of the kind recently enacted in the UK should be
introduced into the Australian Corporations Act. There are three factors which, taken in
combination, support this recommendation.
First, when a company's board (or a senior executive) authorises a political
donation out of company funds, the money donated – or other benefit provided – does
not come from the directors' own funds. The benefit is provided by the company. In an
economic sense the benefit is provided by the company's shareholders.
Second, a decision to make a political donation will in many cases be materially
different from other 'business' decisions made by a large company's board and senior
management. The benefit to the company from the donation will in many cases be at
best extremely indirect and of uncertain magnitude.136 However well-intentioned, any
benefit to the company from this form of 'investment' is often going to be far more
speculative than is the case with other investment decisions made by the board and
senior management.
Third, it is reasonable to assume that a component of management self-interest
accompanies many corporate political donations. But the options currently available
for shareholders of large companies to place checks and balances on their companies'
political donations are very limited. Therefore, it is likely that many political donations
made by public companies entail agency costs.
Accordingly, imposing an appropriately designed shareholder-approval requirement
can be viewed as a justifiable form of regulatory intervention. The likely benefits of an
appropriately designed rule would probably outweigh the likely costs. A key benefit
would flow from reducing the agency costs that accompany those donations that are
motivated largely by management self-interest. The major cost would probably be the
management time spent justifying the proposed shareholder resolution.137
Appropriate design of the rule entails, among other things, recognising that:
• The benefit from reducing agency costs would be tangible only in mediumsized and large companies – particularly widely-held public companies. This is
because, in many proprietary companies, there is significant overlap between
the people who manage the company's business and the people who own the
company's shares.
• Obtaining shareholder approval can be an expensive process for large listed
companies.
_____________________________________________________________________________________
136 We are not referring here to donations that are intended to influence a government tender,
or in some other way confer a direct financial benefit on the company. Rather, we are
referring to the presumably (hopefully) more common variety: where the board is
supporting a particular political party due to a commonality of view over major long-term
policy issues.
137 Shareholders must be given adequate disclosure about matters on which they are asked to
vote: Corporations Act, s 249L(b); Bulfin v Bebarfalds Ltd (1938) 38 SR NSW 423, 440;
Chequepoint Securities Ltd v Claremont Petroleum NL (1986) 11 ACLR 94, 96-7; Fraser v NRMA
Holdings Ltd (1995) 15 ACSR 590.
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The first point indicates that the rule should be confined to public companies. But to
stop circumvention, the rule should be drafted sufficiently widely to catch benefits
provided by subsidiaries or other controlled entities of a public company.
The second point explains why, under the recent UK changes, approval and
subsequent 'renewals' would be spaced four years apart. Of more importance, though,
the political donations matter could be added to the agenda for the annual general
meeting – a shareholder meeting which all public companies must hold in any
event.138 This suggests that the expense attributable to a new shareholder-approval
rule is unlikely to be great. As indicated, it would consist largely of management time
spent justifying the proposed resolution granting donation-making power to the
board.
C.
Improved disclosure rules
The recent UK legislation referred to above provides for a broad definition of a
political donation to a registered political party. It means:
• any gift to the party of money or other property;
• any sponsorship provided in relation to the party;
• any subscription or other fee paid for affiliation to, or membership of, the party;
• any money spent (otherwise than by or on behalf of the party) in paying any
expenses incurred directly or indirectly by the party;
• any money lent to the party otherwise than on commercial terms; and
• the provision otherwise than on commercial terms of any property, services or
facilities for the use or benefit of the party (including the services of any
person).139
The Australian Democrats have proposed that public companies be required to
make 'full donations disclosure' in their annual report of donations to political
parties.140 The proposal appears to mirror the UK position. That is, it seems to be
intended to catch all forms of benefit or 'support' provided by public companies to
political parties. Presumably, the Democrats intend the rule to catch:
• support provided not only by the public company but also by any subsidiary or
controlled entity of the public company; and
• support provided not only directly to political parties but also indirectly to
organisations (clubs, trusts, foundations, etc) that support political parties.
The Australian Democrats' proposals provide support for the shareholder-approval
rule proposed above. The information produced under a comprehensive disclosure
rule would enable shareholders, when considering whether to empower the board to
make political donations for the next four years, to make their decision with detailed
knowledge of the way in which company funds had been donated in the previous
four-year period.
_____________________________________________________________________________________
138 Corporations Act, s 250N.
139 Political Parties, Elections and Referendums Act 2000 (UK), s 50.
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VII.
CONCLUSION
Corporate political donations are of interest for several reasons including:
• a concern that commercial interests can be advanced by donating funds to
political parties; and
• in the case of public companies, that the funds being donated are not those of
the directors of the company who make the decision to donate the funds but are
the funds of the company's shareholders.
In order to ascertain the extent of corporate political donations, the authors
conducted a study, the data for which was derived from the annual returns of the
major political parties lodged with the Australian Electoral Commission for 1995/96,
1996/97 and 1997/98.
Over this three year period, total corporate donations were $29 million. Of this
amount:
• 64% was donated to the Liberal Party while 23% was donated to the ALP;
• over $17 million was donated by public companies (with 63% of this going to
the Liberal Party and 29% to the ALP); and
• more than $11.5 million was donated by private companies (with 65% of this
going to the Liberal Party and 15.5% to the ALP).
In Australia, concerns have been expressed about inadequate disclosure
requirements for political donations. The Electoral Act requires disclosure of political
donations. However, disclosure under this Act is inadequate because it does not
require disclosure of 'financial benefits' other than donations and loans made to
political parties. For example, it may not catch a bank forgiving a loan made to a
political party. In 2000 the Australian Democrats outlined reform proposals:
• to require shareholder approval of 'donation policies' of public companies (this
mirrors the recent amendments to the Companies Act 1985 (UK) to require that
any company wishing to make a donation to a political party in the UK must
obtain the prior approval of its shareholders); and
• to require 'full donations disclosure' in a public company's annual report.
These reforms should be supported.
2001
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TABLE A: corporate donations 1995—1998
$
ALP
Liberal
National
Democrat
Greens
One Nation
ALP
Liberal
National
Democrat
Greens
One Nation
n=
Mean
Median
1995-1996
Total Corporate Donations
3,325,949 159 20918 10000
9,481,495 537 17,656
5,000
1,845,850 80 23,073
5,000
113,210 14
8,086
5,000
3,600
2
1,800
1,800
----14,770,104
%
22.5
64.2
12.5
0.8
0.0
100.0
1995-1996
Total Public Company Donations
2,450,832 77 31,829 20,000
29.1
5,495,130 171 32,135 10,000
65.2
430,272 28 15,367
6,000
5.1
50,000
8
6,250
5,000
0.6
0
0.0
0.0
8,426,234
100.0
1995-1996
Total Private Company Donations
ALP
Liberal
National
Democrat
Greens
One Nation
875,117 82
3,986,365 366
1,415,578 52
63,210
6
3,600
2
6,343,870
10,672
10,892
27,223
10,535
1,800
5,000
5,000
5,000
7,500
1,800
13.8
62.8
22.3
1.0
0.1
0.0
100.0
$
n=
Mean
Median
1996-1997
1,271,287 74 17,180
5,750
4,257,876 167 25,496
5,000
641,465 37 17,337
10,000
63,834
2 31,917
31,917
0
0
6,234,462
%
20.4
68.3
10.3
1.0
0.0
100.0
$
n=
Mean
Median
1997-1998
2,180,970 112 19,473 10,000
4,801,927 256 18,758
5,000
993,160 107
9,282
5,000
18,759
3
6,253
5,000
0
0
7,994,816
%
27.3
60.1
12.4
0.2
0.0
100.0
1996-1997
1997-1998
869,887 34 25,065
15,000
21.7 1,659,196
64 25,925 15,000
33.6
2,707,147 72 37,599
15,000
67.5 2,808,886 106 26,499 10,000
56.9
431,680 22 19,622
10,250
10.8 460,834
39 11,816 10,000
9.3
2,292
1
2,292
2,292
0.1
5,000
1
5,000
5,000
0.1
0
0.0
0
0.0
0
0.0
0
0.0
4,011,006
100.0 4,933,916
100.0
1996-1997
401,400
1,550,729
209,785
61,542
0
0
2,223,456
40
95
15
1
10,035
16,323
13,986
61,542
4,500
5,000
5,000
61,542
1997-1998
18.1 521,774
69.7 1,993,041
9.4 532,326
2.8
13,759
0.0
0
0.0
0
100.0 3,060,900
48
150
68
2
10,870
13,287
7,828
6,879
5,000
5,000
5,000
6,879
17.0
65.1
17.4
0.4
0.0
$
%
Total Corporate
Donations — 3
Year Total
6,778,206
23.4
18,541,298
63.9
3,480,475
12.0
195,803
0.7
3,600
0.0
0
28,999,382
100.0
Total Public
Donations — 3
year total
4,979,915
28.7
11,011,163
63.4
1,322,786
7.6
57,292
0.3
0
0.0
0
0.0
17,371,156
100.0
Total Private
Company
Donations— 3 year
total
1,798,291
15.5
7,530,135
64.8
2,157,689
18.6
138,511
1.2
3,600
0.0
100.0 11,628,226
100.0
212
Federal Law Review
Volume 29
____________________________________________________________________________________
$
ALP
Liberal
National
Democrat
Greens
One Nation
ALP
Liberal
National
Democrat
Greens
One Nation
n=
Mean
Median
%
$
n=
Mean
Median
%
1995-1996
Total Professional Firm Donations
16,932
8
2,117
2,000
11.1
135,448 19
7,129
2,854
88.9
0
0.0
0
0.0
0
0.0
0.0
152,380
100.0
1996-1997
12,00
3
4,000
5,000
17.6
54,304
3 18,101
25,000
79.5
2,000
1
2,000
2,000
2.9
0
0.0
0
0.0
0
0.0
68,304
100.0
1995-1996
Total Lobby Group Donations
3,246,840 18 180,380 26,600
34.6
5,647,687 38 148,623
6,750
60.1
462,633 13 35,587 15,000
4.9
25,000
3
8,333 10,000
0.3
9,975
1
9,975
9,975
0.1
0.0
9,392,135
100.0
1996-1997
2,936,049
9 326,228
50,000
35.8
3,334,432 40 83,361
3,500
40.7
1,928,929
7 275,561
67,000
23.5
0
0.0
0
0.0
0
0.0
8,199,410
100.0
$
n=
Mean
Median
%
$
%
Total Professional
1997-1998
Firm Donations —
3 year total
44,565
3 14,855
3,000
41.6
73,497
22.4
55,615
11
5,056
5,000
51.9
245,367
74.8
7,000
2
3,500
3,500
6.5
9,000
2.7
0
0.0
0
0.0
0
0.0
0
0.0
0
0.0
0
0.0
107,180
100.0
327,864
100.0
Total Lobby Group
1997-1998
Donation s — 3
year total
2,615,010
14 186,786
6,000
51.2 8,797,899
38.8
2,204,408
32 68,888
5,000
43.1 11,186,527
49.3
289,952
8 36,244
5,500
5.7 2,681,514
11.8
0
0.0
25,000
0.1
0
0.0
9,975
0.0
0
0.0
0
0.0
5,109,370
100.0 22,700,915
100.0
2001
213
____________________________________________________________________________________
43,625
6,500
15,000
146,500
103,062
103,062
53,000
70,000
2,000
87,429
62,000
25,500
50,000
0
325,000
52,833
52,833
120,000
0
120,000
63,767
139,800
1,500
0
0
50,000
23,333
25,000
20,000
81,880
65,750
39,500
198,900
122,119
122,119
64,600
72,250
34,000
64,125
82,750
14,333
84,000
20,500
329,500
60,908
60,908
68,950
4,400
133,500
101,893
335,625
11,167
5,000
0
3,500
22,167
56,500
0
60,000
0
0
60,000
233,972
233,972
67,000
65,000
2,000
57,400
32,000
4,400
16,000
0
5,000
180,596
180,596
0
0
0
36,500
25,000
1,500
0
10,000
0
35,000
35,000
0
1
0
0
1
6
6
2
1
1
9
4
2
2
0
1
3
3
0
0
0
3
1
1
0
1
0
1
1
0
Avg to Nat
5
2
2
1
14
14
5
4
1
12
2
6
2
1
1
9
9
2
1
1
7
2
3
1
0
1
3
1
0
No to Nat
409,400
131,500
79,000
198,900
1,709,661
1,709,661
323,000
289,000
34,000
769,500
165,500
86,000
168,000
20,500
329,500
548,176
548,176
137,900
4,400
133,500
713,250
671,250
33,500
5,000
0
3,500
66,500
56,500
0
Total to Nat
4
2
1
1
10
10
4
3
1
7
3
2
1
0
1
6
6
1
0
1
3
1
1
0
0
1
3
2
1
Avg to Lib
174,500
13,000
15,000
146,500
1,030,619
1,030,619
212,000
210,000
2,000
612,000
186,000
51,000
50,000
0
325,000
317,000
317,000
120,000
0
120,000
191,300
139,800
1,500
0
0
50,000
70,000
50,000
20,000
No to Lib
128,780
72,250
47,000
405,400
212,447
212,447
120,400
141,000
38,000
84,641
63,917
23,567
78,000
20,500
659,500
116,197
116,197
128,950
4,400
253,500
117,631
418,025
12,167
5,000
10,000
53,500
34,300
70,750
20,000
Total to Lib
No to ALP
5
2
2
1
14
14
5
4
1
17
6
6
3
1
1
9
9
2
1
1
8
2
3
1
1
1
5
2
1
Avg to ALP
Total to ALP
643,900
144,500
94,000
405,400
2,974,252
2,974,252
602,000
564,000
38,000
1,438,900
383,500
141,400
234,000
20,500
659,500
1,045,772
1,045,772
257,900
4,400
253,500
941,050
836,050
36,500
5,000
10,000
53,500
171,500
141,500
20,000
Avg. aggregate
overall
donation
Alcohol and Tobacco
Brewer (081)
Tobacco (083)
Tobacco & Food (084)
Banking and Finance
Banking (161)
Building Materials
Building Materials (071)
Cement (072)
Developers and Contractors
Building, Contractor (061)
Property, Development Manager (062)
Residential Developer (063)
Developer, Retailer (064)
Developer, Finance (065)
Diversified Industrial
Diversified Industrial (231)
Diversified Resources
Oil, Steel, Mining (032)
Mining, Smelting (033)
Energy
Oil/gas producer (041)
Oil/gas explorer (042)
Oil/gas investor (043)
Coal (045)
Uranium (046)
Engineering
Heavy Engineering (111)
Steel merchants & Agents (112)
Number of
companies
Industry sector
Total donated
TABLE B: Donations by listed companies by industry group — 3 year total
60,000
0
0
60,000
38,995
38,995
33,500
65,000
2,000
6,378
8,000
2,200
8,000
0
5,000
60,199
60,199
0
0
0
12,167
25,000
1,500
0
10,000
0
35,000
35,000
0
5,000
5,000
414,200
143,200
10,000
5,000
250,000
6,000
253,037
125,520
85,017
6,500
31,000
5,000
170,000
134,000
7,500
28,500
286,000
286,000
1,028,050
1,028,050
662,350
4,800
556,000
10,000
41,000
50,550
341,146
28,490
212,656
100,000
0
0
157,000
40,000
0
0
115,000
2,000
24,000
10,000
4,000
0
10,000
0
39,000
34,000
0
5,000
75,000
75,000
224,500
224,500
255,000
0
245,000
0
0
10,000
100,000
0
100,000
0
0
0
4
2
0
0
1
1
3
1
1
0
1
0
2
1
0
1
2
2
5
5
4
0
3
0
0
1
1
0
1
0
0
0
39,250
20,000
0
0
115,000
2,000
8,000
10,000
4,000
0
10,000
0
19,500
34,000
0
5,000
37,500
37,500
44,900
44,900
63,750
0
81,667
0
0
10,000
100,000
0
100,000
0
5,000
5,000
215,200
68,200
10,000
5,000
130,000
2,000
211,537
108,020
71,017
6,500
21,000
5,000
131,000
100,000
7,500
23,500
166,000
166,000
791,550
791,550
407,350
4,800
311,000
10,000
41,000
40,550
231,146
28,490
102,656
100,000
1
1
8
4
1
1
1
1
22
9
9
1
2
1
5
1
1
3
2
2
6
6
8
1
3
1
2
1
6
3
2
1
5,000
5,000
26,900
17,050
10,000
5,000
130,000
2,000
9,615
12,002
7,891
6,500
10,500
5,000
26,200
100,000
7,500
7,833
83,000
83,000
131,925
131,925
50,919
4,800
103,667
10,000
20,500
40,550
38,524
9,497
51,328
100,000
0
0
42,000
35,000
0
0
5,000
2,000
17,500
7,500
10,000
0
0
0
0
0
0
0
45,000
45,000
12,000
12,000
0
0
0
0
0
0
10,000
0
10,000
0
0
0
3
1
0
0
1
1
3
2
1
0
0
0
0
0
0
0
2
2
2
2
0
0
0
0
0
0
1
0
1
0
Avg to Nat
No to Nat
Total to Nat
Avg to Lib
No to Lib
Total to Lib
Avg to ALP
5,000
5,000
51,775
35,800
10,000
5,000
250,000
6,000
10,543
13,947
7,729
6,500
15,500
5,000
34,000
134,000
7,500
9,500
143,000
143,000
146,864
146,864
82,794
4,800
185,333
10,000
20,500
50,550
56,858
9,497
106,328
100,000
No to ALP
1
1
8
4
1
1
1
1
24
9
11
1
2
1
5
1
1
3
2
2
7
7
8
1
3
1
2
1
6
3
2
1
Total to ALP
Avg. aggregate
overall
donation
Engineering contractors (114)
Light engineering (115)
Food and Household
Food (091)
Flour miller, baker (092)
Miller, Baker, Food (093)
Soft drink, Confectionery (094)
Household goods, Chemicals (096)
Gold
Gold Producer (011)
Gold Explorer (012)
Gold, oil (014)
Gold, copper (015)
Gold, Investment (016)
Health Care and Biotechnology
Pharmaceutical (211)
Biotechnology (212)
Hospital Management (213)
Infrastructure and Utilities
Electricity, Gas (052)
Insurance
Insurance Company (171)
Investment and Financial Services
Investment Trust/Company (191)
Equity Investor (192)
Property investor (193)
Trustee company (194)
Miscellaneous financial services (195)
Media
Diversified Media (151)
Television (153)
Radio (154)
Number of
companies
Industry sector
Total donated
214
Federal Law Review
Volume 29
____________________________________________________________________________________
0
0
14,000
35,000
0
0
5,000
2,000
5,833
3,750
10,000
0
0
0
0
0
0
0
22,500
22,500
6,000
6,000
0
0
0
0
0
0
10,000
0
10,000
0
5
0
0
2
1
1
1
4
2
0
1
0
1
1
1
0
0
2
1
1
0
0
0
0
5
2
0
3
3
1
1
1
11,693
42,375
1,817
7,750
9,537
2,000
4,000
99,286
170,250
10,000
2,000
2,000
0
495,000
495,000
14,500
14,500
115,750
215,375
133,000
7,500
5,321
6,750
2,462
182,107
53,917
10,000
367,667
52,000
59,000
45,000
0
9,500
0
0
7,500
0
2,000
0
85,000
85,000
0
0
0
0
20,000
20,000
0
0
121,000
96,000
25,000
0
0
0
0
10,000
10,000
0
0
15,000
5,000
0
10,000
3
0
0
2
0
1
0
2
2
0
0
0
0
1
1
0
0
2
1
1
0
0
0
0
1
1
0
0
2
1
0
1
Avg to Nat
No to Nat
12
2
3
2
3
1
1
7
4
1
1
1
0
1
1
1
1
5
2
1
2
3
2
1
7
3
1
3
2
1
1
0
Total to Nat
140,310
84,750
5,450
15,500
28,610
2,000
4,000
695,000
681,000
10,000
2,000
2,000
0
495,000
495,000
14,500
14,500
578,750
430,750
133,000
15,000
15,962
13,500
2,462
1,274,750
161,750
10,000
1,103,000
104,000
59,000
45,000
0
Avg to Lib
Avg to ALP
3,600
0
0
3,750
6,500
2,000
2,000
20,000
37,500
0
2,500
0
2,500
125,000
125,000
0
0
132,990
165,980
100,000
0
0
0
0
82,860
25,000
0
121,433
22,267
20,000
1,800
45,000
No to Lib
18,000
0
0
7,500
6,500
2,000
2,000
80,000
75,000
0
2,500
0
2,500
125,000
125,000
0
0
265,980
165,980
100,000
0
0
0
0
414,300
50,000
0
364,300
66,800
20,000
1,800
45,000
No to ALP
13,984
42,375
1,817
15,250
11,703
6,000
6,000
107,500
210,250
10,000
4,500
2,000
2,500
640,000
640,000
14,500
14,500
193,146
346,365
258,000
7,500
5,321
6,750
2,462
212,381
55,438
10,000
489,100
61,933
84,000
46,800
55,000
Total to ALP
12
2
3
2
3
1
1
8
4
1
1
1
1
1
1
1
1
5
2
1
2
3
2
1
8
4
1
3
3
1
1
1
Total to Lib
167,810
84,750
5,450
30,500
35,110
6,000
6,000
860,000
841,000
10,000
4,500
2,000
2,500
640,000
640,000
14,500
14,500
965,730
692,730
258,000
15,000
15,962
13,500
2,462
1,699,050
221,750
10,000
1,467,300
185,800
84,000
46,800
55,000
Avg. aggregate
overall
donation
Miscellaneous Industrials
Miscellaneous Industrials (221)
Miscellaneous services (222)
Agriculture and Related Services (224)
Automotive and Related Services (225)
Entrepreneurial Investors (227)
High technology (228)
Other Metals
Diversified Mining (021)
Base metals (022)
Mining (producers) (026)
Mining (explorer) (027)
Mining investment (028)
Paper and Packaging
Forest products, Trade (122)
Property Trusts
Property Trust (201)
Retail
Retail (131)
Wholesaler, retail (132)
Retail, investments (134)
Telecommunications
Network operator (181)
Equipment, services (183)
Tourism and Leisure
Casinos/gaming (241)
Hotel Operations (242)
Leisure Activities (243)
Transport
Transport (141)
International Transport (142)
Transport other services (143)
Number of
companies
Industry sector
Total donated
2001
215
____________________________________________________________________________________
3,167
0
0
3,750
0
2,000
0
42,500
42,500
0
0
0
0
20,000
20,000
0
0
60,500
96,000
25,000
0
0
0
0
10,000
10,000
0
0
7,500
5,000
0
10,000
216
Federal Law Review
Volume 29
____________________________________________________________________________________
Total to ALP
Avg. aggregate
overall
donation
Total donated
10
5
7
103,062
82,860
87,429
1,709,661
1,274,750
769,500
14
7
12
122,119
182,107
64,125
233,972
10,000
57,400
6
1
9
38,995
10,000
6,378
1,045,772
1,028,050
965,730
941,050
860,000
662,350
9
7
5
8
8
8
116,197
146,864
193,146
117,631
107,500
82,794
317,000
224,500
265,980
191,300
80,000
255,000
6
5
2
3
4
4
52,833
44,900
132,990
63,767
20,000
63,750
548,176
791,550
578,750
713,250
695,000
407,350
9
6
5
7
7
8
60,908
131,925
115,750
101,893
99,286
50,919
180,596
12,000
121,000
36,500
85,000
0
3
2
2
3
2
0
60,199
6,000
60,500
12,167
42,500
0
643,900
640,000
602,000
414,200
341,146
286,000
257,900
253,037
185,800
171,500
170,000
5
1
5
8
6
2
2
24
3
5
5
128,780
640,000
120,400
51,775
56,858
143,000
128,950
10,543
61,933
34,300
34,000
174,500
125,000
212,000
157,000
100,000
75,000
120,000
24,000
66,800
70,000
39,000
4
1
4
4
1
2
1
3
3
3
2
43,625
125,000
53,000
39,250
100,000
37,500
120,000
8,000
22,267
23,333
19,500
409,400
495,000
323,000
215,200
231,146
166,000
137,900
211,537
104,000
66,500
131,000
5
1
5
8
6
2
2
22
2
3
5
81,880
495,000
64,600
26,900
38,524
83,000
68,950
9,615
52,000
22,167
26,200
60,000
20,000
67,000
42,000
10,000
45,000
0
17,500
15,000
35,000
0
1
1
2
3
1
2
0
3
2
1
0
60,000
20,000
33,500
14,000
10,000
22,500
0
5,833
7,500
35,000
0
167,810
15,962
14,500
12
3
1
13,984
5,321
14,500
18,000
0
0
5
0
0
3,600
0
0
140,310
15,962
14,500
12
3
1
11,693
5,321
14,500
9,500
0
0
3
0
0
3,167
0
0
No to Lib
1,030,619
414,300
612,000
Total to Lib
212,447
212,381
84,641
Avg to ALP
14
8
17
No to ALP
2,974,252
1,699,050
1,438,900
Number of
companies
Avg to Nat
21
22
23
No to Nat
10
11
12
13
14
15
16
17
18
19
20
Total to Nat
4
5
6
7
8
9
Banking and Finance
Tourism and Leisure
Developers and
Contractors
Insurance
Retail
Energy
Other Metals
Investment and Financial
Services
Alcohol and Tobacco
Paper and Packaging
Building Materials
Food and Household
Media
Gold
Transport
Engineering
Health Care and
Biotechnology
Telecommunications
Property Trusts
Avg to Lib
1
2
3
Industry sector
Rank
TABLE C: Total donations by industry
2001
217
____________________________________________________________________________________
15
16
17
18
19
20
21
22
23
495,000
122,119
182,107
115,750
131,925
83,000
68,950
81,880
64,600
101,893
60,908
99,286
64,125
20,000
233,972
10,000
121,000
12,000
45,000
0
60,000
67,000
36,500
180,596
85,000
57,400
1
6
1
2
2
2
0
1
2
3
3
2
9
20,000
38,995
10,000
60,500
6,000
22,500
0
60,000
33,500
12,167
60,199
42,500
6,378
662,350
8
82,794
255,000
4
63,750
407,350
8
50,919
0
0
0
185,800
341,146
414,200
171,500
170,000
3
6
8
5
5
61,933
56,858
51,775
34,300
34,000
66,800
100,000
157,000
70,000
39,000
3
1
4
3
2
22,267
100,000
39,250
23,333
19,500
104,000
231,146
215,200
66,500
131,000
2
6
8
3
5
52,000
38,524
26,900
22,167
26,200
15,000
10,000
42,000
35,000
0
2
1
3
1
0
7,500
10,000
14,000
35,000
0
14,500
167,810
253,037
15,962
1
12
24
3
14,500
13,984
10,543
5,321
0
18,000
24,000
0
0
5
3
0
0
3,600
8,000
0
14,500
140,310
211,537
15,962
1
12
22
3
14,500
11,693
9,615
5,321
0
9,500
17,500
0
0
3
3
0
0
3,167
5,833
0
No to Nat
Avg to Nat
1
14
7
5
6
2
2
5
5
7
9
7
12
Total to Nat
495,000
1,709,661
1,274,750
578,750
791,550
166,000
137,900
409,400
323,000
713,250
548,176
695,000
769,500
Avg to Lib
125,000
103,062
82,860
132,990
44,900
37,500
120,000
43,625
53,000
63,767
52,833
20,000
87,429
No to Lib
1
10
5
2
5
2
1
4
4
3
6
4
7
Total to Lib
125,000
1,030,619
414,300
265,980
224,500
75,000
120,000
174,500
212,000
191,300
317,000
80,000
612,000
Avg to ALP
640,000
212,447
212,381
193,146
146,864
143,000
128,950
128,780
120,400
117,631
116,197
107,500
84,641
No to ALP
1
14
8
5
7
2
2
5
5
8
9
8
17
Total to ALP
640,000
2,974,252
1,699,050
965,730
1,028,050
286,000
257,900
643,900
602,000
941,050
1,045,772
860,000
1,438,900
Total donated
Avg.aggregate
overall
donation
14
Paper and Packaging
Banking and Finance
Tourism and Leisure
Retail
Insurance
Alcohol and Tobacco
Building Materials
Energy
Other Metals
Developers and
Contractors
Services
Transport
Media
Food and Household
Engineering
Health Care and
Biotechnology
Property Trusts
Gold
Telecommunications
Number of
companies
1
2
3
4
5
6
7
8
9
10
11
12
13
Industry sector
Rank
Table D: Average corporate donation by industry
218
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Table E: Industry corporate donations — by party
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
Banking and Finance
Developers and
Contractors
Tourism and Leisure
Avg to ALP
No to ALP
Total to ALP
Industry
sector
Rank
Avg to ALP
No to ALP
Ranked by average
Total to ALP
Industry
sector
Rank
Ranked by total
1,030,619
612,000
10
7
103,062
87,429
1
2
Retail
Paper and Packaging
265,980
125,000
2
1
132,990
125,000
414,300
317,000
5
6
82,860
52,833
3
4
Banking and Finance
1
10
120,000
103,062
Retail
Services
Insurance
Building Materials
Energy
265,980
255,000
2
4
132,990
63,750
5
6
Media
120,000
1,030,61
9
100,000
612,000
1
7
100,000
87,429
224,500
212,000
191,300
5
4
3
44,900
53,000
63,767
7
8
9
414,300
191,300
255,000
5
3
4
82,860
63,767
63,750
Alcohol and Tobacco
Food and Household
Paper and Packaging
Media
Other Metals
Engineering
Transport
Health Care and
Biotechnology
Gold
Property Trusts
Telecommunications
174,500
157,000
125,000
120,000
100,000
80,000
75,000
70,000
66,800
39,000
4
4
1
1
1
4
2
3
3
2
43,625
39,250
125,000
120,000
100,000
20,000
37,500
23,333
22,267
19,500
10
11
12
13
14
15
16
17
18
19
212,000
317,000
224,500
174,500
157,000
75,000
70,000
66,800
80,000
39,000
4
6
5
4
4
2
3
3
4
2
53,000
52,833
44,900
43,625
39,250
37,500
23,333
22,267
20,000
19,500
24,000
18,000
0
0
3
5
0
0
8,000
3,600
0
0
20
21
22
23
Tourism and Leisure
Energy
Services
Building Materials
Insurance
Alcohol and Tobacco
Food and Household
Engineering
Transport
Other Metals
Health Care and
Biotechnology
Gold
Property Trusts
Telecommunications
24,000
18,000
0
0
3
5
0
0
8,000
3,600
0
0
2001
219
____________________________________________________________________________________
12
13
14
15
16
17
18
19
20
21
22
23
14
7
6
12
122,119
182,107
131,925
64,125
1
2
3
4
Paper and Packaging
Tourism and Leisure
Insurance
Banking and Finance
713,250
695,000
578,750
548,176
495,000
409,400
407,350
7
7
5
9
1
5
8
101,893
99,286
115,750
60,908
495,000
81,880
50,919
5
6
7
8
9
10
11
323,000
231,146
215,200
211,537
5
6
8
22
64,600
38,524
26,900
9,615
12
13
14
15
Infrastructure and
Utilities
166,000
2
83,000
16
140,310
137,900
12
2
11,693
68,950
17
18
Health Care and
Biotechnology
Transport
Engineering
Telecommunications
Property Trusts
131,000
5
26,200
104,000
66,500
15,962
14,500
2
3
3
1
52,000
22,167
5,321
14,500
Avg to Lib
1,709,661
1,274,750
791,550
769,500
No to Lib
Banking and Finance
Tourism and Leisure
Insurance
Developers and
Contractors
Energy
Other Metals
Retail
Paper and Packaging
Alcohol and Tobacco
Services
Building Materials
Media
Food and Household
Gold
Total to Lib
Avg to Lib
No to Lib
Total to Lib
Industry
sector
5
6
7
8
9
10
11
Ranked by average
Rank
1
2
3
4
Industry
sector
Rank
Ranked by total
495,000
1,274,750
791,550
1,709,661
1
7
6
14
495,000
182,107
131,925
122,119
Retail
Energy
Other Metals
Alcohol and Tobacco
Building Materials
578,750
713,250
695,000
166,000
409,400
137,900
323,000
5
7
7
2
5
2
5
115,750
101,893
99,286
83,000
81,880
68,950
64,600
Transport
Services
Media
769,500
548,176
104,000
407,350
12
9
2
8
64,125
60,908
52,000
50,919
231,146
6
38,524
215,200
131,000
8
5
26,900
26,200
19
Food and Household
Health Care and
Biotechnology
Engineering
66,500
3
22,167
20
21
22
23
Property Trusts
Gold
Telecommunications
14,500
140,310
211,537
15,962
1
12
22
3
14,500
11,693
9,615
5,321
220
Federal Law Review
Volume 29
____________________________________________________________________________________
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
6
3
2
2
2
1
9
38,995
60,199
60,500
42,500
33,500
60,000
6,378
1
2
3
4
5
6
7
45,000
2
22,500
8
42,000
36,500
35,000
20,000
17,500
15,000
12,000
10,000
10,000
9,500
0
0
3
3
1
1
3
2
2
1
1
3
0
0
14,000
12,167
35,000
20,000
5,833
7,500
6,000
10,000
10,000
3,167
0
0
9
10
11
12
13
14
15
16
17
18
19
20
0
0
0
21
0
0
0
0
0
0
22
23
121,000
180,596
60,000
85,000
233,972
35,000
67,000
2
3
1
2
6
1
2
60,500
60,199
60,000
42,500
38,995
35,000
33,500
45,000
2
22,500
Paper and Packaging
Food and Household
Energy
Tourism and Leisure
Media
Transport
Insurance
Gold
Services
Health Care and
Biotechnology
Property Trusts
Telecommunications
20,000
42,000
36,500
10,000
10,000
15,000
57,400
12,000
17,500
9,500
0
0
1
3
3
1
1
2
9
2
3
3
0
0
20,000
14,000
12,167
10,000
10,000
7,500
6,378
6,000
5,833
3,167
0
0
0
0
0
0
0
0
0
0
0
Avg to Nat
Retail
Alcohol and Tobacco
Other Metals
Banking and Finance
Engineering
Building Materials
No to Nat
Rank
Avg to Nat
No to Nat
233,972
180,596
121,000
85,000
67,000
60,000
57,400
Total to Nat
8
Banking and Finance
Retail
Other Metals
Building Materials
Alcohol and Tobacco
Developers and
Contractors
Infrastructure and
Utilities
Food and Household
Energy
Engineering
Paper and Packaging
Gold
Transport
Insurance
Tourism and Leisure
Media
Services
Health Care and
Biotechnology
Property Trusts
Telecommunications
Industry
sector
1
2
3
4
5
6
7
Ranked by average
Total to Nat
Rank
Industry
sector
Ranked by total
2001
221
____________________________________________________________________________________
TABLE F: Top 10 ASX-listed company donors
Company
$A
Westpac Banking Corporation
1,272,346
Village Roadshow Limited
1,124,800
Santos Limited
833,800
WMC Limited
778,500
Coles Myer Limited
687,730
Lend Lease Corporation Limited
669,500
Amcor Limited
640,000
HIH Winterthur
462,000
National Australia Bank
445,330
Boral Limited
420,000
IN THE WAKE OF TEOH: FINDING AN APPROPRIATE
GOVERNMENT RESPONSE
Wendy Lacey*
INTRODUCTION
Few cases of recent times, beyond the decisions of Mabo1 and Wik,2 could rival Minister
for Immigration and Ethnic Affairs v Teoh,3 for the dramatic response it provoked in
political, legal and academic circles. In the aftermath of the High Court's decision in
Teoh came three Commonwealth Bills,4 one state Act,5 several 'executive statements' at
both the Federal and state level,6 and numerous academic commentaries.7 Yet, despite
the many attempts to override the decision by successive federal governments, the
Teoh principle continues to apply to the administrative decisions made at the federal
_____________________________________________________________________________________
*
BA (Hons) LLB (Hons) (Tas), PhD Candidate, University of Tasmania. The author would
like to acknowledge the kind assistance of Professor Ryszard Piotrowicz, Mr Rick Snell and
Mr Michael Stokes in offering comments on an earlier draft of this article.
1
Mabo v Queensland [No.2] (1992) 175 CLR 1.
2
Wik Peoples v Queensland (1996) 187 CLR 1.
3
Minister for Immigration & Ethnic Affairs v Teoh (1995) 183 CLR 273 ('Teoh').
4
Administrative Decisions (Effect of International Instruments) Bill 1995, Administrative
Decisions (Effect of International Instruments) Bill 1997, Administrative Decisions (Effect of
International Instruments) Bill 1999.
5
Administrative Decisions (Effect of International Instruments) Act 1995 (SA).
6
Gareth Evans and Michael Lavarch, 'International Treaties and the High Court Decision in
Teoh', Joint Statement by the Minister for Foreign Affairs and the Attorney General, May 10
1995, A Downer, 'Executive Statement on the Effect of Treaties in Administrative DecisionMaking' (1997) 8 Public Law Review 120. See also the 'Executive Statements' issued by the
South Australian and Western Australian Governments, (1996) 17 Australian Yearbook of
International Law 554.
7
Leslie Katz, 'A Teoh FAQ' (1998) 16 AIAL Forum 1; Anne Twomey, 'Minister for
Immigration and Ethnic Affairs v Teoh' (1995) 23 Federal Law Review 348; Margaret Allars,
'One Small Step for Legal Doctrine, One Giant Leap Towards Integrity in Government:
Teoh's Case and the Internationalisation of Administrative Law' (1995) 17 Sydney Law
Review 202; S Sheridan, 'Legitimate Expectations: Where Does the Law Now Lie?' (1998) 87
Canberra Bulletin of Public Administration 125-133; Kristen Walker, 'Who's The Boss? The
Judiciary, the Executive, the Parliament and the Protection of Human Rights' (1995) 25
Western Australian Law Review 238; Ryszard Piotrowicz, 'Unincorporated Treaties in
Australian Law: The Official Response to the Teoh Decision' (1997) 71 Australian Law
Journal 503; Ryszard Piotrowicz, 'Unincorporated Treaties in Australian law' (1996) Public
Law 190; PW Perry, 'At the Intersection: Australian Law and International Law' (1997) 71
Australian Law Journal 841.
220
Federal Law Review
Volume 29
____________________________________________________________________________________
level.8 The third of the Commonwealth Bills aimed at over-riding the Teoh principle of
legitimate expectation progressed only as far as its predecessors, with its debate in the
Senate having been adjourned on 5 April, 2001.
It is unlikely that enactment of the proposed Bill would have laid the Teoh principle
finally to rest, and developments since the last Senate Inquiry conducted in 1997 raise
further issues pertaining to the original High Court decision. In particular, subsequent
case law has provided clear judicial statements regarding the effectiveness (or
ineffectiveness) of earlier executive statements issued by successive federal
governments, as well as outlining what constitutes a legally enforceable 'executive
indication to the contrary'.9 In addition to recent developments on the domestic front,
the proposed Bill had also been criticised by one international body for being
inconsistent with Australia's international legal obligations, with the recommendation
that it be withdrawn.10 Given the very minor differences between the third Bill and its
two predecessors, this charge could also have been laid in respect of each of the earlier
Bills.11
These recent developments place commentators and politicians in a better position
to evaluate the impact of Teoh and the appropriateness of legislative and executive
responses to it. In doing so, consideration must be given to broader issues, both
domestic and international, associated with Australia's treaty involvement. While
successive governments have struggled to pass anti-Teoh legislation prior to the
prorogation of Parliament, further consideration of the Teoh decision by the Federal
Court has identified a more appropriate and effective response to the decision by using
detailed and specific executive measures. The use of these measures, as an alternative
to generic legislation, should be preferred as they would alleviate the problems
contained in the proposed legislation, would be more consistent with the reforms
improving executive accountability in treaty-making, and would be far less likely to
damage Australia's international standing than the proposed Act. With the new term
_____________________________________________________________________________________
8
It is doubtful whether the decision extends to administrative decisions made at the state
level, at least in the context of legitimate expectations arising out of the act of ratification
(an exclusive act of the federal executive). However, the relevance of international
instruments may arise on the basis of procedural fairness or other common law principles
applicable to administrative decisions made at the state level. South Australian legislation
is premised on the fact that Teoh may apply within the States, and precludes any means by
which international instruments may affect a decision, with the exception of instances
where a decision-maker has regard to the instrument as a matter relevant: Administrative
Decisions (Effect of International Instruments) Act 1995 (SA) s 3. On the question of whether
Teoh even applies to administrative decisions made at state level see also, Kristen Walker,
'Treaties and The Internationalisation of Australian Law', in Cheryl Saunders (ed), Courts of
Final Jurisdiction: The Mason Court in Australia (1996) 224.
9
Teoh (1995) 183 CLR 273, 291 (Mason CJ and Deane J).
10
Concluding Observations of the Human Rights Committee: Australia. 28/07/2000.
CCPR/CO/69/AUS.
11
The 1997 and 1999 Bills are exactly the same. The 1995 Bill (introduced during Labor's term
in office) was more detailed in its references to the exclusion of accepted uses of
international instruments in domestic law (clause 6), and of the availability of remedies or
redress for alleged breaches of Australia's international obligations (clause 7). The 1995 Bill
did not, however, include provision for excluding the operation of its operative clause
where state enactments applied to decisions at the state level (as was provided under
clause 6 of the 1997 and 1999 Bills).
2001
In the Wake of Teoh
221
____________________________________________________________________________________
of Parliament comes an opportunity for government to re-evaluate the response to
Teoh, and to formulate an appropriate policy that takes into consideration these recent
developments.
Notwithstanding the failure of the third anti-Teoh Bill to be passed prior to the
calling of an election (though its ultimate passage was doubtful in any event), the
perceived problem of Teoh itself remains. The decision continues to bind
administrative decision-makers, and executive statements to the contrary have had no
legal effect. While both major parties continue to support anti-Teoh legislation, despite
disagreeing on its proposed form, further attempts at overriding the High Court
decision through legislation remain a strong possibility. For as long as decision-makers
continue to be bound by Teoh, federal governments will be forced to deal with its
consequences. How well governments deal with the issue, and with avoiding the
potential effects of their own measures taken in response to Teoh (both domestically
and internationally), ultimately depends on the nature of their policy approach.
In this article I advocate a particular approach to the decision in Teoh that differs
from policies adopted during the last three consecutive terms of Federal Parliament. I
advocate an approach based on an understanding of the issues that incorporates
developments since the decision was first handed down, rather than on the concerns
that informed the initial executive and legislative responses to the decision.
Accordingly, I propose that executive measures be adopted in specific domestic
contexts and with detailed guidelines tailored to that context, rather than the adoption
of a policy which rests on generic anti-Teoh legislation as its cornerstone.
These conclusions are drawn through an analysis of several complex aspects
associated with the decision in Teoh, and of the role that government plays in
controlling the domestic effect of international legal standards. Consequently, this
article is divided into a number of sections, beginning with a consideration of the
decision in Teoh, and of the responses of successive federal governments. Those
sections are followed by an analysis of recent decisions of the Federal Court that have
provided clarification on issues relating to the effectiveness of government action that
seeks to negate the effects of Teoh.
In light of these legal developments, and of the reforms implemented in respect of
the treaty-making process in 1996, the approach of successive governments is
evaluated in the broader context of issues pertaining to executive accountability and
the treaty process. In addition to highlighting the underlying inconsistency of the
present approach adopted by government, consequences associated with the
enactment of anti-Teoh legislation are considered. These include the potential failure of
the proposed legislation to fully achieve its intended effect in domestic law and the
almost certain adverse consequences for Australia on the international legal plane.
MINISTER FOR IMMIGRATION AND ETHNIC AFFAIRS V TEOH
The High Court handed down its decision in Teoh at the same time that a Senate
Committee Inquiry was receiving submissions in respect of the treaty process.12 Part
_____________________________________________________________________________________
12
A reference was made to the Senate Legal and Constitutional References Committee on
December 8, 1994, to inquire into the Commonwealth's treaty-making and external affairs
powers. For the Final Report see, Trick or Treaty? Commonwealth Power to make and Implement
222
Federal Law Review
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____________________________________________________________________________________
of the backdrop against which the initial reference was made to the Committee was the
Toonen13 decision, in which the United Nations Human Rights Committee found that
Australia (through sections of Tasmania's Criminal Code) was in breach of its
obligations under the International Covenant on Civil and Political Rights (ICCPR).14
Consequently, the climate in which the decision was handed down was one where
much controversy centred on the level of executive accountability surrounding
Australia's treaty participation. This issue emerged in the 1990s to replace the
controversy surrounding the Commonwealth's external affairs power and the
implementation of treaties – an issue which had dominated political and legal
commentary during the 1980s.15
Both the facts and proceedings of Teoh have been outlined extensively by
commentators elsewhere,16 and need not be reproduced here. What is necessary,
however, is to reconsider the legal developments made in that case. The High Court in
Teoh re-articulated the law in respect of unincorporated treaties in domestic law, yet
employed the concept of 'legitimate expectation' used in administrative law contexts to
extend the law. The Court restated the rule that the provisions of a ratified treaty do
not form part of Australian law unless validly incorporated by domestic legislation.17
The Court also affirmed the accepted rule that ratification will have significance for
Australian law through the interpretation of legislation where provisions are
ambiguous,18 and through its legitimate influence on the development of the common
law.19 On this latter use, however, Mason CJ and Deane J advocated a cautious
approach, stating that, '[j]udicial development of the common law must not be seen as
a backdoor means of importing an unincorporated convention into Australian law'.20
Their Honours listed a number of relevant factors which should be considered before
such use of an unincorporated treaty is made, including, 'the nature of the relevant
provision, the extent to which it has been accepted by the international community, the
_____________________________________________________________________________________
Treaties, Report by the Senate Legal and Constitutional References Committee, November
1995.
13
Nicholas Toonen v Australia, Communication No. 488/1992: Australia. 04/04/94.
CCPR/C/50/D/488/1992 ('Toonen').
14
For a detailed analysis of the issues raised in Toonen, see Sarah Joseph, 'Gay Rights Under
the ICCPR: Commentary on Toonen v Australia' (1994) 13 University of Tasmania Law Review
392-411; Wayne Morgan, 'Identifying Evil for What It Is: Tasmania, Sexual Perversity and
the United Nations' (1994) 19 Melbourne University Law Review 740.
15
See for example, Cheryl Saunders, 'The External Affairs Power in the Australian
Constitution' (1994) 24 International Law News 36-40; DR Rothwell, 'The High Court and the
External Affairs Power: A Consideration of its Outer and Inner Limits' (1993) 15 Adelaide
Law Review 209-240; RD Lumb, 'The External Affairs Power and Constitutional Reform'
(1988) 62 Australian Law Journal 679-689.
16
See for example, Katz, above n 7, 1-14; Twomey, above n 7, 348-361; Allars, above n 7, 202241; Sheridan, above n 7, 125-133; Walker, above n 7, 238-254; Piotrowicz (1997), above n 7,
503-506; Piotrowicz (1996), above n 7, 190-195; Perry, above n 7, 841-859.
17
Teoh (1995) 183 CLR 273, 286-287 (Mason CJ and Deane J).
18
Ibid, 287 (relying on the decisions in Chu Kheng Lim v Minister for Immigration (1992) 176
CLR 1, 38, and Polites v Commonwealth (1945) 70 CLR 60, 68-69, 77, 80-81.
19
Teoh (1995) 183 CLR 273, 288 (Mason CJ and Deane J) (relying on the decisions in Mabo v
Queensland [No.2] (1992) 175 CLR 1, 42, and Dietrich v The Queen (1992) 177 CLR 292, 321,
360).
20
Ibid, 288.
2001
In the Wake of Teoh
223
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purpose which it is intended to serve and its relationship to the existing principles of
our domestic law'.21 The use of unincorporated treaties in these contexts, however,
were not the controversial aspects of the High Court's decision.
The controversial feature of the Court's decision was the use of the doctrine of
'legitimate expectation' by the majority judges, Mason CJ and Deane and Toohey JJ.
The invocation of the doctrine, which had been developed in a number of
administrative law cases,22 was effected by relying on the principle stated in Minister
for Foreign Affairs and Trade v Magno,23 and Tavita v Minister for Immigration,24 that
ratification of a treaty should not be dismissed as a 'merely platitudinous or ineffectual
act'.25 Using this principle, Mason CJ and Deane J employed the legitimate expectation
doctrine as follows:
[r]atification of a convention is a positive statement by the executive government of this
country to the world and to the Australian people that the executive government and its
agencies will act in accordance with the Convention. That positive statement is an
adequate foundation for a legitimate expectation, absent statutory or executive
indications to the contrary, that administrative decision-makers will act in conformity
with the Convention…It is not necessary that the person seeking to set up such a
legitimate expectation should be aware of the Convention or should personally entertain
the expectation; it is enough that the expectation is reasonable in the sense that there are
adequate materials to support it.26
The effect of the legitimate expectation was not to give the provisions of a treaty the
domestic legal status of a rule of law, thereby compelling a decision-maker to act in
accordance with the treaty. Rather, its effect was that, 'if a decision-maker proposes to
make a decision inconsistent with a legitimate expectation, procedural fairness
requires that the persons affected should be given notice and an adequate opportunity
of presenting a case against the taking of such a course'.27 In legal terms, as others
have noted,28 the decision of the High Court in Teoh did not involve a major doctrinal
leap, but merely an extension of the legitimate expectation rule to a new factual context
– the ratification of treaties. Though it has been argued otherwise,29 the decision did
not infringe the accepted rule that treaties do not form part of the domestic law until
validly incorporated by legislation, as a legitimate expectation only creates a
_____________________________________________________________________________________
21
Ibid.
22
Schmidt v Secretary of State for Home Affairs [1969] 2 Ch 149, (Lord Denning); Heatley v
Tasmanian Racing and Gaming Commission (1977) 137 CLR 487; FAI Insurances Ltd v Winnecke
(1982) 151 CLR 342; Attorney-General of Hong Kong v Ng Yuen Shiu [1983] 2 AC 629; Council
of Civil Service Unions v Minister for the Civil Service (GCHQ) [1985] AC 374; Haoucher v
Minister for Immigration and Ethnic Affairs (1990) 169 CLR 648.
23
(1992) 37 FCR 298.
24
[1994] 2 NZLR 257.
25
Minister for Foreign Affairs and Trade v Magno (1992) 37 FCR 298, 343; Tavita v Minister for
Immigration [1994] 2 NZLR 257, 266.
26
27
Ibid, 291-292.
28
Allars, above n 7, 224-225.
29
Senate Legal and Constitutional References Committee, Submissions to the Inquiry into the
Administrative Decisions (Effect of International Instruments) Bill 1997 (1997) (hereinafter
referred to as Submissions), Volume 2, Submissions No.41, 216. See also, Darryl Williams,
'International Law and Responsible Engagement', ANSZIL-ASIL Conference, Keynote
Address, Australian National University, 29 June 2000 (copy on file with author).
224
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____________________________________________________________________________________
procedural right and does not confer substantive protection.30 However, the response
of successive governments has been that even procedural rights arising out of the
ratification of a treaty should be effected by the Parliament and not through executive
action.31
THE GOVERNMENT RESPONSE TO TEOH
In their response to the Teoh decision, the then Labor Federal Government purported to
make 'an executive indication to the contrary' pursuant to the judgment of Mason CJ
and Deane J.32 This statement attempted to prevent the creation of legitimate
expectations arising out of the ratification of a treaty and was expressed in general
terms. In addition, the Administrative Decisions (Effect of International Instruments)
Bill 1995 was introduced into Parliament. The Bill was referred to the Senate Legal and
Constitutional References Committee which, by majority, recommended its enactment
without amendment.33 However, the calling of a federal election meant that the Bill
lapsed.
Following a change of government in 1997, the newly-elected Coalition
Government issued their own executive statement, intended to replace the one issued
in 1995.34 They also introduced a 'statutory indication to the contrary' with a second
anti-Teoh Bill in 1997, which once again failed to be passed during the Government's
first term. The second Bill was also the subject of a Senate Committee Inquiry,35 yet
one which saw a shift in support by the Labor Party towards the form of the second
Bill. While still supporting the necessity for such legislation, the Labor Party advocated
amendments which would effectively include a statement outlining the recognised
uses of unincorporated treaties in domestic law – those uncontentious aspects of the
Teoh decision.36 The rationale for this stance rested on the adverse response the
legislation would be likely to invoke from the international community. This position
of the Labor Party has effectively been retained in respect of the third Administrative
Decisions (Effect of International Instruments) Bill, introduced in late 1999.
The third of the proposed anti-Teoh Bills passed through the House of
Representatives in May of 2000, though its debate in the Senate was adjourned in April
2001.37 With several months still remaining before the next federal election, the Bill still
retained some chance of being passed, at that time. Obviously the fate of the Bill
_____________________________________________________________________________________
30
Allars, above n 7, 231.
31
Submissions, Vol.2, No.41 216. See also Administrative Decisions (Effect of International
Instruments) Bill 1997, Explanatory Memorandum.
32
Gareth Evans and Michael Lavarch, 'International Treaties and the High Court Decision in
Teoh' Joint Statement by the Minister for Foreign Affairs and the Attorney-General, 10 May
1995.
33
Report of the Senate Legal and Constitutional Legislation Committee, Administrative
Decisions (Effect of International Instruments) 1995, tabled on 28 September 1995.
34
Downer, above n 6.
35
Report of the Senate Legal and Constitutional Legislation Committee, Administrative
Decisions (Effect of International Instruments) Bill 1997, tabled on 20 October 1997.
36
See Robert McClelland MHR, 'Labor calls for greater certainty in implementation of
international conventions', Press Release, 9 December 1999.
37
Senate Daily Bills Update, as at COB 9 August 2001, available at
<http://www.aph.gov.au/legis.htm> (21 August 2001).
2001
In the Wake of Teoh
225
____________________________________________________________________________________
depended heavily on the priority given to it in the Senate list for 2001, during a time
when it had been readily acknowledged that, 'there [we]re a lot of things … before the
Senate'.38 However, even if time had permitted, given the Australian Democrats'
opposition to the Bill, the Coalition may have been forced to accept the proposed
amendments of the Labor Party to ensure its successful passage.
Beyond the problem of time, Labor's approach, therefore represented the only
practical difficulty in respect of the legislation's passage. Yet, both the legislation and
the official positions of each of the political parties were founded on earlier
assessments. These assessments included, not only the anticipated impact of Teoh, but
also a growing perception that executive statements to the contrary were potentially
legally ineffective if issued well beyond the time of ratification and in regard to many
treaties (but particularly human rights treaties). Since that time, members of the
Federal Court have further elaborated on the Teoh principle, confirming the
Government's concerns over the two Executive Statements, but also identifying clear
guidelines for the making of valid executive directions or policies in specific contexts.39
RECENT DEVELOPMENTS IN THE FEDERAL COURT
Justifications for each of the proposed anti-Teoh Acts have centred on questions
associated with the effectiveness of the two executive statements issued in 1995 and
1997 respectively, which are purported to apply pending the enactment of anti-Teoh
legislation. Concern on this issue was largely generated by academic commentaries40
and by the judgment, in 1996, of Hill J in Department of Immigration and Ethnic Affairs v
Ram.41 In that case a decision of the Administrative Appeals Tribunal (AAT), in which
the 1995 executive statement was held to be ineffective,42 was appealed to the Federal
Court. Hill J made the following statements on that issue:
When, in Teoh, Mason CJ and Deane J refer to 'executive indications to the contrary', it
may well be that their Honours intended to refer to statements made at the time the
treaty was entered into, rather than to statements made years after the treaty came into
force.
When initially referring to executive comments, their Honours do so in the context of the
act of ratification, an act that speaks both to the other parties to the Convention and to the
people of Australia as well as to the world. I doubt their Honours contemplated a case
where at the time of ratification, Australia had expressed to the world and to its people
its intention to be bound by a treaty protecting the rights of children, but subsequently,
one or more Ministers made statements suggesting that they at least had decided
otherwise. 43
The correctness of Hill J's approach to the executive statement is certainly
questionable. Essentially, it involves a construction of the words of Mason CJ and
Deane J in Teoh that effectively leaves denunciation of a treaty as the only method of
_____________________________________________________________________________________
38
Williams, above n 23.
39
Tien v Minister for Immigration and Multicultural Affairs (1998) 53 ALD 32; Baldini v Minister
for Immigration and Multicultural Affairs [2000] FCA 173 (25 February 2000).
40
Allars, above n 7, 239-241; Katz, above n 7, 6-9; Piotrowicz (1997), above n 7, 503-506;
Walker, above n 7 242; Sheridan, above n 7, 130-131.
41
(1996) 69 FCR 431.
42
Re Yad Ram and Department of Immigration and Ethnic Affairs (1995) 22 AAR 372.
43
(1996) 69 FCR 431, 437-438.
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negating the legitimate expectation generated by ratification. The joint judgment in
Teoh made no reference to the timing of an executive statement to the contrary, though
an obvious implication is that the contrary statement be sufficiently clear to remove the
legitimate expectation. As Professor Allars observed in 1995, negating the effects of
Teoh would require a 'published, considered statement of policy … contrary to the
ratified convention'.44 While an 'implied inconsistency' would be unlikely to remove
the effects of Teoh, an 'express policy statement indicating departure from the relevant
convention in a particular area of public administration' would.45 Thus, in contrast to
the approach of Hill J, which concentrated on the timing of the executive statement, the
approach of Allars focused more on the level of generality of the statement in
questioning its effectiveness.
The issue again arose two years later in the case of Tien v Minister for Immigration
and Multicultural Affairs,46 though in this case, it was the second executive statement,
made on 25 February 1997, that was in issue. Justice Goldberg, in Tien's case,
considered that there was 'considerable force in the observations of Hill J'47 that the
references to 'executive indications to the contrary' in the judgment of Mason CJ and
Deane J in Teoh were 'intended to refer to statements made at the time the treaty was
entered into, rather than to statements made years after the treaty came into force'.48
However, with specific reference to the second 'executive indication to the contrary'
issued in 1997, Goldberg J in Tien made the following comments:
I do not consider that the Ministerial Statement made on 25 February 1997 is such an
'executive indication to the contrary' as to displace the application of the Teoh principle to
the circumstances before the Court. The executive indication to the contrary
contemplated by the judgment of Mason CJ and Deane J is one that a decision-maker or
decision-makers in particular circumstances will not act in accordance with a
Convention. The Ministerial Statement says nothing about the manner in which decisionmakers will go about their task in reaching a decision. Rather the Ministerial statement
appears to be an attempt (in my view unsuccessful) to reverse or overrule the principle
for which Teoh is authority. I do not consider that it is a "clear expression by the Executive
of a contrary indication". Put shortly, the Statement appears to be saying that Teoh is not
the law. However, Teoh is a principle to be observed by decision-makers unless and until
the Parliament or the Executive tells decision-makers not to act in accordance with
treaties; or until the Parliament legislatively overrules Teoh. In order for a Ministerial
Statement to constitute an executive indication to the contrary (as referred to by Mason
CJ and Deane J in Teoh) it would be necessary for the statement to say something to the
effect that decision-makers will not act, or are directed not to act, in accordance with
particular provisions or particular Conventions or treaties.49
What is interesting about this decision is that, although support is expressed in
relation to the earlier judgment of Hill J in Department of Immigration and Ethnic Affairs v
Ram, the decision more accurately reflects the approach to effectiveness adopted by
Allars. This point is evidenced by Goldberg J's reference to a need for specific mention
of particular treaty provisions in the executive statement. However, the degree of
detail required was not entirely outlined by Goldberg J. Nor was any reference made
_____________________________________________________________________________________
44
Allars, above n 7, 233.
45
Ibid.
46
(1998) 53 ALD 32.
47
(1998) 53 ALD 32, 54.
48
(1996) 69 FCR 431, 437-438.
49
(1998) 53 ALD 32, 56.
2001
In the Wake of Teoh
227
____________________________________________________________________________________
to a requirement that the administrative context in which the legitimate expectation
was to be modified or removed, be stated. The actual requirements necessary for an
executive statement to effectively negate the decision in Teoh were still, therefore,
unclear.
The most significant recent case pertaining to the principle enunciated in Teoh,
however, is the case of Baldini v Minister for Immigration and Multicultural Affairs.50 The
applicant, Eduardo Baldini, sought to have the decision to affirm his deportation
(ordered by a decision of the AAT) overturned by the Federal Court. Baldini had been
convicted of armed robbery (upon which the decision to deport him was based) as well
as numerous other offences. The principal ground of appeal was that the Tribunal had
erred in holding that only one of Baldini's three children need be considered for the
purposes of the decision.
Directly relevant to this issue was a Ministerial Direction issued on 21 December
1998, under s 499 of the Migration Act 1958 (Cth) (General Direction No 9, otherwise
referred to as 'Australia's Criminal Deportation Policy'). The direction specified in a
detailed manner how a decision-maker (in this case, the AAT) should handle a
decision in which a child would be affected by a decision to deport. Unlike the
Convention on the Rights of the Child (CROC), which requires that, in all matters
affecting children, the best interests of the child must be a primary consideration, the
Ministerial Direction was worded in more specific terms. Only cases 'involving a
parental relationship between a child or children' of the deportee required 'the best
interests of the child or children' to be considered.51 Drummond J considered the term
'parental relationship' was wide enough to encompass adoptive parents and persons in
loco parentis to children, but the relationship could not be established by tenuous links
between the child and the potential deportee.52 According to Drummond J, 'if the
connection between a child and the potential deportee is so tenuous that it cannot be
described as a parental (or similar) relationship, then the Direction casts no obligation
on the Tribunal to consider the impact on the child of deportation of the adult'.53
It was on the basis of the specific and detailed guidelines contained in the Direction,
that the Court held it constituted a successful attempt by the Legislature and the
Executive to overcome the difficulties associated with Ministerial statements aimed at
overriding Teoh – the same difficulties identified in the case of Tien v Minister for
Immigration and Multicultural Affairs.54 In the opinion of Drummond J, the Direction
contained such an elaborate regime with which the AAT must comply in cases
involving consideration of the interests of a potential deportee's child, that the Teoh
legitimate expectation could not apply.55 Justice Drummond provided the following
reasoning:
In my opinion, paras 5 and 6 and 16 to 20 of the Direction contain such an elaborate
regime with which the Tribunal must, by force of s 499 of the Act, comply in a case in
which it is required to consider the interests of a potential deportee's child that there is no
room for finding in Australia's ratification of the Convention a basis for any legitimate
_____________________________________________________________________________________
50
[2000] FCA 173 (25 February 2000).
51
Ibid [13].
52
Ibid.
53
Ibid.
54
(1998) 53 ALD 32, 56.
55
[2000] FCA 173 (25 February 2000) [30].
228
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expectation on the part of a potential deportee that the interests of his child will be, in
terms of the Convention, 'a primary consideration'.56
In other words, the Direction had effectively displaced the legitimate expectation
through the use of a detailed and specific 'executive indication to the contrary',57 and
the point of reference for the AAT was the Ministerial Direction rather than the CROC.
The Federal Court considered that the Direction had been complied with, and the
appeal was accordingly dismissed.
While the decision in Tien was obviously concerned with the generality of the
second Ministerial Statement and its ineffectiveness in displacing the Teoh principle, a
clear judicial pronouncement of what would constitute an effective 'indication to the
contrary' was not provided until the decision in Baldini. From that case it is now clear
that unambiguous, detailed and specific ministerial guidelines may displace the Teoh
principle, and General Direction No 9 provides a clear example for future reference to
government departments and agencies.
THE NEED TO RE-CONSIDER ANTI-TEOH LEGISLATION
In light of the legal developments stemming from the decisions of the Federal Court,
the traditional opposition of federal governments to the Teoh principle should be
reconsidered, and there are political as well as legal reasons for adopting an alternative
solution to the perceived problems associated with Teoh. The justifications for and
perceived necessity of the current anti-Teoh Bill are predicated on an evaluation of
Teoh's impact conducted prior to cases such as Tien and Baldini. In many respects, the
purported need for legislation to override Teoh rested on the legal uncertainty
surrounding the executive statements, and doubts over the capacity of governments
effectively to construct a statement that would displace the legal obligations associated
with treaty ratification. These doubts were clearly heightened by the fact that
legitimate expectations were more likely to arise in respect of human rights
conventions – conventions that, in some cases, Australia had ratified up to decades
prior to the decision in Teoh and, thus, any 'executive statement' issued following that
case.
Notwithstanding the obvious problems associated with a Bill drafted prior to the
recent legal developments, proposed anti-Teoh legislation has always contained a
number of significant problems in itself. Inadequacies pertaining to its drafting,
coupled with the anomalies associated with an inconsistent approach by governments
to the treaty process itself, have always meant that anti-Teoh legislation is as likely to
create as many problems as it would purportedly solve. At the heart of this problem
rests the inconsistent approach of federal governments to executive accountability and
the treaty process.
_____________________________________________________________________________________
56
Ibid.
57
To employ the words of Mason CJ and Deane J in Teoh. See also, Hui v Minister for
Immigration and Multicultural Affairs [1999] FCA 985, (21 July 1999) [9], (Carr J).
2001
In the Wake of Teoh
229
____________________________________________________________________________________
EXECUTIVE ACCOUNTABILITY AND THE POWER TO MAKE AND
IMPLEMENT TREATIES
Throughout the past two decades, the power to make and implement treaties has been
surrounded by political and legal controversy. Yet, while the principal issue
throughout the 1980s was the impact of the power upon the 'federal balance' and socalled 'states' rights', in the 1990s the focus shifted markedly toward issues of executive
accountability.58 This shift reflected the High Court's consistently broad construction
of the external affairs power,59 the prevailing belief that constitutional amendment was
unlikely,60 the formalisation of a consultative framework between the Commonwealth
and the States in the treaty-making process,61 and a growing realisation of the
relevance and impact of international law upon domestic law and practice as
evidenced in Toonen62 in 1994 and Teoh the year after.
In the wake of these decisions, a legal and political debate emerged in relation to
the domestic accountability of the executive in respect of treaties. In response, the
Federal Government took statutory measures in the form of its Administrative
Decisions (Effect of International Instruments) Bills of 1997 and 1999, and implemented
non-statutory reforms to the treaty-making process.63 On these initiatives, two
comments can be made. Firstly, they reflect a continued commitment of successive
governments to avoiding the implementation of measures directed at making the
Executive legally accountable to the Parliament and the people. Secondly, the
particular initiatives of 1996, coupled with anti-Teoh measures, are logically
inconsistent, and would only serve to create further controversy surrounding the
treaty process.
The particular problems associated with executive accountability in regard to the
treaty process, stem, fundamentally, from the separation of the power to enter into
_____________________________________________________________________________________
58
Cheryl Saunders, 'Articles of Faith or Lucky Breaks? The Constitutional Law of
International Agreements in Australia' (1995) 17 Sydney Law Review 150, 152.
59
Koowarta v Bjelke-Petersen (1982) 153 CLR 168; Commonwealth v Tasmania (1983) 158 CLR 1;
Richardson v Forestry Commission of Tasmania (1988) 164 CLR 261; Queensland v
Commonwealth (1989) 167 CLR 232; Polyukhovich v Commonwealth (1991) 172 CLR 501; Horta
v Commonwealth (1994) 181 CLR 183.
60
Australian Constitutional Convention, Proceedings, Adelaide (1983) and Brisbane (1985);
Constitutional Commission (1984) Final Report Vol II (1985); Trick or Treaty? Commonwealth
Power to Make and Implement Treaties, Report by the Senate Legal and Constitutional
References Committee, November 1985, 85.
61
This framework was established under the principles and procedures for CommonwealthState Consultation on Treaties, January 1, 1992. This framework was amended as part of the
Federal Government's reforms to the treaty process in 1996, which included the
establishment of a Treaties Council as an adjunct to the Council of Australian Governments
(COAG): see Commonwealth, Parliamentary Debates, House of Representatives, 2 May 1996,
233. The former Principles and Procedures have been replaced by a revised framework
under the Principles and Procedures for Commonwealth-State Consultation on Treaties
(1997) 8 Public Law Review 116-120.
62
Nicholas Toonen v Australia, Communication No. 488/1992: Australia. 04/04/94.
CCPR/C/50/D/488/1992.
63
Announced in a Ministerial Statement by the Minister for Foreign Affairs, the Hon.
Alexander Downer MHR, Commonwealth, Parliamentary Debates, House of
Representatives, , May 2 1996, 231-235.
230
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treaties from the power to implement treaties under the Australian Constitution.64 The
constitutional arrangement allows the Executive to enter into treaties (through the acts
of signature and ratification, or accession), however, the domestic application of
treaties is dependent on the Commonwealth Parliament implementing the provisions
of a treaty through the enactment of legislation. This position corresponds with the
accepted position in law that treaties are not directly incorporated into Australian law
by the act of ratification or accession, but only by the enactment of incorporating
legislation by the Parliament.65
This arrangement contains two inherent problems specifically associated with
issues of executive accountability, one of which, however, has been largely addressed
by the 1996 reforms to the treaty process. Their existence is a consequence of the fact
that the constitutional framework for the making and implementation of treaties is
governed by provisions drafted for a nation which lacked control over its own external
affairs, and which 'took their present form through evolution and circumstance, rather
than design'.66 Firstly, the Executive, in exercising its prerogative power to enter a
treaty, thereby committing Australia to obligations under international law, was
completely unaccountable (prior to 1996) to either the Parliament or the public.
Secondly, in the absence of incorporating legislation, the constitutional arrangement
provides no mechanisms for ensuring the domestic accountability of the Executive in
respect of the obligations it accepts, thereby committing Australia to observe, under
international law.67
The Toonen case in 1994 was pivotal in the debate that emerged in the mid-1990s
concerning the treaty process. The case itself was the most widely discussed issue
among several which formed the backdrop against which a reference was made to the
Senate Legal and Constitutional References Committee on 8 December, 1994.68
Charged with inquiring into the Commonwealth's powers with respect to treaties, the
Committee's report was tabled in Parliament on 29 November 1995.69 Among its
recommendations, the Committee proposed that legislation be enacted to replace the
Commonwealth-State Standing Committee on Treaties with a Treaties Council
(Recommendation 7), that treaties be tabled at least 15 sitting days prior to Australia
entering a treaty (Recommendation 8), that a Joint Parliamentary Committee on
Treaties with broad powers of inquiry be established (Recommendation 9), and that
treaty impact statements be prepared on each treaty (Recommendation 10). While
many of the Committee's recommendations were implemented under the reforms
_____________________________________________________________________________________
64
The power to enter into treaties is a prerogative power of the Executive Council pursuant
to section 61 of the Constitution: Barton v Commonwealth (1974-5) 131 CLR 477. The power
to implement treaties is exercisable by the Commonwealth Parliament, falling within the
more widely defined power of the Parliament to legislate with respect to 'external affairs'
under section 51(xxxix) of the Constitution.
65
Teoh (1995) 183 CLR 273; Dietrich v The Queen (1992) 177 CLR 292, 305; Koowarta v BjelkePetersen (1982) 153 CLR 168, 192-193, 211-212, 225, 253; New South Wales v Commonwealth
(1975) 135 CLR 337.
66
Saunders, above n 58, 174.
67
Ibid, 174-175.
68
See Anne Twomey, 'Treaty Making and Implementation in Australia' (1996) 7 Public Law
Review 4.
69
Trick or Treaty? Commonwealth Power to Make and Implement Treaties, Report by the Senate
Legal and Constitutional References Committee, November 1995.
2001
In the Wake of Teoh
231
____________________________________________________________________________________
announced on May 1996, the procedural changes effected were not carried out under a
legislative framework as suggested in the Report. Thus, while the 1996 reforms
represent a very positive step in improving accountability in treaty-making, they
evidence a continued commitment by successive governments to reject any regulatory
framework established by legislation, under which the Executive would be legally
accountable to the Parliament.
THE INCONSISTENT APPROACH OF GOVERNMENT TO THE TREATY
PROCESS
At the same time that the Federal Government has rationalised reforms to the treatymaking process on the basis of the increasing importance and influence of treaties
upon domestic law, through anti-Teoh measures it has also resisted legal developments
that would provide a small degree of domestic accountability to the assumption of
obligations under international law. It is submitted that the reforms to the treaty
process, in providing a framework for parliamentary review of treaties prior to
ratification, is logically consistent with the notion that ratification gives rise to a
legitimate expectation that the Executive will act in accordance with the treaty. Further,
it provides a stronger basis upon which it may be assumed that Parliament prima facie
intends to give domestic effect to the treaty.70
Reliance upon the argument that treaties have no domestic legal effect unless
incorporated through the enactment of domestic legislation by Parliament, cannot
logically provide a comprehensive justification for denying the creation of a legitimate
expectation in respect of a treaty ratified by the Executive upon the recommendation
and approval of the Joint Standing Committee on Treaties (JSCOT). Though, under the
new framework for parliamentary scrutiny of treaties, the Executive is not obliged to
seek the consent of Parliament, and the Parliament does not vote on whether Australia
should ratify a particular treaty, JSCOT makes recommendations on whether the
Executive should proceed with ratification, and members of both Houses have the
opportunity to initiate debate on a particular treaty (given the new procedure of
tabling treaties at least 15 sitting days prior to the Executive taking binding action on
the part of Australia). This new system for the regulation and scrutiny of the
Executive's power to enter into treaties provides a framework in which the Executive is
politically accountable to the Parliament, and where there exists greater transparency
and openness in treaty-making.
In seeking to regulate the prerogative power of the Executive to enter into treaties
by allowing the Parliament to scrutinise treaties prior to ratification, the Government's
reforms involve practical changes to the strict separation of powers of the Executive
and the Parliament in respect of treaties. They represent what Professor Shearer has
described as the 'intermediate position', in which parliamentary scrutiny of treaties
prior to ratification involves 'the superintendence of executive action in respect of
treaties', which is to be contrasted with the position in the United States where
executive action is subject to the 'requirement of advice and consent by the
_____________________________________________________________________________________
70
232
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____________________________________________________________________________________
legislature'.71 It is submitted that a corollary of the treaty reforms must inevitably be a
greater level of legitimacy attached to the act of ratification itself, and subsequently,
added support for the principle established in Teoh that legitimate expectations will
arise as a consequence of ratification. This argument rests on the assumption that the
act of ratification and the practical and legal consequences which flow from it are
logically connected.72
While the Teoh decision is significant to the extent that it gives treaties a legal effect
in domestic law not previously assumed, it does not confer upon the provisions of a
treaty the status of legally enforceable rights and obligations in domestic law. Such an
effect would be contrary to accepted legal principles arising from the separation of
powers within Australia. The extension of the legitimate expectation doctrine to the
ratification of treaties by the High Court in Teoh does not involve incorporating the
provisions of a treaty indirectly, thereby conferring substantive protection of various
human rights in domestic law.73 It simply confers a procedural right which cannot
compel a decision-maker to reach a particular substantive outcome.74
Notwithstanding this fact, considering the extent to which the Teoh decision gave
unincorporated treaties a domestic legal effect previously not acknowledged, or even
contemplated,75 the decision is controversial. However, the controversial nature of the
decision is obviated to the extent that Teoh is entirely compatible with an intermediate
position on parliamentary involvement in the treaty process, encompassed within the
1996 reforms.76 It is submitted that a logical consequence of an intermediate position
on parliamentary involvement, is a greater level of legitimacy attached to the
Executive's act of ratification, upon which it is easier to argue that legitimate
expectations will arise.
While the reforms to the treaty process announced in May 1996 have acknowledged
both the need and a desire of the Australian community for the Executive to be more
accountable to the Parliament and the people in exercising its powers to enter into
treaties, the attempted introduction of anti-Teoh legislation signals a commitment to
avoiding the domestic accountability of the Executive in giving effect to the treaty
obligations it assumes under international law.77 As Ivan Shearer has noted, the
Government's position is such that, 'when the Australian Government ratifies a treaty
_____________________________________________________________________________________
71
Ivan Shearer, 'The Growing Impact of International Law on Australian Domestic Law:
Implications for the Procedures of Ratification and Parliamentary Scrutiny' (1995) 69
Australian Law Journal 404-407, 406-407.
72
Saunders, writing in 1995 (and, thus, prior to the 1996 reforms), stated, '[m]ost notably,
none of the proposals for a greater degree of parliamentary involvement in treaty-making
refer to the direct incorporation of the treaties thus approved, which is a logical although
not inevitable concomitant': Saunders, above n 58, 175.
73
Teoh (1995) 183 CLR 273, 290-291 (Mason CJ and Deane J); Attorney-General (NSW) v Quin
(1990) 176 CLR 1; see also Allars, above n 7, 231.
74
Allars, ibid.
75
See Sir Anthony Mason, 'The Influence of International and Transnational Law on
Australian Municipal Law' (1996) 7 Public Law Review 20, 21-22.
76
See the statements of Senator Helen Coonan, Joint Standing Committee on Treaties Report
(JSCOT), Commonwealth, Parliamentary Debates, Senate, 30 August 1999, 7932-7933.
77
As Twomey has observed, '[t]he question, ultimately, is whether the Executive commits
itself when ratifying a treaty, or whether it commits Australia but excludes itself from any
obligation to comply with the treaty?', in Twomey, above n 7, 353-354.
2001
In the Wake of Teoh
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and undertakes important and binding obligations…it is speaking only to the world
outside Australia and not to its own people also'.78 At the same time that the
Government has implemented reforms which are both compatible with, and give
support to, the principles underlying the decision of the majority in Teoh,79 attempts
have been made to expressly overturn that judgment. That there exists an
inconsistency in the official government position is likely to result in the need for
further consideration of the question of domestic accountability of the Executive
specifically arising out of the act of ratification.
CONSEQUENCES ASSOCIATED WITH THE ENACTMENT OF ANTITEOH LEGISLATION
It remains to be seen how long the Executive can avoid domestic legal consequences
arising out of its ratification of treaties, relying upon the artificial concept that
ratification is only a statement to the international community to observe the treaty
measures in question.80 The argument made by successive governments, that
ratification only entails the making of a statement to the international community, is
particularly artificial when considered in relation to the ratification of human rights
treaties. Those treaties provide the best illustration of the fact that if ratification is not a
statement to the people of Australia that the Government intends to observe the
obligations contained therein, the act of ratification is substantially meaningless. To
borrow from Mason CJ and Deane J, it becomes a 'platitudinous and ineffectual act'.81
It was noted in 1995 that, as well as highlighting the significance of international
law within the domestic legal context, recent decisions of the High Court had also
exposed 'both the fragility and inadequacy of the existing policy and legislative
framework for dealing with international standards'.82 The same observation could
certainly be extended to the Administrative Decisions (Effect of International
Instruments) Bill 1999. Whilst the Bill, if enacted, would have certainly constituted a
valid Act of the Commonwealth, its adequacy and necessity were not beyond doubt
when one considered the likelihood of the Bill achieving its intended effect, as the
discussion below illustrates. In addition, by leaving Australia open to criticism at the
international level — already a reality with the concluding observations of the United
Nations Human Rights Committee that the proposed Act would constitute a breach of
Australia's international obligations — the proposed legislation will only have served
to create further political and legal controversy. It is likely that the proposed Act
would also have been exposed at the domestic level for relying on an artificial concept
_____________________________________________________________________________________
78
Ivan Shearer, 'The Relationship Between International Law and Domestic Law', in Brian
Opeskin and Don Rothwell (eds), International Law and Australian Federalism (1997) 34, 59.
79
This compatibility was in fact acknowledged by the current Attorney-General, Daryl
Williams in 'Australia's Treaty-Making Processes: The Coalition's Reform Proposals', in
Phillip Alston and M Chiam (eds), Treaty-Making and Australia: Globalisation Versus
Sovereignty? (1995) 194.
80
Gareth Evans, 'The Impact of Internationalisation on Australian Law: A Commentary', The
Mason Court and Beyond, Seminar, University of Melbourne, September 10, 1995 (copy on
file with the author).
81
Teoh (1995) 183 CLR 273, 291.
82
Phillip Alston, 'Reform of Treaty-Making Processes: Form Over Substance', in Alston and
Chiam (eds), n 66, 1.
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of executive accountability in relation to treaties which can no longer be maintained.83
Notwithstanding this fact, the Commonwealth Parliament clearly has the
constitutional power to negate the procedural right developed by the majority in Teoh
based on the legitimate expectation doctrine.84
Failure to Negate Possible Common Law Remedies
The third of the anti-Teoh Bills would not have excluded several significant common
law mechanisms which could have been used to achieve Teoh-like effects. Clause 7 of
that Bill provided that, '[t]o avoid doubt, section 5 does not affect any other operation
or effect, or use that may be made, of an international instrument in Australian law'.
That the Bill did not exclude these mechanisms was acknowledged in submissions to
the Senate Legal and Constitutional Legislation Committee in 1997.85 Mr Bill
Campbell, submitting on behalf of the Commonwealth Attorney-General's Department
to the Committee, stated that the Bill's purpose was, 'not to anticipate all future
development of the common law by the courts in relation to the relevance of treaties in
administrative decision making. The Bill is squarely directed towards setting aside the
legitimate expectation in administrative law arising out of treaties referred to by the
High Court in Teoh's case'.86 However, the significance of these legal mechanisms not
excluded, should not be underestimated. As Margaret Allars stated, '…although it may
not happen immediately there is every potential for the effect of Teoh's case to be
achieved by the courts without reliance on the legitimate expectation which the Bill
seeks to destroy'.87
One particular use of treaties which is likely to assume a more prominent role in the
future, is where individuals raise the provisions of an instrument as a relevant issue in
administrative decision-making. Professor McMillan has argued that in such a case a
decision-maker is obliged to give realistic and genuine consideration of the matter
which goes to the merits of a person's case.88 The significance of the unincorporated
_____________________________________________________________________________________
83
On this point see the preceding discussion, regarding an 'intermediate position', following
the 1996 reforms, at 20-22.
84
Parliament has the power to prescribe the rules of Commonwealth administrative law:
section 51 (xxxix) and implied incidental powers; George Winterton 'Limits to the Use of
the “Treaty Power”' in Alston and Chiam (eds), above n 79, 35. It may also be that
Parliament has the power to negate the effect of Teoh based on the corollary of the power to
implement treaties (ie the power to provide that a treaty will have no domestic legal effect):
ibid.
85
See Submissions to the Senate legal and Constitutional Legislation Committee: Administrative
Decisions (Effect of International Instruments) Bill 1997 ('Submissions'), in particular Margaret
Allars, Submission No.40, Vol.2, and John McMillan, Submission No.36, Vol.2.
86
Submissions, Bill Campbell, Submission No.41, Vol.2, 216.
87
Submissions, Margaret Allars, Submission No.40, Vol.2, 206.
88
Submissions, John McMillan, Submission No.36, Vol.2, 177. That realistic and genuine
consideration must be given to the merits of a case is supported by a long list of authority:
Kahn v Minister for Immigration and Ethnic Affairs (1987) 14 ALD 291, 292 (Gummow J); Hindi
v Minister for Immigration and Ethnic Affairs (1988) 91 ALR 586, 597; Broussard v Minister for
Immigration and Ethnic Affairs (1989) 21 FCR 472, 483 (Gummow J); Surinakova v Minister for
Immigration, Local Government and Ethnic Affairs (1991) 33 FCR 87, 96 (Hill J); Mocan v
Refugee Review Tribunal (1996) 42 ALD 24, 245 (Merkel J); Anthonypillai v Minister for
Immigration and Multicultural Affairs [2000] FCA 1368, (27 September 2000) [17] (Merkel J);
2001
In the Wake of Teoh
235
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convention in this case is significant, as it pertains more to the substance of a decision,
as distinct from the legitimate expectation which concentrates on the form of decisionmaking.89
There are certainly strong grounds for asserting that, where a person refers to an
international instrument, there arises an independent obligation to take the instrument
into account on the part of the decision-maker.90 The human rights embodied in
international instruments may also become relevant to the exercise of an
administrative discretion, on the basis of Gaudron J's approach in Teoh.91 For Gaudron
J, such instruments were relevant to the extent that they may reflect or mirror rights
already protected in Australian common law.92 However, while a decision-maker may
be bound to consider submissions made by a party who could be adversely affected by
a decision, the weight to be attached to the issues raised would fall to be determined
by the decision-maker.93
Additionally, the inclusion of Clause 7 in the Bill did not inhibit a court in any way
from developing common law rights through the legitimate use of unincorporated
conventions, or from construing statutes consistently with a convention where
ambiguity arises. Nor did it prevent the indirect use of unincorporated conventions
through reliance on two alternative doctrines of administrative law. Clause 5 of the
proposed Act only prevented the creation of legitimate expectations arising out of the
fact of ratification. It, therefore, did not prevent a legitimate expectation from arising
out of a published, considered statement of government policy. Based on the decision
in Haoucher v Minister for Immigration and Ethnic Affairs,94 such policies generate
legitimate expectations, thereby granting an individual a common law entitlement to a
hearing on departure from the policy. As Margaret Allars stated in submissions to the
Senate Committee in 1997:Thus, a policy of the government (even in the form of a media release regarding its
compliance with international human rights norms), may generate a legitimate
expectation. This legitimate expectation will not be destroyed by clause 5, which is
concerned only with legitimate expectations generated by the fact of being bound by an
international instrument or reproduction of the instrument in a statute.95
As the above discussion highlights, the effectiveness of the proposed Act in removing
alternative common law remedies was certainly not beyond question.
Application to Treaties Ratified Since 1996
That the proposed Act may not have applied to treaties ratified after the
implementation of the 1996 reforms was not an issue addressed to any significant
extent in submissions to the Senate Committee in 1997. However, it is a very real
probability given the specific wording of Clause 5 of the Bill (the operative clause of
the proposed legislation). If that clause had been narrowly interpreted to prevent
_____________________________________________________________________________________
Tedella v Minister for Immigration and Multicultural Affairs [2000] FCA 1643 (11 October 2000);
Ly v Minister for Immigration and Multicultural Affairs [2000] FCA 15 (12 January 2000).
89
Submissions, John McMillan, Submission No.36, Vol.2, 177.
90
Ibid.
91
Teoh (1995) 183 CLR 273, 304-305.
92
Ibid.
93
Minister for Aboriginal Affairs v Peko-Wallsend (1986) 162 CLR 24, 41 (Mason J).
94
(1990) 169 CLR 648.
95
Submissions, Allars, Submission No.40, Vol.2, 207.
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legitimate expectations from arising out of the act of ratification alone, treaties adopted
under the new parliamentary procedures could potentially have been excluded from
its ambit. This claim rests on the fact that the level of scrutiny and consideration now
carried out prior to ratification offers a stronger basis for the generation of a legitimate
expectation. Clause 5 provided as follows:The fact that:
(a) Australia is bound by, or a party to, a particular international instrument; or
(b) An enactment reproduces or refers to a particular international instrument;
does not give rise to a legitimate expectation of a kind that might provide a basis at law
for invalidating or in any way changing the effect of an administrative decision.
Concern was expressed in submissions to the Senate Committee about the use of
the words 'the fact that…Australia is bound by, or a party to, a particular international
instrument'.96 As Allars pointed out, it is the conduct of the Executive in ratifying a
treaty which generates a legitimate expectation, not the fact of the existence of binding
international obligations.97 Although it was suggested that the word 'mere' be placed
before the word 'fact',98 this was rejected by the Attorney-General's Department. The
reasoning behind this rejection was based on the assumption that, '…it would be an
invitation to courts and tribunals to find other factors, in combination with the entry
into a treaty, which would give rise to legitimate expectations'.99 However, it is
submitted that the wording of Clause 5 would still have permitted such an
interpretation by a court or tribunal.
Clause 5, in seeking to prevent the arising of a procedural right recognised by the
common law, was subject to the rule as stated by the High Court in Wentworth v NSW
Bar Association100 and Bropho v Western Australia.101 Justices Deane, Dawson, Toohey
and Gaudron stated the rule in Wentworth v NSW Bar Association as follows:
There are certain matters in relation to which legislative provisions will be construed as
effecting no more than is strictly required by clear words or as a matter of necessary
implication. They include important common law rights, procedural and other
safeguards of individual rights and freedoms and the jurisdiction of superior courts.102
It certainly remained open to a court to interpret the phrase, '[t]he fact
that…Australia is bound by, or a party to, an international instrument', contained in
Clause 5, as meaning that fact alone. On such an interpretation other factors (including
conduct of the Executive or Parliament) combined with the final act of ratification, may
have provided instances where ratification of the treaty would still have given rise to a
legitimate expectation in the Teoh sense. Such instances could certainly have included
the ratification of treaties under the new parliamentary procedures.
Thus, treaties which have been ratified by the Executive following the detailed
scrutiny involved under the new parliamentary procedures (and which includes
consideration and analysis of domestic implementation issues), could have been
_____________________________________________________________________________________
96
Ibid, 205.
97
Ibid.
98
See Submissions, New South Wales Bar Association, Submission No.24, Vol.1, 103.
99
Submissions, Bill Campbell, Submission No.41, Vol.2, 214.
100 (1992) 176 CLR 239, 252; see also Katz, above n 7, 10.
101 (1990) 171 CLR 1 at 17-18; see also Katz, above n 7, 10.
102 (1992) 176 CLR 239, 252.
2001
In the Wake of Teoh
237
____________________________________________________________________________________
excluded from the operation of Clause 5. The decision to ratify following that process,
as well as the conduct of the Executive throughout that process, must surely contribute
something towards strengthening the basis upon which an expectation of a future right
may arise.
In the event that the clause had been interpreted in such a manner, following the
decision in Baldini, the executive statements would also have not applied. Therefore,
unless an executive indication to the contrary was issued consistent with the decision
in Baldini, any treaty entered into by Australia since the implementation of the 1996
reforms may still have created legitimate expectations pursuant to the decision in Teoh.
Application to Treaties Scheduled to the HREOC ACT
An additional problem relating to the proposed Act's effectiveness concerned its
applicability to international conventions scheduled to, or made the subject of, a
Declaration under the Human Rights and Equal Opportunity Act 1986 (Cth) (HREOC
Act). Indeed one of the key political and legal motivations for the 1997 Bill's
introduction related to the effect of those instruments in domestic law based on the
legitimate expectation doctrine articulated in Teoh.103 The High Court considered, in
Dietrich v The Queen,104 that the conventions scheduled to the HREOC Act could not be
construed as having been incorporated into domestic law. Though, pursuant to s 11 of
the HREOC Act, the Commission may investigate alleged breaches of any human right
contained in instruments scheduled to the Act. A number of cases decided since the
decision in Dietrich have, however, raised questions regarding the High Court's
approach to the legal status of instruments scheduled to the HREOC Act.
In the case of Minister for Foreign Affairs v Magno, Einfield J made the following
comments:
[T]he statutory approval or scheduling of treaties is not to be ignored as merely
platitudinous or ineffectual, but must be given a meaning in terms of the parliamentary
will. Thus when the Australian Parliament endorses and acknowledges a treaty by
legislation, there being no contrary statutory or clearly applicable common law provision
in relation to the matters contained in the treaty, it approves or validates the treaty as
part of the law which ought as far as possible to be applicable to and enforceable on or by
Australians and others in the country to which it is available.105
In Marriage of Murray and Tam,106 Nicholson CJ and Fogarty J considered that the status
of the conventions and declarations scheduled to, or declared under, the HREOC Act,
was still an open issue. In Teoh, Toohey J noted the comments by Nicholson CJ, but
stated the matter did not arise in that case.107 While Mason CJ and Deane and Gaudron
JJ did not refer to the matter, McHugh J expressly rejected the view of Nicholson CJ.108
Therefore, until the issue is authoritatively decided by the High Court, the issue
remains somewhat unclear, despite the clear position taken in Dietrich on the matter.
_____________________________________________________________________________________
103 See for example, the Attorney-General's comments made during the Bill's second reading
speech: House of Representatives, Parliamentary Debates, June 25 1997, 6308.
104 (1992) 177 CLR 292, 305-306.
105 (1992) 37 FCR 298, 343.
106 (1993) 16 Fam LR 982, 998.
107 (1995) 183 CLR 273, 301.
108 Ibid, 317 (McHugh J).
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Nevertheless, two comments can be made on the issue. Firstly, it is highly unlikely
that the High Court will reject its earlier position in Dietrich and decide that
instruments scheduled to or reproduced in the HREOC Act are now to be considered as
having been incorporated into domestic law. However, it is certainly not as clear
whether the Court would not consider those conventions to have been accorded a
higher status in domestic law over other unincorporated conventions. The likelihood
of this has already been foreshadowed in the Family Court in the case of B v B.109
There, Nicholson CJ and Fogarty and Lindenmayer JJ considered the scheduling of a
convention to the HREOC Act 'may give it a special significance in Australian law'.110
The proposed legislation, in particular through Clause 5(b), actually acknowledged
this likelihood. It prevented the creation of a legitimate expectation arising from an
unincorporated convention even where 'an enactment reproduces or refers to an
international instrument'. Indeed, this clause went beyond merely negating the effect
of the decision in Teoh, and was directed specifically at what must have been perceived
as the potential for a court to distinguish the conventions scheduled to or declared
under the HREOC Act, had they not been expressly included within the ambit of the
Bill. While Clause 5(b) would certainly have prevented those conventions from
generating a legitimate expectation, there still remained the potential for a court to
achieve Teoh-like effects in relation to those conventions. If it were accepted that these
instruments had been accorded a higher status in domestic law than other
unincorporated conventions, a court may be more inclined to invoke the use of
procedural fairness, without having to employ the terminology of legitimate
expectation, in respect of administrative decisions. The proposed legislation would
have been completely ineffectual in such a case, though the Parliament would have
undoubtedly been free to negate such a decision.
Compliance with Australia's International Legal Obligations
The remaining problem associated with proposed anti-Teoh legislation is its
inconsistency with Australia's international legal obligations. Apart from its reporting
obligations under several human rights instruments, Australia is also a party to three
human rights conventions (and the International Labour Organisation conventions),
which permit individuals to take complaints of alleged breaches to international
committees. The procedural provisions providing international avenues for
individuals include the First Optional Protocol of the International Covenant on Civil and
Political Rights (ICCPR), Article 14 of the Convention on the Elimination of All Forms of
Racial Discrimination, and Article 22 of the Convention Against Torture. The principal
instrument in respect of the proposed legislation is the First Optional Protocol to the
ICCPR which, apart from its scheduling to the HREOC Act, has not been incorporated
into domestic law. Article 2(2) of the ICCPR provides as follows:[E]ach State party to the present Covenant undertakes to take the necessary steps, in
accordance with its constitutional processes…to adopt such legislative or other measures
as may be necessary to give effect to the rights recognised in the present Covenant.
The United Nations Human Rights Committee has expressly recognised that the
implementation of the legal obligations under the Covenant does not depend solely on
_____________________________________________________________________________________
109 (1997) FLC 92 – 755, [10.20].
110 Ibid. This view finds additional support in the judgment of Millhouse J in Collins v South
Australia [1999] SASC 257 (25 June 1999) [31-36].
2001
In the Wake of Teoh
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constitutional or legislative amendments.111 However, it is important that individuals
know what their rights are under the Covenant and 'that all administrative and judicial
authorities should be aware of the obligations which the state party has assumed
under the Covenant'.112
Given that Australia's compliance with its international legal obligations requires
the application of relevant treaties to administrative matters and administrative
decision-making, it is not surprising that the 1999 Bill has already been considered to
constitute a likely breach of these obligations, if enacted.113 On this matter, the Human
Rights Committee made the following statement:
The Committee is concerned by the government bill in which it would be stated, contrary
to a judicial decision, that ratification of human rights treaties does not create legitimate
expectations that government officials will use their discretion in a manner that is
consistent with those treaties.
The Committee considers that enactment of such a bill would be incompatible with the
State party's obligations under article 2 of the Covenant and urges the government to
withdraw the bill.114
It is also probable that any anti-Teoh Bill's enactment would be followed with
individual complaints to the United Nations Human Rights Committee or other
international tribunals, and the general criticism of the international community.115
Such international effects are certain adversely to affect Australia's international
reputation in human rights matters. However, given the continued reluctance on
Australia's part to implement the provisions of human rights conventions effectively
and fully through domestic legislation, it had been observed that, if enacted, the Bill
would have damaged our international reputation, 'to the extent that it [would have
become] finally more consistent with our national performance'.116
CONCLUSION
The Administrative Decisions (Effect of International Instruments) Bill 1999 represents
the latest attempt formally to override the High Court decision in Teoh. However, both
its basis and provisions reflect earlier drafts constructed in the aftermath of the 1995
decision. In addition to containing several inherent flaws which were likely to impact
on the proposed Act's effectiveness, the Bill failed to take into account recent
developments at both the domestic and international levels which needed to be
_____________________________________________________________________________________
111 General Comment 3, United Nations Human Rights Committee: 'Implementation at the
National Level (Art.2)':31/07/81.CCPR General Comment 3 (Thirteenth Session 1981). See
also, Submissions, Robert McCorquodale, Hilary Charlesworth and Peter Bailey, Submission
No.26, Vol.1, 109.
112 Ibid.
113 Concluding Observations of the Human Rights Committee: Australia. 28/07/2000.
CCPR/CO/69/AUS. See also, Submissions, Robert McCorquodale, Hilary Charlesworth
and Peter Bailey, Submission No.26, Vol.1, 109.
114 Ibid.
115 Submissions, Robert McCorquodale, Hilary Charlesworth and Peter Bailey, Submission
No.26, Vol.1, 109.
116 Hilary Charlesworth, 'Australia's Split Personality: Implementation of Human Rights
Obligations in Australia', in Alston and Chiam (eds), above n 79, 140.
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addressed. In essence, the proposed anti-Teoh legislation had become outdated and
unnecessary before its debate in Parliament was even completed.
In the new term of the Federal Parliament, the official government position in
respect of Teoh must be reconsidered, particularly given that government has been
provided with an alternative and more appropriate policy basis in recent decisions of
the Federal Court. By developing specific and detailed guidelines in respect of
particular treaties which relate to the work of various departments, the government
would be adopting an approach to Teoh which is preferable to its previous hasty
attempts at executive and legislative repudiation. The benefits of such an approach
would include the fact that Australia's international standing would be less likely to be
affected, and domestically, the benefit of a consistent approach to the treaty process.
The challenge, however, lies in convincing federal governments of any persuasion
that there are both legal and political advantages in taking a responsible approach to
the domestic implications of ratification, rather than simply avoiding them at all cost.
However, time may well prove that, should the government persist with its current
approach, the Executive can no longer avoid the fact that the practical consequences of
ratification are far wider than merely providing access to a broadly defined external
affairs power that can be invoked at their discretion, and whenever there exists a
strong political motivation for doing so.
A TURTLE* BY ANY OTHER NAME: THE LEGAL BASIS OF
THE AUSTRALIAN CONSTITUTION
Anthony Dillon **
'Lawyers are not disposed to look behind the immediate constitutional framework to the
ultimate sources of legal authority': Lord Lloyd, The Idea of Law (1987) 173.
INTRODUCTION
In spite of Lord Lloyd's observation, the centenary of federation has given many
Australian lawyers the impetus to do just that, to consider the 'ultimate source' of
authority for the Australian Constitution. The general aim of this article is to assess the
legal basis of the Australian Constitution and, more specifically, how 'autochthony'1
for the Constitution might be achieved. Part I notes that as a result of the Australia
Acts, some members of the High Court have instigated a move away from the
traditional basis of the Constitution, the United Kingdom Parliament, to a new basis in
popular sovereignty. However, as it could be said that the Australia Acts only dealt
unequivocally with 'autonomy', and not 'autochthony', this move is dubious. Whether
_____________________________________________________________________________________
*
This analogy is drawn from Professor Frank Scott's work where he relates an eastern myth
to describe the Canadian Constitution as an elephant standing upon the turtle of the
sovereignty of the United Kingdom Parliament. It is said that all former Dominions and
colonies must eventually remove the Imperial turtle and replace it with a local one, but
without destabilising the whole superstructure. See generally, Frank Scott, Essays on the
Constitution: Aspects of Canadian Law and Politics (1977) 246-250. However, even after
patriation of the Canadian Constitution, 'it is not entirely clear whether in the sense
intended by Professor Scott, Canada now has its own turtle', Geoffrey Marshall,
Constitutional Conventions (1984) 206. This article will assess attempts at installing a local
Australian turtle as similarly equivocal.
**
BA LLB (Hons) (JCU). Postgraduate student, James Cook University. I would like to thank
Graham Nicholson and Peter Oliver for the benefit of comments made on an earlier draft of
this article. A shorter version of this article was delivered to the 19th Annual Conference of
the Australia and New Zealand Law and History Society, Australian National University,
Canberra, 6 July 2000.
1
Autochthony is concerned with how 'at some stage, a state must cease to be the offspring
and derivative of an Imperial predecessor and exist as a complete and self-contained entity,
as a law-constitutive fact itself', Phillip Joseph, Constitutional and Administrative Law in New
Zealand (1993) 398. In contemporary Australia, this notion has taken on some importance in
both academic and judicial circles because 'the position with respect to autonomy is
satisfactory, [but] the position with respect to autochthony is by no means as strong', Mark
Moshinsky, 'Re-enacting the Constitution in an Australian Act' (1989) 18 Federal Law Review
134, 135.
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Australia's evolutionary achievement of autonomy means that both the political and
legal sources of Australian constitutional authority now lie in some concept of popular
sovereignty, is a next step. Part I further argues against the necessity for the judiciary
alone to take this next step. This Part concludes by suggesting that, if the traditional
legal basis is to be judicially discarded, and a local legal source found, the federal
compact is the most historically correct interpretation of federation.
Parts II and III canvas a number of interrelated factors which hinder an
autochthonous2 explanation of Australia's removal from the orbit of the United
Kingdom legal system. Part II distinguishes between different approaches to the
cessation of the authority of the United Kingdom Parliament and concludes that any
such action to date by that parliament is equivocal, and as a result, the search for
autochthony is in the hands of Australians. Part III notes that although there are
different approaches to the acquisition of autochthony, an approach relying on
democratic and peaceful means is to be preferred. As such, two such possible
approaches are canvassed: the repeal of the Constitution Act or a declaration of
popular sovereignty. Either of these approaches might have consequences for the rule
of law, and therefore these must also be considered.
I
THE AUSTRALIA ACTS: THE AUSTRALIAN
PARLIAMENTS AS HEIRS?
PEOPLE
OR
The debate as to the basis of the Australian Constitution depends on two fundamental
concepts: 'autonomy' and 'autochthony'. This Part begins with a discussion of those
concepts before turning to consider whether the Australia Acts might be taken to have
established 'autochthony'.
Autonomy
Paradoxically, it has been possible to sever Australia's residual constitutional 'links'
with the United Kingdom without severing the legal 'chain'. As such, the chain of legal
continuity is still available to trace the links back to the United Kingdom. This allows
Australians to uphold the validity of the present fundamental legal order, including
the Constitution Act, while at the same time accepting that Australia is a completely
independent sovereign nation.
Thus, Australians can refer to their links with the United Kingdom as they evolved,
to show legal continuity and constitutional validity. However, since the passage of the
Australia Acts, Australia is free to chart its own legal and constitutional future in
accordance with its basic constitutive documents. Consequently, Australia is fully
autonomous. Further, the Constitution in that sense might no longer be considered
solely an Imperial statute3 but the primary constitutional document of Australia,
because the Westminster Parliament has ceased to have any domestic constitutional
_____________________________________________________________________________________
2
Although the concept of autochthony has been described as 'neither very clear nor very
useful', Peter W Hogg, Constitutional Law of Canada (3rd ed 1992) 54 n 41, it will be pursued
in this article because of an apparent confusion in some circles in Australia between it and
the concept of autonomy. As such, the term autochthony is employed in this article in the
sense used by Sir Kenneth Wheare, Constitutional Structure of the Commonwealth (1960) ch. 4,
89. See below n 10 and accompanying text.
3
The Australian Constitution is contained in clause 9 of the Commonwealth of Australia
Constitution Act 1900 (Imp) (the Constitution Act).
2001
The Legal Basis of the Australian Constitution
243
____________________________________________________________________________________
role in Australia.4 Even the Queen acts as Queen of Australia (not the United
Kingdom) when acting as Australian head of state.5
Tony Blackshield has said, '[a]s a fully autonomous independent nation, we must
explain our constitutional arrangements wholly in homegrown terms'.6 Why?
Autonomy is not autochthony. It is still logical for a former Dominion, now an
autonomous nation, to explain such arrangements by the 'gradual and, to a degree,
imperceptible'7 withdrawal of British hegemony, but still within the British legal
framework. Even so, it would be mandatory for any successful claim to autochthony
that Australia's constitutional arrangements be explained wholly in such terms.
Autochthony
As noted by Phillip Joseph, 'uninterrupted legal devolution [can] prove a mixed
blessing'8 Stability and continuity are preserved through 'orderly development'9 but
autochthony can be confounded. An autochthonous or homegrown constitution is said
to be one that has 'sprung from the land itself ... and is rooted in the local soil'.10 As
such, autochthony requires that a constitution be indigenous. In other words, the only
claim to authority of the Australian Constitution must spring from within Australia
itself.
By dint of legal history, Australia does not have a truly autochthonous
Constitution.11 Australia does not have a constitution solely adopted by the
spontaneous will (or by an assumed act) of the Australian people, nor a constitution
enacted by means of a break in legal continuity. Further, there appear to be competing
claims as to the authority of the Constitution; a persuasive one being that of an
Imperial statute. To be sure, all the constituent documents of the Australian
constitutional order have an external rather than a local root. As a result, Australia,
which seems more interested in the 'substance than in the trappings and formal
guarantees of independence'12 - apparently unlike New Zealand and to a lesser degree
_____________________________________________________________________________________
4
By virtue of s 1 of the Australia Acts 1986 (UK) and (Cth). As such, Australia's autonomy is
complete and irreversible.
5
Royal Style and Titles Act 1973 (Cth).
6
A R Blackshield, 'The Implied Freedom of Communication' in Geoffrey Lindell (ed) Future
Directions in Australian Constitutional Law (1994) 232, 242 (emphases added).
7
China Ocean Shipping Co v South Australia (1979) 145 CLR 172, 183 (Barwick CJ).
8
Phillip Joseph, 'Foundations of the Constitution' (1989) 4 Canterbury Law Review 58, 69.
9
Sue v Hill (1999) 163 ALR 648, 675 (Gleeson CJ, Gummow and Hayne JJ), quoting Southern
Centre of Theosophy Inc v South Australia (1979) 145 CLR 246, 261 (Gibbs J).
10
Wheare, above n 2, 89.
11
For a similar claim in relation to Canada's patriated Constitution, see Geoffrey Marshall,
Constitutional Conventions (1984) 206: '[I]f patriation is equated with the idea of
"autochthony" ... Canada's new Constitution is not (in the term popularised by Sir Kenneth
Wheare) "autochthonous''. In contrast, Marshall's earlier writing seemed to reflect a
broader and less strict view of "autochthony"'. This earlier view will be discussed at length
with respect to Australia in this article, see text accompanying n 140 below.
12
R T E Latham, 'The Law and the Commonwealth' in W K Hancock (ed) Survey of British
Commonwealth Affairs (1937) Vol. 1, 526. Wheare has also noted that many members of the
Commonwealth 'are not interested in the technicalities of law when they have the
substance of power', above n 2, 106.
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Canada13 - might seem fated to be content with autonomy and not autochthony.
However, this perceived inactivity, or even apathy, is not, and should not be, either the
cue or the justification for the High Court to step in and tidy up, in constitutional
terms, what Australians are unwilling to do for themselves.
At this point some might ask '[w]hy does autochthony matter?' and is it not, only
'the concern of sensitive Dominions and fussy persons?'14 Prima facie autochthony does
not matter constitutionally or legally, because autonomy is, arguably, the more
important constitutional value. That said, autochthony may matter emotionally or
symbolically; witness the current republican debate. Michael Detmold has also said
that 'autonomy does not need autochthony ... but autochthony is oddly attractive'. 15
Further, in a very practical sense, much of the present debate promoting popular
sovereignty as a 'theoretical' and autochthonous explanation of the Constitution, might
bring forth unintended and unforseen legal consequences, quite possibly in
constitutional interpretation. As Leslie Zines has noted, '[i]t might be suggested that
popular sovereignty places a constitutional restriction on legislative power by
requiring the parliament to act only for the benefit of the people, its constitutional
ruler'.16
Whilst in 1902, Harrison Moore was able to dismiss any 'doubt or speculation as to
the theoretical origin or legal foundation of the Commonwealth and the
Constitution',17 Andrew Fraser has rightly noted that there now appears a 'persistent
doctrinal confusion over the sources of legitimate constitutional authority in
Australia'.18 As a result of the 'implied rights cases', it is argued that the High Court
has created a constitutional and theoretical 'riddle' concerning which legal principle
should be seen as sustaining the Constitution.
_____________________________________________________________________________________
13
Peter Oliver suggests that this is '[p]robably, due in part to the fact that Australia had
benefited early on from the highest degree of constitutional independence of any of the
three'. Peter Oliver, 'The Constitution of Independence', Paper delivered to the Australia
and New Zealand Law and History Society, Melbourne, 4 July 1998 (copy on file with
author).
14
R Dawson, quoted in Queensland Constitutional Review Commission, Issues Paper (1999)
212.
15
Michael Detmold, The Australian Commonwealth (1985) 95, 105.
16
Leslie Zines, The High Court and the Constitution (4th ed, 1997) 417. See also recent
comments of Kirby J in Durham Holdings Pty Ltd v New South Wales (2001) 75 ALJR 501, 516:
‘The significance of the contemporary realisation that the foundation of Australia’s
Constitution lies in the will of the Australian people has not yet been fully explored’;
Moshinsky, above n 1, 135: 'The source of authority of the Constitution has significant
consequences for the way in which the powers of government are exercised and
interpreted'; James A Thomson, 'The Australian Constitution: statute, fundamental
document or compact?' (1985) Law Institute Journal 1199; and Geoffrey Lindell, 'Expansion
or Contraction? Some Reflections About the Recent Judicial Developments on
Representative Democracy' (1998) 20 Adelaide Law Review 111, 144, where Lindell warns of
'inherent dangers' in using the notion of popular sovereignty 'as a factor in constitutional
interpretation'. But cf George Winterton, 'Popular Sovereignty and Constitutional
Continuity' (1998) 26 (1) Federal Law Review 1, 5.
17
W Harrison Moore, The Constitution of the Commonwealth of Australia (2nd ed, 1910) 66-67.
18
Andrew Fraser, 'False Hopes: Implied Rights and Popular Sovereignty in the Australian
Constitution' (1994) 16 Sydney Law Review 213, 215-216 citing Mason CJ in Australian Capital
Television v Commonwealth (1992) 177 CLR 106, 138 (‘ACTV’).
2001
245
____________________________________________________________________________________
The legal source of the Constitution is the United Kingdom Parliament, because
Australia's constitutional arrangements are still legally derived from, but not
subordinate to,19 the United Kingdom Parliament which enacted the Constitution as
(part of, not merely a schedule to) one of its statutes. This statute, even after the
Australia Acts, has not ceased to hold its paramount status. It is clear that existing
Imperial Acts applicable to Australia in 1986, continue in force after 1986 until
amended or repealed by valid Australian legislation.20 This applies particularly to the
Constitution Act, and the Constitution it incorporates. As John Daley has noted: 'One
can only identify the provisions of [the Constitution] exhaustively by reference to the
enactments of the Imperial Parliament… [Therefore] a body may remain the authority
for legislation made in the past, even if that body lacks the authority to legislate in the
present'.21 Moreover, 'there is no difficulty ... as long as authority is distinguished from
continuing power ... Thus the common law may recognise the Westminster Parliament
as the authority for the Australian Constitution and also recognise that any continuing
power in the Westminster Parliament has ceased'.22 Therefore, any attempt by the
Westminster Parliament to repeal or amend any of Australia's basic constitutive
documents would be met with Australian rejection and disdain. In all probability, the
High Court would regard the unwanted law as having no status at all: the law would
be a nullity in Australia.23 As Geoffrey Marshall has noted: '[P]reservation of the
British historical and legal root is compatible with its being the case that the
Westminster Parliament is no longer able to legislate for [Australia]…'24
The political source of the Constitution might be the people of Australia (or possibly
the electorate) 25 because in political terms, 'the Constitution ultimately depends for its
_____________________________________________________________________________________
19
In this respect I question Joseph's interpretation, above n 1, 397, of the effects of one legal
system being derived from another. This article rejects the view that a legally derived (but
now fully autonomous) system must necessarily in any way (historically or otherwise)
remain subordinate. As Professor Winterton has noted, '[i]t is surely to confuse continuity
with subordination'. Winterton above n 16, 7, quoting Geoffrey Marshall, Constitutional
Theory (1971) 63. See also, John Daley, The Bases for the Authority of the Australian
Constitution (1999) unpublished D Phil thesis, Oxford, ch 5.3 (copy on file with author): '[A]
legislature whose authority is derived from a source need not remain subordinate to that
source' and further '[T]he rhetorical desire to assert that Australia's constitutional law is
independent of any other country is [often] based on the mistaken belief that derivation
from a source implies subordination' ibid ch 5.6.3. Further, although a break in legal
continuity would deny legal derivation, there would never be any point in denying
Australia's historical derivation.
20
China Ocean Shipping Co v South Australia (1979) 145 CLR 172, 195 (Gibbs J). See also, the
recent 'Treaty of Versailles' cases of Joose v Australian Securities and Investment Commission
(1998) 159 ALR 260 and Helljay Investments Pty Ltd v Deputy Commission of Taxation (1999)
166 ALR 302.
21
Daley, above n 19, ch 5.3.
22
Detmold, above n 15, 95. See also, Moshinsky, above n 1, 144.
23
Also noted by Hogg, above n 2, 56 in relation to Canada. See, the comments of Gleeson CJ,
Gummow and Hayne JJ in Sue v Hill (1999) 163 ALR 648, 666 where the same is implicit.
24
Marshall, above n 11, 207 (emphasis added). Moshinsky similarly notes, 'acceptance of the
traditional view that we do not have an autochthonous constitution, does not necessarily
mean that the British Parliament can repeal or amend the Constitution Act', above n 1, 136.
25
A V Dicey, Introduction to the Study of the Law of the Constitution (1st ed, 1885; 10th ed, 1959)
73-76 distinguished between 'legal' and 'political' sovereignty, attributing the former to the
King-in-Parliament and the latter to electors. The current political or moral basis of the
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____________________________________________________________________________________
continuing validity upon the acceptance of the people, but the same may be said of any
form of government which is not arbitrary'.26 As such 'the Constitution is only
"homegrown" in a practical, not legal, sense'.27 Further, it is in this practical sense only,
that the people of Australia should be regarded as ultimately sovereign.
Several Justices of the High Court have attributed the phrase 'ultimate sovereignty'
to the people of Australia. However, it is often not clear in what sense it is being used.
Does it mean 'legal' or 'political' or both, or something else again? Both Mason CJ in
Australian Capital Television v Commonwealth28 (‘ACTV’) and, elsewhere, Dawson J29
have resorted to use of the phrase. It seems unlikely, however, that both Justices used
it to mean the same thing. It would appear Mason CJ used it to signify political and
legal sovereignty, much like McHugh J was to signify in Ridgeway v The Queen30 and
McGinty v Western Australia.31 However, four years later Mason reiterated his views
from ACTV about the passage of the Australia Acts, but stated that it was now possible
to say 'that political sovereignty resides in the people'.32 In this respect the word
'political' is substituted for the word 'ultimate' as used in ACTV. On the other hand,
Dawson J appears to have consistently used 'ultimate' to signify 'political' sovereignty,
in the sense that the people's will is ultimately obeyed.
The Australia Acts and Autochthony
Nicholas Aroney has suggested that some members of the High Court have 'recently
expressed interest in finding an autochthonous source for the Australian constitutional
system'.33 Often, this trend has been based upon consideration of the Australia Acts.
However, it is not clear that the scheme of the Australia Acts amounted to such an
invitation. In confirming that Australia is autonomous, some Justices34 have made a
_____________________________________________________________________________________
Constitution is however, a matter of some controversy. For a detailed investigation of the
moral legitimacy of obeying the Constitution, see Daley, above n 19, ch 5.6.2: '[T]he moral
authority of the Constitution never rested simply on the fact that it was legally derived
from the Imperial Parliament'. See also, Jeremy Kirk, 'Constitutional Interpretation and
Evolutionary Originalism' (1999) 27 Federal Law Review 323, 339.
26
ACTV (1992) 177 CLR 106, 181 (Dawson J).
27
Moshinsky, above n 1, 136.
28
ACTV (1992) 177 CLR 106, 138.
29
Commonwealth v Mewett (1997) 191 CLR 471, transcript of oral argument 6/8/96 from web,
12/9/99, http://www.austlii.edu.au/do/disp...ipts/1995/M42/8.html; 9.
30
(1995) 184 CLR 19, 91 (citing Mason CJ in ACTV).
31
(1996) 186 CLR 140, 230 (citing Mason CJ in ACTV). See also, Michael Wait, ‘The
Slumbering Sovereign: Sir Owen Dixon’s Common Law Constitution Revisited’ (2001) 29
Federal Law Review 57, 70: ‘Upon gaining independence, legal sovereignty, relinquished by
the Imperial Parliament, was therefore vested in the Australian people, uniting in them
both legal and political sovereignty, or "ultimate sovereignty", citing Mason CJ in ACTV
and McHugh J in McGinty.
32
Sir Anthony Mason, 'The Interpretation of a Constitution in a Modern Liberal Democracy'
in Charles Samford and Kim Preston (eds) Interpreting Constitutions: Theories, Principles and
Institutions (1996) 13-30, 30 (emphasis added).
33
Nicholas Aroney, 'A Public Choice? Federalism and the Prospects of a Republican
Preamble' (1999) 20 University of Queensland Law Journal 262, 284.
34
See particularly, ACTV (1992) 177 CLR 106, 138 (Mason CJ); Nationwide News Pty Ltd v Wills
(1992) 177 CLR 1, 70-72 (Deane and Toohey JJ); Leeth v The Commonwealth (1992) 174 CLR
455, 484 and 486 (Deane and Toohey JJ). See also, Kruger v The Commonwealth (1997) 190
2001
247
____________________________________________________________________________________
further step in reasoning, which does not necessarily follow. They have argued that
the traditional legal basis of the Australian Constitution has been discarded because it
can no longer sustain the perceived practical reality of a substituted basis; that is, the
sovereignty of the Australian people.
I agree with comments that such assertions amount to a 'radical relocation of
sovereignty'35 and 'grossly exaggerate the impact of the Australia Act 1986 (UK)'.36 As
Moshinsky has noted, it is not clear that the legal independence of Australia brought
about by the passage of the Australia Acts has 'altered the source of the authority of
our Constitution'.37 Independence does not necessarily imply a legal break. To be sure,
although the Australia Acts did sever the future legal relationship between the United
Kingdom and Australia, legal continuity was preserved and no constitutional void
resulted. However, there certainly existed a gap in Australian domestic legislative
power. The Acts dealt with this by regularising and recognising Australia's legal
separation, and should therefore be correctly interpreted as a remedial redistribution
of British legislative authority, to fill the gap in favour of the Australian parliaments. In
effect, the supremacy of the Australian parliaments under the Constitution was
substituted for the sovereignty of the Westminster Parliament.38
A critique - federal compact
If one adopts the view that the Australia Acts created a void39 in constitutional
authority, it might well be necessary to discern an 'alternative' (but maybe even only
'additional') local legal constitutional source.40 After all, it is recognised that our legal
_____________________________________________________________________________________
CLR 1, 89 (Toohey J), where his Honour in effect repeated his and Deane J's view from
Nationwide News; Ridgeway v The Queen (1995) 184 CLR 19, 91 (McHugh J); McGinty v
Western Australia (1996) 186 CLR 140, 230 and 237 (McHugh J). Further Justices such as
Brennan CJ (when on the bench) and Gaudron, Gummow and Kirby JJ are increasingly
concerned to look for ways to protect individual rights, and all accept as a starting point
that the people of Australia are sovereign. However, it would appear that neither Gaudron
nor Gummow JJ (nor possibly Kirby J) have explicitly claimed that such sovereignty is now
the legal basis of the Constitution.
35
Leighton McDonald, 'The Denizens of Democracy: The High Court and the 'Free Speech'
Cases' (1994) 5 Public Law Review 160, 182.
36
Winterton, above n 16, 10, although Professor Winterton argues 'the Constitution has long
been based on popular sovereignty', ibid, 9.
37
Moshinsky, above n 1, 144. See also, Daley, above n 19, ch 5.5.4: 'The attainment of
Australian independence does not necessarily imply that authority for the entire legal
system transfers to another source'; Peter Hanks and Deborah Cass, Australian
Constitutional Law (1994) 18, arguing that such independence 'need not affect the original
rationalisation for the paramountcy of the Commonwealth Constitution'; and Winterton,
above n 16, 6.
38
Keith Mason, ‘The Rule of Law’ in Paul Finn (ed), Essays on Law and Government, Volume 1
(1995) 114, 123: ‘the parliament[s] may be supreme, but they are not sovereign in the sense
that Dicey claimed that the British Parliament was sovereign. The distinction between
supremacy and sovereignty is critical’. See also, Paul Finn, 'A Sovereign People, A Public
Trust', ibid 1, 4, n 24 noting the view that: 'parliaments under our Constitutions [are] the
'Supreme Sovereigns' in this country'.
39
Professor Finn used the phrase 'apparent void' because 'divergent views can be taken on
this matter', ibid.
40
See, Aroney, above n 33, 285 citing H W R Wade, 'The Basis of Legal Sovereignty' [1955]
Cambridge Law Journal 172, 192: 'The Courts will then have to search for an autochthonous
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system (and arguably constitution) must have a legal fons et origo (source and origin).
However, popular sovereignty is only one possibility, it is not the 'default setting'.
Others include authority derived from a divine being, or from the State itself, or from
indigenous-non-indigenous reconciliation or even from provincial autonomy reflected
in a federal compact.41
This article argues that if the traditional legal basis is to be discarded by the High
Court, a federal compact between the colonies as polities, (or even the people of the
colonies) is a more historically correct interpretation of federation than a social
contract42 based upon popular sovereignty. Whilst the agreement between the colonies
to federate was not legally binding because the Constitution obtained its juristic force
from the United Kingdom Parliament, the absence of that parliament from Australia's
constitutional arrangements might require a fresh analysis of the legal status of the
agreement. Further, the potentially powerful effect of the unanimity evident in the
passage of the Australia Act 1986 (Cth) and the resultant 'unanimity procedure'
embodied in s 15 of the Act adds weight to the argument that the Constitution may
now be seen as a compact. A similar view has recently been espoused by Nicholas
Aroney:
'The Imperial Parliament abdicated its legislative capacity concerning Australia, and the
unanimous action of the States took its place ... as the ultimate source of authority in the
Australian federation… [T]he Constitution Act is now binding due to the unanimous
agreement of the States…' 43
_____________________________________________________________________________________
source of bindingness'. See also, Michael Kirby, 'Constitutional Interpretation and Original
Intent' (2000) 24 Melbourne University Law Review 1, 7. Unless Australians are prepared to
accept Gilbert's notion of two grundnorms, the question may come down to either s 15 of the
Australia Acts or s 128 as the source. See, Aroney, above n 33, 287: '[I]f the Imperial
Parliament has now abdicated its legislative powers over Australia, legal theory seems to
require that we understand, at least one of these powers as the source, rather than a
tributary, of the stream'; Geoffrey 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; R D Lumb, 'The Bicentenary of Australian Constitutionalism: The Evolution of Rules of
Constitutional Change' (1988) 15 University of Queensland Law Journal 3, 32 and Christopher
Gilbert, 'Section 15 of the Australia Acts: Constitutional Change by the Back Door' (1989) 5
Queensland University of Technology Law Journal 55, 66-68.
41
Frank Scott, Essays on the Constitution: Aspects of Canadian Law and Politics (1977) 248-249.
Michael Waite has suggested that in Sue v Hill (1999) 163 ALR 648, Gleeson CJ, Gummow
and Hayne JJ regard the ultimate legal sovereignty as vested in the Crown thus, in some
form, restoring a Dixonian constitutionalism; Waite above n 31, 72.
42
See also, Nationwide News, (192) 177 CLR 1, 70 (Deane and Toohey JJ); ACTV (1992) 177 CLR
106, 136 (Mason CJ), 210-211 (Gaudron J), 228 (McHugh J) cited by Nicholas Aroney,
Freedom of Speech in the Constitution (1998) 253 n 30. Of the present Court, Kirby J appears
the most prepared to canvas notions of fundamental and deep lying rights that have never
been ceded by the people and that may even have been jealously reserved. See, Michael
Kirby, ‘Deakin – Popular Sovereignty and the True Foundation of the Australian
Constitution’ 1997 Deakin Law School Public Oration, delivered 28 January 1999 (copy on
file with author); Durham Holding Pty Ltd v New South Wales (2001) 75 ALJR 501, 511.
43
Aroney, above n 33, 290-292. In this sense, the Australia Acts might be seen as 'a novation
of the federal compact, a new fundamental agreement between [the] Commonwealth and
States', Latham, above n 12, 527.
2001
249
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Further, '[w]hile it has for many years been regarded as a heresy to refer to the
Constitution as a compact',44 this view could, in light of the Australia Acts, be seen as
unnecessarily restrictive. Greg Craven has made the point that '[a] compact theory of
federation, is, if anything, rather more plausible in Australia after the collapse of
Imperial supremacy than it was before that event'.45 Thus Aroney further comments
that:46
[M]ost accounts of the search for the basic rule [of the Australian legal system] have been
skewed by an (unhistorical) camber in favour of regarding the Australian 'people' as an
undifferentiated (and rather undefined) whole, without regard to the States into which
they are organised and, more importantly, without regard to the federative compact
which, from an autochthonous and legal point of view, brought the federation into being.47
Therefore, it is now open for some to view the Constitution as a federal compact, as it
is open for others to view it as social contract. Indeed, the federal compact view has a
much stronger historical pedigree. James Thomson has noted:
'[h]istorically, the Australian Constitution was not formally approved by the people
acting as a collective entity. Rather it was endorsed by enfranchised citizens voting as
members of individual and distinct colonies'.48
This views the people who voted to accept federation as inhabitants of their respective
colonies (and of course British subjects), not citizens of the Commonwealth49 organised
into a single national unit. A problem common to both 'social contract' and 'federal
compact' paradigms, however, is that it might (although not necessarily) involve a preEngineers50 approach to interpretation. This might require 'an interpretation of the
Constitution ... which is formed on a vague, individual conception of the spirit of the
compact [or contract]'.51
Popular sovereignty
In spite of the Australia Acts' limited mandate, many sponsors of popular sovereignty
have cited their passage as the decisive and defining moment for the ascendancy of
popular sovereignty and the acquisition of autochthony. Mason CJ in ACTV was
emphatic that 'the Australia Act 1986 (UK) marked the end of the legal sovereignty of
_____________________________________________________________________________________
44
Zines, above n 16, 308.
45
Greg Craven, 'A Few Fragments of State Constitutional Law' (1990) 20 Western Australian
46
Aroney, above n 33, 288 (emphases added).
47
However, one problem is that for the federal compact to create an autochthonous
Commonwealth, the colonies would need to be considered autochthonous. This might be
difficult in light of the countervailing necessity to refer to Imperial legislation in their
creation. For, how do the people voice their 'ultimate sovereignty' if not by some legally
created mechanism (the colonies) and which body created that mechanism (The Imperial
Parliament)?
48
Thomson, above n 16, 1201.
49
Finn, above n 38, 3, n 15.
50
51
Ibid, 145 (Knox CJ, Isaacs, Rich and Starke JJ).
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the Imperial Parliament and recognised that ultimate sovereignty resided in the
Australian people'.52
On one level it is difficult to dispute the first proposition of Mason CJ's statement.
However, does it necessarily follow that the beneficiary of this relinquishing of
sovereign power is the Australian populace and not the Australian parliaments?
Where is it recognised that this redistribution of Westminster sovereignty should
become the property of, and 'embedded in'53 the Australian people?
Neither version of the Australia Acts make any reference to 'the people of
Australia', let alone anything that could be construed as an invocation of the 'people as
a legislator', or even a declaration of popular sovereignty. Moreover, as the local
version was not approved by referendum, the scheme of the Australia Acts could not
be said to have taken place within a popular framework. In fact, the scheme took place
within a federal framework, based squarely on state unanimity. The Australia Act
1986 (Cth) was enacted pursuant to s 51(xxxviii) of the Constitution, that is, by the
Commonwealth Parliament at the request and concurrence of all the States. This
unanimity then authorised the United Kingdom legislation (pursuant to s 4 of the
Statute of Westminster) at the request and with the consent of, the Commonwealth
Parliament and Government.
Popular sovereignty is, in terms of Australia's constitutional arrangements, an
ahistorical54 and nebulous55 concept. Many of its proponents, however, are not
deterred by mere history (constitutional or otherwise) and consequently 'admit that
the paradigm ... is not justified by history, but argue that this dissonance is
irrelevant'.56 Many sponsors point to the fact that an unstated premise of the Australia
Acts is that s 128 is now the only method of altering the Constitution, and that by
_____________________________________________________________________________________
52
(1992) 177 CLR 106, 138 (emphasis added). I assume that Mason CJ intends 'ultimate' to
include political and legal. See, Zines, above n 16, 394: 'Mason CJ, therefore, spoke of the
people as heirs to the British parliament.'
53
McGinty v Western Australia (1996) 186 CLR 140, 237 (McHugh J).
54
Justice Hutley has said, 'Australia does not have to pretend that power comes from the
people. The polity has an historical legitimacy which America does not have'. Frank
Hutley, 'The Legal Traditions of Australia as contrasted with Those of the United States'
(1981) 55 Australian Law Journal 63, 64.
55
See, D A Smallbone, 'Recent Suggestions of an Implied 'Bill of Rights' in the Constitution,
Considered as a Part of a General Trend in Constitutional Interpretation' (1993) 21 Federal
Law Review 254, 269: 'In an age which has demonstrated that democracy can exist without
constitutional recognition of the concept of popular sovereignty, there is no need to adopt
so dangerous and unsatisfying a notion into the fundamental fabric of our Constitution'.
Daley, above n 19, ch 5.6.1 notes that popular sovereignty is not even 'a desirable fiction'.
Further, as Professor Zines has noted, '[i]t is difficult to be certain in clear legal terms what
the notion of the sovereignty of the people means. The concept of sovereignty of the people
... must be regarded as either purely symbolic or theoretical', above n 16, 395-396. As
Aroney has noted, '[i]n either case, there is a problem of definition, which must be
addressed'. Aroney, above n 33, 288. See also Waite, above n 31, 72: ‘the vesting of
sovereignty in the people is apt to create confusion.’
56
Harley G A Wright, 'Sovereignty of the People – The New Constitutional Grundnorm?'
(1998) 26 Federal Law Review 165, 184.
2001
251
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virtue of its popular provisions, the people (as a single national unit) are now the legal
source of constitutional authority.57
However, at least five points can be made in response:
• First, the location of a power to amend the Constitution might not be the best
indicium of municipal sovereignty - or of autochthony for that matter - and may be
merely a 'procedural condition precedent'.58 In this sense, there appears to be some
confusion between the 'source of the authority' of the Constitution and the
'location of the power to amend' the Constitution. Indeed, it might be thought
convenient that the 'one body' would exercise both the powers to make and amend
the Constitution, as McHugh J in McGinty has asserted.59 However, as
demonstrated by George Winterton, this is not the case in Australia.60 The
Australian people did not make the Constitution. Their role was limited to
approving the original draft Constitution; 'albeit without legal effect'.61
• Secondly, the people's will in s 128 is expressed as residents of the component
units of the federation, the States, and not in a conglomerate mass of national
citizens.62 As such it is accepted that Australia enjoys popular sovereignty of some
sort in s 128 of the Constitution. However, the preferable view is to adopt the
words of Quick and Garran:
In the Constitution of the Commonwealth of course there is no absolute
sovereignty, but a quasi-sovereignty which resides in the people of the
Commonwealth, who may express their will on constitutional questions through a
majority of the electors voting and a majority of the States. 63
_____________________________________________________________________________________
57
See below n 147 and accompanying text for other arguments suggested to sustain the
theory of popular sovereignty as the source of authority of the Constitution; ie, approval of
the Constitution by 'acceptance' and/or by 'referenda'.
58
See, Fraser, above n 18, 217: 'Section 128 establishes a procedural condition precedent to the
exercise of the constituent power vested in the Commonwealth Crown-in-Parliament, not
an alternative locus of sovereign authority'. Further, as Professor Winterton has noted,
'[t]he s 128 electors derive their authority from the Constitution and, therefore, logically
cannot constitute the source of its authority', above n 16, 7 n 47.
59
(1996) 186 CLR 140, 237. In this respect relying on Bryce's notion that 'ultimate sovereignty'
resides with 'the authority (whether a Person or Body) which made and can amend the
constitution', James Bryce, Studies in History and Jurisprudence (1901) Vol 2, 53. However
Bryce might be thought to be equating 'ultimate' with 'political', because he further
attributed 'legal sovereignty' to the legislature (conjointly with the amending body).
60
Winterton, above n 16, 4-5. Nor even in the US for that matter, where that popular
constitution is 'amended by means other than a direct, popular vote', Aroney, above n 33,
272 citing Gilbert, above n 40, 67.
61
Winterton, above n 16, 5. See also, Sir John Latham, 'Interpretation of the Constitution' in
R Else-Mitchell (ed) Essays on the Australian Constitution (2nd ed, 1961) 1, 4.
62
As such Greg Craven's 'perennial question [still] rings out: "Which people, and in what
units?"', above n 45, 360. See also, Kirk, above n 25, 341. Gummow J in McGinty v Western
Australia (1996) 186 CLR 140, 274-275 emphasised the federal considerations in s 128 which
circumscribe the popular provisions.
63
John Quick and Robert Garran, The Annotated Constitution of the Australian Commonwealth
(1st ed, 1901, 3rd ed, 1995) 988. See also, the recent comments of Aroney: '[I]f a theory of
'popular sovereignty' is presupposed by the federal constitutional system, it is a theory
which contemplates various configurations of "people[s]" constituting their governments in
their varying capacities.' Nicholas Aroney, 'Federal Representation and the Framers of the
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•
•
•
Thirdly, the plenary legal power which many seem to suggest resides in the
people, does not in fact exist. Any sovereignty of the Australian populace is
certainly not 'equivalent' to that formerly wielded by the Imperial Parliament.64 It
is sufficient to note that the Australian people have only a joint legal role (with the
Commonwealth Parliament and the Governor-General) under s 128.65 The
Commonwealth Parliament must initiate constitutional change before the people
are invited into the process to either approve or disapprove of the proposed
alteration. The people also have a further continuing legal role which they exercise
by directly electing both Houses of the Commonwealth Parliament at regular
elections pursuant to ss 7 and 24 of the Constitution. As such, the people's express
role is prescribed and entrenched by the terms of the Constitution, and it is neither
necessary nor appropriate to imply any further constitutional role to them. To
ascribe an additional legal role to the people adds nothing to the legal validity of
the Constitution.
Fourthly, s 128 cannot change everything in the Australian constitutional matrix.
For example, it cannot be used to change the Constitution Act. In contrast, it is
generally recognised that s 15 of the Australia Acts has completed Australia's
ability to alter all of its constitutive arrangements. Moreover, although this is not
likely to occur, s 15 (at least in its British version) might also provide for
constitutional change without popular approval.66 In this sense, s 15 impairs the
concept of popular sovereignty. Daley has argued, '[t]o the extent that British
parliamentary sovereignty impaired popular sovereignty before 1986, s 15 of the
Australia Acts appears to have transferred that power not to the people, but to the
Commonwealth parliament'.67
Fifthly, the authority of s 128 is by no means constant or continuous. If one adopts
a 'self-embracing' view, the view that the United Kingdom Parliament can limit or
terminate its own powers,68 s 128 may confer the power of amendment on another
body by means of self-reference.
_____________________________________________________________________________________
Australian Constitution' in Gabriel Moens (ed) Constitutional and International Law
Perspectives (2000) 13, 44.
64
See, Leslie Zines, 'The Sovereignty of the People' in Michael Coper and George Williams
(eds) Power, Parliament and the People (1997) 91-107, 95: '[T]he sovereignty attributed to the
people has a quite different effect, and probably a different meaning, from that previously
possessed at Westminster'.
65
Daley has noted, '[i]f Australia has 'popular sovereignty' because the people have the
power to amend, then to the same extent Australia has "Commonwealth Parliamentary
sovereignty"', above n 19, ch 2.5.1.
66
Fraser, above n 18, 217: 'Far from establishing the 'ultimate sovereignty of the people'
section 15 of the Australia Act (UK) actually made it possible for the Commonwealth and
state parliaments acting together to bypass section 128'. See also, McGinty v Western
Australia (1996) 186 CLR 140, 275 (Gummow J).
67
Daley, above n 19, ch 6.4.5.
68
Noted by Hart, above n 69, 149; Latham, above n 12, 533; Marshall, above n 19, 45-47 and
I Jennings, The Law and the Constitution (5th ed, 1959) 151-172.
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Acquisition of Autochthony
To achieve autochthony, an 'independent future [must be] irrevocably sealed off from
the dependent past'.69 The difficulty of explaining, in an autochthonous sense,
Australia's removal from the orbit of the United Kingdom legal system is seemingly
aggravated by a number of interrelated factors. The primary concern is the dilemma
posed by the question of whose actions should be seen as legally decisive: those of the
parent or those of the offspring? Discussed in Part II is the dominance of the traditional
understanding of parliamentary sovereignty as 'continuing'. This promotes the view
that the parent 'cannot protect its statutes from repeal, because no one sovereign
parliament could effectively bind a future sovereign parliament'.70 On this view the
United Kingdom Parliament has not irrevocably ceded legal authority to Australia.
However, an alternative to the traditional theory, the 'self-embracing' theory,
mentioned above, recognises that the United Kingdom Parliament can limit or
terminate its own powers, and therefore its actions can be seen as 'genuinely
abdicative'.
There is no absolute standard here. Both versions are comprehensible and
neither can be logically preferred for all legal systems.71 Discussed in Part III is the
dominance of a strict view that for any offspring to obtain autochthony, a break in
legal continuity must occur. (This is really a corollary of the 'continuing' view of
sovereignty). However, a less strict view emanating from the work of Geoffrey
Marshall will also be canvassed.72
II.
ACTIONS OF THE PARENT: HISTORY AS EQUIVOCAL AND
INDEFINITE
The continuing view
Around the time the British Empire began reinventing itself into the more egalitarian
Commonwealth of Nations,73 the traditional understanding of parliamentary
_____________________________________________________________________________________
69
Marshall, above n 19, 57.
70
Dicey, above n 25, 39-41 and 67-68. See also, H L A Hart, The Concept of Law (2nd ed, 1994)
149. R T E Latham pointed out (citing Dicey) that this is because 'established constitutional
doctrine held that it was in strict law impossible for the Imperial Parliament to put it
beyond its own power to repeal any of its own Acts' (emphasis added), Latham above n 12,
530. See also, Wheare, above n 2, 111 and Wade, above n 40, 187-189.
71
Peter Oliver, 'The 1982 Repatriation of the Constitution of Canada: Reflections on
Continuity and Change' (1994) 28 La Revue Juridique Themis from web, 24/3/00,
http://www.droit.umontreal.ca/pub/themis/94vol28n2-3/OLIVER.html; 17. A separate
line of research might canvas whether there are intermediate positions.
72
Marshall, above n 19, 57-64. See text accompanying n 140 below.
73
The Balfour Declaration was the result of proceedings at the 1926 Imperial Conference. The
declaration read in part: 'They [Great Britain and the Dominions] are autonomous
communities within the British Empire, equal in status, [and] in no way subordinate one to
another in any aspect of their domestic or external affairs'. The Statute of Westminster was
a result of proceedings at the 1930 Imperial Conference.
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sovereignty was often forcefully stated. In respect of s 4 of the Statute of Westminster it
was said by way of obiter dicta:74
It is doubtless true that the power of the Imperial Parliament to pass on its own initiative
any legislation that it thought fit extending to Canada remains in theory unimpaired:
indeed the Imperial Parliament could, as a matter of abstract law, repeal or disregard s 4 of
the Statute.
As such, s 4 of the Statute was 'not an express abdication of power to legislate for the
Dominions, but redefine[d] the legislature which [could] enact a statute extending to a
Dominion … to include the relevant organ of the Dominion as well as the three parts of
the British Parliament'.75 It therefore seemed possible to view the sovereignty of
parliament as accepting restrictions of manner and form. Much more controversial
however would be restrictions of substance.
To be sure, the traditional theory's perceived inadequacies were only brought into
sharp focus when the United Kingdom Parliament ultimately purported to divest itself
of a portion of its sovereign power and abdicate76 its ability to legislate for the
Dominions.77 By the time the British Parliament had terminated all legislative power
for Canada in 1982, the 'continuing' view was under serious threat, though still
undecided. In dealing with a challenge to the Canada Act 1982 (UK), Sir Robert
Megarry V-C in Manuel v Attorney General78 made important observations which neatly
emphasise the difficulty of considering autochthony at the hands of the parent.
Megarry V-C referred to that 'abstract' part of traditional theory that holds that even if
a 'convention had grown up that the United Kingdom Parliament would not legislate
for that colony without the consent of the colony. Such a convention would not limit
the powers of Parliament'.79 The Vice-Chancellor then referred, in obiter dicta, to the
_____________________________________________________________________________________
74
British Coal Corporation v The King [1935] AC 500, 520 (Viscount Sankey LC) (emphasis
added).
75
George Winterton, 'The British Grundnorm: Parliamentary Supremacy Re-Examined'
(1976) 92 Law Quarterly Review 591, 603.
76
According to the traditional theory of parliamentary sovereignty, the very fact of legislative
abdication is disputed. A sovereign parliament cannot abdicate part of its sovereignty. It
can only abdicate its sovereignty entirely, that is by dissolving itself, leaving no successor,
or by transferring permanently its entire legislative authority to a new legislative body:
Peter Oliver, 'Cutting the Imperial Link' in Phillip Joseph (ed) Essays on the Constitution
(1995) 368-403, 394, n 145, quoting Marshall, above n 11, 209. See also, Wade, above n 40,
196, n 69 and D Lloyd, The Idea of Law (1964, rep 1987) 182. See also, Attorney-General (NSW)
v Trethowan (1931) 44 CLR 394, 425-426 (Dixon J). However, H W R Wade has discussed a
distinction between 'cession of territory' and 'cession of Parliament's powers, meaning the
omnipotence of future Parliaments'. He views the former as uncontroversial and notes that
'Parliament has… repeatedly accepted limitations of its sovereignty in conferring
independence…' However, if the latter were accepted a 'technical revolution' (albeit
disguised or camouflaged) has taken hold. As such, the former may amount to a partial
abdication of sovereignty: H W R Wade, 'Sovereignty – Revolution or Evolution?' [1996]
112 Law Quarterly Review 568, 573-575.
77
This occurred by means of a series of 'Independence Acts' commencing as early as 1947
with the Indian Independence Act 1947 (UK) s 6(4) and, in more patient quarters, by the
Canada Act 1982 (UK) s 2, the Constitution Act 1986 (NZ) s 15(2) and the Australia Act 1986
(UK) and (Cth) s 1.
78
[1983] 1 Ch 77.
79
Ibid, 87.
2001
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judgment of Viscount Sankey LC in British Coal Corporation v The King80 to suggest that
the result would not be different even if the convention had matured into a provision
within an Act of Parliament, and that even that provision could be repealed without
consent. Such is the power of the traditional view taken to its logical conclusion.
However, Megarry V-C had to admit that even though it would be 'correct in
British law'81 to say that the United Kingdom Parliament 'could as a matter of abstract
law' repeal a statute granting independence to a country,82 it could not do so
effectively. This is because any such repeal 'will not make the country dependent once
more; what is done is done, and is not undone by revoking the authority to do it'.83
Similar concerns were also recognised by Murphy J in Bistricic v Rokov84 where his
Honour mooted that the United Kingdom Parliament 'could … repeal the Statute of
Westminster … [and] the Constitution Act. But such repeals would have no effect in
Australia'.85 However, there appear subtle variations in the respective reasoning. The
Vice-Chancellor seems at pains to maintain the distinction between continuing 'legal
validity' and 'practical enforceability' (for the United Kingdom), whilst Murphy J
discards legal validity because it cannot conform to, or explain, practical reality.86
This discarding of legal concerns in favour of practically expedient ones (or the
blurring of the two), seems to typify many of the judgments in the 'implied rights
cases', which promote popular sovereignty as the new legal basis of the Australian
Constitution. However, no matter what putative time is ascribed for the legal
sovereignty of the Australian populace, there are both historical and legal problems, as
well as 'considerable theoretical difficulties'. In the face of such criticisms, many
sponsors see the need to conflate the distinction between 'legality' and 'legitimacy'.87
Professor Finn has noted, 'Dicey's two sovereignties appear to be coalescing as they did
in the United States more than two centuries ago'.88 However, I would argue that
while the 'two sovereignties' can be fused, such momentous problems require and
demand a 'clear democratic decision' by the Australian people through the
parliamentary democratic process.
_____________________________________________________________________________________
80
[1935] AC 500
81
Hart, above n 69, 121.
82
[1983] 1 Ch 77, 88-89. Not expressly overruled on this point, although the Court of Appeal
appeared not to proclaim such a wide view of the traditional theory, [1983] 1 Ch 95, 105.
83
Ibid, 88. See also, Ndlwana v Hofmeyr [1937] AD 229, 237: 'Freedom once conferred cannot
be revoked'.
84
(1976) 135 CLR 552.
85
Ibid, 567.
86
Murphy J stated that: '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': Ibid. See also, Deane J in Kirmani v Captain Cook Cruises Pty
Ltd [No. 1] (1985) 159 CLR 351, 442 where his Honour intimated that 'it may be necessary at
some future time to consider whether traditional legal theory can properly be regarded as
providing an adequate explanation of the process which culminated in the acquisition by
Australia of full "independence" and "Sovereignty"'.
87
See, Fraser, above n 18, 222: 'Those who insist that the "real" genesis of the Constitution lies
in its acceptance by the Australian people have further eroded the already shaky boundary
between law and politics'.
88
Finn, above n 38, 4.
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Further, no matter how forcefully legal considerations are eschewed by judges and
jurists, theories such as continuing sovereignty, which may be 'suspect'89 as divorced
from reality in their application to Australia, can still exercise considerable influence.
This is because 'conventional and practical considerations seem precarious pegs on
which to hang the independence of ... any ... modern legal system'.90 As Marshall has
noted: '[W]e are operating at the untested limits of the traditional doctrine'.91
The self-embracing view
Increasingly, many argue that the traditional understanding of sovereignty must give
way to a new view described as 'self-embracing'. It is only by adopting this new view
that a sovereign parliament (such as Westminster) could be deemed to have brought
'its omnipotence to an end',92 without the need for intervention by the offspring. Thus
it would seem that if the notion of autochthony is to be assessed successfully and
decisively in terms of the actions of the parent, the self-embracing view must prevail.
Proponents of this theory suggest 'the better view is that without a break in legal
authority, the UK Parliament can irrevocably cede authority over an area to a new
constitutional structure'.93 Indeed, there now seems no theoretical or practical
justification for the continuing authority of the United Kingdom Parliament.
Such notions were tested when Canada cautiously addressed the exercise of
independence, by 'patriating' the BNA Act 1867 (UK) in 1982.94 But even as late as
1981, the Supreme Court of Canada had acknowledged that the United Kingdom
Parliament's powers to legislate for Canada were 'unimpaired' and 'undiminished'.95
However, as Peter Oliver has noted, the Court did not say, and was not asked to say,
'whether those powers were sovereign in a continuing or self-embracing sense'.96 The
difficulty for Canadians was that patriation took the form of another United Kingdom
statute - the Canada Act 1982 (UK) - which was of course 'the gift of the United
Kingdom parliament, not the Canadian peoples'.97 As a result, patriation threw up the
paradox that 'the legal continuity represented by Canada's strict adherence to existing
legal procedure ... is widely assumed to have achieved a break in continuity'.98
According to Oliver, this paradox is only resolved by 'consider[ing] the matter not
as a question of British constitutional theory ... but rather as a question of Canadian
constitutional theory regarding the evolution of the ultimate legal principle of the
Canadian legal system'.99 If such concerns are 'understood as a matter of British
_____________________________________________________________________________________
89
Murphy J in Bistricic v Rokov (1976) 135 CLR 552, 566-567 quoting and commenting on
Viscount Sankey LC's judgment in British Coal Corporation v The King [1935] AC 500, 520.
90
Peter Oliver, 'Canada, Quebec, and Constitutional Amendment' (1999) 49 University of
Toronto Law Journal 519, 561. See also, Oliver, above n 76, 394.
91
92
93
Daley, above n 19, ch 5.4.7.
94
The BNA Act was renamed the Constitution Act 1867. Like autochthony, 'patriation' is a
troublesome concept with any one of a number of standards and definitions.
95
Reference re Amendment of the Constitution of Canada (Patriation Reference) [1981] SCR 753, 799,
801.
96
Oliver, above n 71, 3.
97
Joseph, above n 8, 70 and n 1, 412.
98
Oliver, above n 71, 2.
99
Ibid, 13.
2001
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constitutional theory the answer could only be indefinite or qualified' because 'British
legal opinion leaned and arguably still leans toward continuing sovereignty'.100
Oliver's argument is persuasive and achieves the desired autochthony by recognising
that the 'ultimate rule of recognition' 101 of the Canadian legal system has evolved to
the point where Westminster sovereignty can be viewed as self-embracing. This is
because the ultimate rule of recognition can have a certain core (Parliament is
sovereign) but an uncertain penumbra (is it continuing or self-embracing
sovereignty?).102 Given that the penumbral question was always an open question,
Oliver explicitly rejects the presence of any break in legal continuity in Canada's
arrangements. Oliver therefore eschews the need to use Kelsen's grundnorm.103 To be
sure, an appeal to Kelsen could not comfortably accommodate legal continuity while
explaining Canada's legal escape from Westminster sovereignty.
In Australia, much academic writing is supportive of the promotion of popular
sovereignty into Australia's fundamental constitutional arrangements, but at the same
time is paradoxically reticent about assessing the change as paradigmatic.104 Similarly,
to my knowledge, no High Court Justice has expressly recognised, at least in curial
writings, the need to presuppose a new Australian 'ultimate rule of recognition' (or
grundnorm for that matter). This is in spite of the fact that some have been able to
discern a new popular legal basis for the Constitution.
Like Canada, Australia's independence could also be considered a 'gift of the
United Kingdom Parliament, not the Australian peoples'. However, in one sense
Australia has gone further than Canada, by re-enacting the Australia Act 1986 (UK).
As a result, signs that the High Court is prepared to consider such notions in terms of
_____________________________________________________________________________________
100 Ibid, 19. See also, Oliver, above n 90, 562.
101 Whilst H L A Hart admitted that his thesis of an ultimate rule of recognition, providing
authoritative criteria for the identification of valid legal rules, resembled Kelsen's
grundnorm and Salmond's 'ultimate legal principle', validity for him, was a question of fact.
Unlike Kelsen's grundnorm, which was a juristic assumption or postulation, the rule of
recognition could be established by an appeal to the facts, ie, to the actual practice of the
courts and officials of the system. See, Hart, above n 69, 292-293. See also, n 147 below and
text accompanying.
102 Oliver, above n 76, 398.
103 The concept of a grundnorm was developed by Hans Kelsen as a pre-supposition in juristic
thinking. It is the highest norm in any national legal order, and by identifying it, the jurist
is able to interpret all subsidiary norms as valid, and as a non-contradictory field of
meaning. All subsidiary norms can be traced hierarchically back to the grundnorm, each
subsidiary norm being validated by the norm above it: Hans Kelsen, The Pure Theory of Law
(2nd ed, 1970) 208. John Finnis in his seminal article has said that Kelsenian theory is
'incapable of explaining how a legal system might divide into two independent systems by
process of law', John Finnis, 'Revolutions and Continuity in Law' in A W B Simpson, (ed)
Oxford Essays on Jurisprudence (Second Series) (1973) 44-76, 60 (emphasis added).
104 See, Winterton, above n 16. But contrast some jurists have been prepared to assess the
elevation of popular sovereignty as amounting to a change in the 'grundnorm of
constitutional interpretation': Wright, above n 56, 165. See also, McDonald, above n 35, 161162. According to Mahoney P in Egan v Willis and Cahill (1996) 40 NSWLR 650, 685: 'The
effect ... and purpose [of the Australia Act, was] to alter the grundnorm of the Australian
legal system'; Waite above n 31, 70 commenting on Mason CJ’s Judgment in ACTV (1992)
177 CLR 106 and McHugh J’s judgment in McGinty (1996) 186 CLR 140 who argued that:
'these developments have, without overstatement, been described as revolutionary.'
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Australian, and not British constitutional theory can be found in the majority judgment
in Sue v Hill.105 As pointed out by Anne Twomey, the majority made the assumption
that 'the Australia Act 1986 (Cth) is fully effective and that the application of the
Australia Act 1986 (UK) may be completely disregarded'.106 Chris Horan further points
out: 'One consequence of [relying on the Commonwealth version of the Australia Act
1986 as effective to remove the last vestiges of Imperial authority] is to avoid the
theoretical problems raised by the abdication of sovereignty from a United Kingdom
viewpoint'.107 However, Marshall has suggested that it is the local re-enactment, not
the British Act, that may be 'legally redundant'.108 So too, Professor Zines has noted a
dispute over which version is operative, '[i]f s 51(xxxviii) did not support the Australia
Act 1986 (Cth), the British Act by nature of its paramount force would'. Moreover, 'any
attempt to regard the whole of the Australia Act as based on Commonwealth
constitutional power is impossible'.109
Thus, while the basic precept of an abdicating Westminster Parliament may have
gained many adherents, there does not seem to be unanimous agreement on what the
'self-embracing' theory represents. That is whether it can only truly be understood as a
matter of Australian, not British, constitutional theory. Moreover, the pervasiveness
and seemingly inextinguishable allure of the traditional theory should not be
underestimated. For even though many would assert that practically the 'continuing'
sovereignty of the United Kingdom Parliament is unlikely to make a difference, it
would be surprising to leave a theoretical explanation of independence unresolved. If
it transpires that the traditional view of the parent's sovereignty was to engender most
support, the following view would probably obtain: 'Any measure of emancipation at
the hands of the Imperial Parliament [for example, the Australia Act 1986 (UK)] ...
suffer[s] from the vital flaw that it [is] revocable at the Imperial Parliament's pleasure
... [N]othing that Westminster could do would remove this taint from its gifts'.110 In
the end the better view might be that, any legal consequences of the actions to date by
the United Kingdom in respect of autochthony are at best equivocal. As a result, the
search for autochthony would likely need to focus on the actions of the offspring, and
possibly revolutionary (peaceful and legal) concerns to seal off the past.
III
ACTIONS OF THE OFFSPRING: HISTORY IN THE MAKING
As demonstrated by increasing numbers of Australia's near neighbours, the rule of law
can too often be a fragile construct. Australia is indeed fortunate to have seen a greater
amount of this important constitutional value during its century of evolution from
former Dominion to sovereign state. However, might there not be a time when a once
_____________________________________________________________________________________
105 (1999) 163 ALR 648, 665-666 (Gleeson CJ, Gummow and Hayne JJ).
106 Anne Twomey, 'Sue v Hill - The Evolution of Australian Independence' in Adrienne Stone
and George Williams (eds) The High Court at the Crossroads (2000) 77-108, 100.
107 Chris Horan, 'Commentary' in Stone and Williams ibid, 109, 117-118.
108 Marshall, above n 11, 207.
109 Zines, above n 16, 305 and 308. Similarly, Gummow J in Kable v Director of Public
Prosecutions (NSW) (1996) 189 CLR 51, 138-9 noted that it is unnecessary to decide whether
51(xxxviii) is sufficient to support the Australia Act 1986 (Cth) because 'the Constitution
continues to speak to the present by taking into account the operation of the Australia Act
1986 (UK)'.
110 Latham, above n 12, 530.
2001
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only peaceful (if tacit) breach, is required to bring to an end the emotive notion of
Australia as a derivative of an Imperial ancestor?
In contemporary Australia, the drive for autochthony is unlikely to be an isolated
phenomenon. It will most likely be (although it does not have to be) connected with
the desire to achieve republicanism. Other political forces, previously evident in other
former self-governing Dominions, such as apartheid in South Africa, conflict with
Britain in Ireland, and the drive for independence in India, are not present in
Australia.111
Mark Moshinsky’s valuable discussion of possible methods of achieving
autochthony identifies a number of methods by which the Constitution Act might be
repealed and the Constitution re-enacted as an Act of the Australian Parliament. He
concluded that a peaceful legal revolution is the most desirable way for Australia to reenact the Constitution. However, Moshinsky only discussed re-enacting the current
monarchic Constitution as an Australian Act. He did not question the effect of
removing the Crown in the search for autochthony, but for the purpose of his labours,
'assumed that the Constitution itself would be re-enacted in identical terms'.112
Whilst this is a possibility, it seems more likely that any Australian constitutionmaking in the twenty-first century will undoubtedly have a republican flavour. Any
possible removal of the Crown and substitution with the sovereignty of the people
adds another dimension to the task at hand. If this is achieved by unauthorised means
there would be negative consequences for legal continuity, but positive consequences
for autochthony. If this is achieved by authorised means the converse may be true.113
The strict view of Autochthony
According to the strict view, to achieve autochthony, nothing less than a contrived
break in legal continuity will suffice.114 This is usually undertaken by adopting new
constitutional arrangements in a manner unauthorised by the pre-existing constitution.
When an offspring initiates such a break (no matter what view the traditional theory
takes of the parent's powers), such action may prove to be legally decisive. This is
_____________________________________________________________________________________
111 Moshinsky, above n 1, 151.
112 Ibid, 137.
113 By whatever means it is achieved, the people must be elevated to a legal constitutional role
to replace the Crown, so that the arms of government are constantly reminded of where
they derive their constitutional power. Many have noted that the ARM 'minimalist' model
did away with the 'impartial' and 'apolitical' Law-Giver (the Crown) without replacement,
or on another view, substituted a political one: the Commonwealth Parliament. See,
Martyn Webb, 'Republicanism Means More Than Removing The Queen: Lessons from
America 1776-1787' from web, 11/01/99, http://www.norepublic.com.au/Pages/Essay
_Webb _No_Case_Paper.htm; 5-6. See also, Alan Atkinson, The Muddle-Headed Republic
(1993) 51.
114 The strict view was espoused by Wheare above n 2, 111. It was also asserted by Stanley De
Smith and Rodney Brazier (eds) Constitutional and Administrative Law (7th ed, 1994) 70;
James A Thomson, 'Altering The Constitution: Some Aspects of Section 128' (1983) 13
Federal Law Review 323, 344-345; Enid Campbell, 'An Australian-made Constitution for the
Commonwealth of Australia' in Report of Standing Committee D to the Executive Committee of
the Australian Constitutional Convention (1974) 95, 100, and approved by Moshinsky, above n
1, 150-151, thereby requiring him to conclude that 'if constitutional autochthony is all
important, only the [peaceful legal revolution] method will do'.
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because the offspring has repudiated the very source of its autonomy. A revolutionary
shift in the grundnorm occurs and the validity of the new constitutional order cannot be
traced by a 'stream of authority' back to the parent. It must therefore be said that the
strict view owes much to Kelsenian theory.
Oliver cites the Irish Constitution as an example of a constitution 'no longer
connected to Westminster; it now has a root in popular sovereignty'.115 He then
continues, 'this transition was revolutionary (at least in the legal sense) or
autochthonous'.116 So too, some New Zealand commentators (but especially
F M Brookfield) have been able to discern a discontinuity by 'disguised revolution' in
New Zealand's 1986 independence arrangements. Although sounding drastic, such a
'revolution' would, in the Australian context, be benign as 'all that is required is to
change a legal principle without changing in any way the legal behaviour' 117 to
replace the weary Imperial turtle with an Australian one. Before, during and after such
a peaceful revolution, Australians would still recognise the Constitution as the
supreme law of the Commonwealth, and that a 'once only breach in the rule of law is
required'.118 But in enacting a truly autochthonous Constitution, the people should
realise they are exercising both their political and legal sovereignty. As a result, the
chain of legal continuity that can be traced back (with the exception being from 1649 to
1660) for almost one thousand years,119 would be broken.
The problem with the strict view requiring a break in continuity is that Australians
have shown an unfailing desire to conform to existing constitutional procedures for
sanctioning legal change. As such, Australians seem unlikely to adopt a new
constitution by unauthorised means. Even so, such conformity in no way prevents the
achievement of an Australian republic. Australia's current constitutional arrangements
are entirely adequate to facilitate republican change, (even if there is dispute over
which particular procedures should be used). But, if autochthony is the goal, more is
needed. To this end, is there a way for Australians to 'have their constitutional cake
and eat it too?'120
Repeal of the Constitution Act to achieve autochthony (the strict view modifiedevolutionary in process but revolutionary in effect)
What would be the effect of a Commonwealth Act passed pursuant to s 15(1) of the
Australia Acts which purported to repeal - not merely amend - the Constitution Act?121
_____________________________________________________________________________________
115 Oliver, above n 90, 560. Oliver is thus in agreement with Wheare above n 2, Joseph above
n 1 and Moshinsky above n1.
117 Scott, above n 41, 249.
119 Justice Kirby has noted this (almost) unbroken legal lineage of a millennium. Michael
Kirby, 'The Struggle for Simplicity, Lord Cooke and Fundamental Rights', paper delivered
to the New Zealand Legal Research Foundation Conference, April 1997 from web,
29/01/99, http://www.hcourt.gov.au/cooke.htm; 2. Others would however suggest other
discontinuities also, eg, 1688-89.
121 By repeal I mean repeal in toto. Only in this way might 'the current format of a national
constitution contained in an Act of the Parliament of another country' be dispensed with,
thus 'enhanc[ing] its status as a 'foundational' document': An Australian Republic, The
Options-The Report, The Report of the Republican Advisory Committee (1993) Vol 1, 122.
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It is not explicitly clear that merely amending, or even repealing, s 8 of the Statute of
Westminster will authorise the repeal of the Constitution Act.122 Stephen Gageler and
Mark Leeming123 are of the opinion that the Constitution Act can be repealed (by the
use of s 15 and other necessary provisions) as easily as it can be amended.124 Could
such action secure autochthony? Moshinsky concluded that, according to the strict
view, such an authorised process would not amount to a break in legal continuity and
therefore could not achieve true autochthony.125 However, I would favour an
interpretation that repeal of the Constitution Act by this process could secure
autochthony.
A repeal of the Constitution Act in toto would mean that it would be 'no longer
possible for the [offspring] to invoke a logically prior [parental] legislative power'.126
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By contrast, it could be argued the Constitution Alteration (Establishment of Republic)
1999 (Cth) did not purport to deprive the Constitution Act of legal force. The Constitutional
Convention had recommended that any provisions of the Constitution Act that have no
continuing force or relevance, should be repealed However, the Constitution (Requests)
Bill 1999 (Qld) requested the Commonwealth not to repeal either the long title, the enacting
words, the short title (covering clause 1) and covering clause 9 which contains the
Constitution itself. According to the Bill, only covering clauses 2 to 8 should be repealed
(clauses 5 and 6 were in fact to be incorporated into the Constitution itself; ss 126 and 127)
and the existing preamble omitted.
The Commonwealth Parliament has not legislated in response to these requests and
moreover, the Commonwealth was apparently relaxed about the need to delete the existing
preamble (see, Constitutional Alteration (Preamble) Bill 1999 (Cth)) and most of the
covering clauses. However, even in light of the more stringent requests from the States, the
retention of the long and short titles meant that the Constitution Act would have remained
in force, and further, still derived its legal authority from the Westminster Parliament.
122 This is due in part to the uncertainty surrounding the true scope and effect of s 2(2) of the
Statute of Westminster and s 51(xxxviii) of the Constitution, although the better view might
be to adopt an interpretation that promotes the 'completeness of Australian legislative
power': Polyukhovich v Commonwealth (1991) 172 CLR 501, 638 (Dawson J). To amend the
Constitution Act, the six State parliaments must first empower the Commonwealth (by the
use of s 15(1) of the Australia Acts) to amend (not necessarily repeal, as Moshinsky and
Gilbert suggested) s 8 of the Statute of Westminster to remove the limitation placed upon the
Commonwealth. The limitation so removed, the Commonwealth Parliament would then be
empowered by either s 2(2) of the Statute or s 51(xxxviii) of the Constitution, or both, to
amend the Constitution Act. This was the method chosen by the States to implement
changes to the covering clauses of the Constitution Act had the 1999 republican referendum
been successful; see Constitution (Requests) Bill 1999 (Qld) and other uniform State request
legislation. This also affirms the view that s 128 cannot amend anything outside what
covering clause 9 of the Constitution Act defines as 'the Constitution of the Commonwealth'.
123 Stephen Gageler and Mark Leeming, 'An Australian Republic: Is a Referendum Enough?'
(1996) 7 Public Law Review 143, 151.
124 If the repeal of the Constitution Act were considered unauthorised, the claim to autochthony
would be automatically stronger.
125 Moshinsky, above n 1, 150-151. However, he also notes a less strict view: 'Even if legal
continuity were preserved … so long as the enactment of the constitution took place in
Australia, it would be legally homegrown'. Thomson's view of any such use of s 15(1) of
the Australia Acts is that 'there would still exist an unbroken stream of authority flowing
from the United Kingdom Parliament' above n 114, 344.
126 F M Brookfield, 'Kelsen, the Constitution and the Treaty' (1992) 15 New Zealand Universities
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Such repeal would repudiate the source of Australia's legislative autonomy and deny a
legislative gift was ever made. The effect would be that the Constitution Act no longer
has any legal force in Australia. With the Constitution Act removed from the
constitutional landscape, the only claim to authority of the Australian Constitution
would spring from within Australia itself. As a result, a claim could be made that a
break in legal continuity took place. In other words, the process would be 'evolutionary'
(not being based on a revolutionary assertion of power) but the effect would be
'revolutionary'.127 This accords with Marshall's view (to be discussed shortly) that an
offspring may claim a break in legal continuity even though the process relied upon
ultimately derived from an externally-prior legislative power. After all, whether legal
continuity has been broken or not may well be the subject of differences of opinion.
However, since the current constitutional arrangements do contain a significant
democratic element, it would be necessary to obtain substantial popular approval. If
popular approval was obtained in all the States,128 at least two benefits would result.
First, it could be said that the now solitary Constitution (or any new constitution
subsequently enacted) would have been adopted by the spontaneous will of the
people. It 'would appear on its face to be an expression of the national will'129 but
really expressed in the units of States. Secondly, the judiciary would not be placed in a
difficult position as a popular 'majority in all six States would [effectively] place the
legitimacy of the new order beyond doubt'.130 Further, Moshinsky has noted, 'a
constitutional change designed to achieve autochthony has inherent validity'.131
Declaration of autochthony (a 'disguised' constitutional revolution)
If Australians were of a mind to institute a 'technical' break in legal continuity, the
following course might be undertaken. James Thomson cites Geoffrey Sawer as
suggesting:132
Perhaps the best way of dealing with this is to put to the people as a constitutional
amendment a declaratory provision stating that the sovereignty of the United Kingdom
Parliament ends on a named future date and is replaced by that of the Australian people.
This sort of proposal has a great deal to commend it. Had such a proposal been put to
the people and accepted to take effect from 3 March 1986, the constitutional
arrangements of Australia (in respect of grundnorm and autochthony issues) might no
longer be in such hot academic debate. In the end, however, the Australia Acts alone
could only achieve so much. By s 1 the sovereignty of the United Kingdom Parliament
was brought to an end, thereby fulfilling the first proposition of Professor Sawer's
proposal. However, their failure to use 'unauthorised means' spelt disaster for
_____________________________________________________________________________________
127 Joseph, above n 1, 122. See also, Oliver, above n 76, 391.
128 As Moshinsky, above n 1, 151 has noted: '[I]t would have to be considered whether popular
approval need also be received from a majority of voters in each State as it is arguable that it
is in units of States that the popular will is expressed in Australia as a federation'.
(emphasis added) Thus Moshinsky concludes (and I agree) that to obtain popular approval
in all the States would be politically 'cautious' and 'desirable'. So too, Aroney has said '[T]he
ultimate reason for turning to unanimity for the alteration [and repeal] of the Constitution
Act is that it embodies the formative basis of the federation': above n 33, 290.
130 Aroney, above n 33, 271.
132 Thomson, above n 114, 344-345, n 138 (emphasis added).
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autochthony, (but was a vindication for the most important constitutional value - the
rule of law). Moreover, the failure to invest legal sovereignty democratically in the
Australian people makes contestable the identity of the true beneficiary of the power
formerly exercised by the United Kingdom Parliament.
However, this does not mean that Australia cannot adopt such a course even today.
A plebiscite (then referendum) question could include a declaratory provision similar
to that suggested by Professor Sawer, along with a Constitution Alteration Bill for
Australia to become a republic. The declaratory provision should assert that 'all the
prerogatives of the Crown and the sovereignty of the Queen are transferred to the
people'.133 Further, as Moshinsky has suggested: '[T]he Australian Parliament,
probably after having secured popular approval, [could] declare the Constitution Act no
longer has any legal force in Australia…'.134 This could be achieved by repealing the
Constitution Act as discussed above, thereby enhancing the claim for autochthony. So
too, the requirement for popular approval in all the States should be insisted upon.135
It is argued such a course of action could put to rest many of the strictly legal views
noted throughout this article, and bring other opportunities forward. Primarily, the
Crown is replaced with the sovereignty of the people, and as such the people
constitute both the political and legal bases of the Constitution. In other words, the
Constitution is proclaimed in the name of the people.136 Further, the whole process,
including a successful plebiscite or referendum, the declaration, the repeal of the
Constitution Act and the enactment of a new constitution, could be seen as a
fundamental repudiation of the existing legal order thereby securing autochthony by a
'technical' break in legal continuity, and a 'disguised revolution'.137
At this point, I concede that some might consider it doubtful whether a declaration
that is based on a United Kingdom derived power can be effectively revolutionary.
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133 Such an assertion of popular sovereignty might take in part, the following form:
'Whereas all the constitutional authority ever possessed by the monarchs of the
Crown of England and later imposed by the monarchs of the Crown of the United
Kingdom of Great Britain and Ireland, and of the Crown of the United Kingdom of
Great Britain and Northern Ireland over the Commonwealth of Australia, such
allegiance is hereby withdrawn, and is now vested in the sovereign people of the
Commonwealth Republic of Australia.'
(Adapted in small part from the Constitution of New Jersey 1776).
135 In terms of the Australian Commonwealth becoming a republic, such unanimity would in
practice give one State the power of veto. Although on the other hand, for the sake of the
unity of the federation, all the constituent elements should agree to become republican at
the same time.
136 As a result, the people can deal with their fundamental rights as they wish. They can place
their faith in whichever institution they believe will best protect their liberty; that is, a
parliament or a court. Varying methods might be utilised to protect judicially enforceable
rights. A Bill of Rights (constitutionally entrenched or statutory) might be enacted. Rights
may even be reserved (as distinct from those surrendered) by provisions similar to the
Ninth and Tenth Amendments to the United States Constitution. Australians could also
embrace indigenous reconciliation issues in any new constitutional arrangements, perhaps
reflected in a treaty. Although, as Professor Finn noted, collective popular sovereignty
'poses a direct obstacle to acceptance of sovereignty in indigenous Australians', above n 38,
5.
137 Wade, above n 40, 191-197.
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This is because the old order is not intentionally violated by a revolutionary assertion
of power. However, I argue that the important aspect to consider in the declaratory
process is that the old order is violated not by unauthorised legislative means, but by
the people withdrawing allegiance to the sovereign constitutional authority possessed
by the current monarch. Lastly, as a consequence, academic observers of this process
might be constrained to posit a new ultimate rule of recognition (or even grundnorm) in
order to explain the validity of the new legal system.
Professor Sawer also noted that if such a measure as the declaratory procedure is
not adopted 'we may find yet the High Court in a suitable case ... doing it for us by a
sort of judicial UDI, taking effect on the date of the decision'.138 It would appear that
this scenario has exercised a marked attraction for some members of the High Court.
As a result of some judgments in the 'implied rights cases', it could be asked whether
the High Court has already altered Australia's constitutional arrangements.139
A less strict view of Autochthony: Marshall's criteria
Geoffrey Marshall has argued that there is no need for an unauthorised break to secure
autochthony. In his 1971 work he identified three criteria of autochthony. Further,
according to Marshall, legal continuity (or more accurately, lack of it), is only one
criterion. Thus, autochthony may still be achievable even without the enactment of
new constitutional arrangements by unauthorised means. Marshall's criteria are:140
(i)
(ii)
whether all processes for constitutional change are locally operated;
whether in the enactment [and arguably amendment and repeal] of constitutional
provisions, legal continuity has been broken (or claims made that it has been
broken);
(iii) whether with or without (i) or (ii), the people or possibly the bench, regard the
constitution as authoritative because of acceptance of it.
Phillip Joseph and F M Brookfield have profitably applied these criteria to New
Zealand, Joseph concluding that 'the Constitution would be autochthonous according
to the first and third of Marshall's criteria'.141 Brookfield adds the temporal elements to
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138 Noted by Thomson, above n 114, 344-345, n 138. Professor Sawer's reference to a 'judicial
UDI' is to Madzimbamuto v Lardner-Burke [1968] 2 SA 284 where the High Court of Southern
Rhodesia held the usurping government (Smith's UDI) in Southern Rhodesia in 1965 to be a
'lawful' de-facto government. On appeal however, the Privy Council held that the 'rebel
regime' could not be regarded as lawful, since the United Kingdom Government was still
taking steps to regain control: [1969] 1 AC 645, 725 (Lord Reid). As Detmold has noted '[I]f
in fact the revolutionary contest had been settled on the ground in favour of the new
regime the Privy Council would have recognised it as legitimate': above n 15, 94. Marshall
has noted that 'when a Commonwealth country asserts the homegrown nature of its legal
system with Imperial approval and complicity, the sonorous label of autochthony is
attached. However, if this assertion is contentious - as in Rhodesia - it is dubbed "UDI"':
above n 11, 171.
139 This is not to downplay the role of courts. At last resort, it is the judiciary that must
recognise and thereby legitimate legal change. Witness the recognition of the illegally
convened (and constituted?) Convention-Parliament that offered the English crown to
William and Mary. Brookfield, above n 125, 165.
140 Marshall, above n 19, 58-60 (emphasis added).
141 Joseph, above n 1, 412, 414. Hogg, above n 2 has applied Marshall's criteria to Canada.
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Joseph's claim,142 but also recognises the break in legal continuity brought about by the
Constitution Act 1986 (NZ),143 referred to in the second criterion. The question of
whether similar claims might be made for the present constitutional system of
Australia is now considered.
Australia's position as measured against the Criteria
Criterion (i) 'Whether all processes for constitutional change are locally operated'.
As Joseph has stated, '[w]hether all processes for constitutional change are locally
operated ... appears to be an indicium of autonomy rather than autochthony'.144 Thus,
as argued above, to equate the popular provisions in s 128 with the achievement of
autochthony does not necessarily follow. However, even if this criterion is considered
an indicium of autochthony, I nonetheless dispute the view that s 128 is the best
measure of it. This is in view of s 128's inability to amend or alter the Constitution Act.
In other words, the location of a power to amend the Constitution - in contrast to the
power to amend all of Australia's basic constitutive documents - might not be the best
indicium of autochthony. However, since s 15(1) of the Australia Acts (admittedly in
conjunction with other provisions) can be used to amend and even repeal both the
Constitution Act and the Constitution (with the appropriate popular support), s 15(1) is
a better measure of both municipal sovereignty and autochthony.145 According to this
view, Australia has been autochthonous since 1986. However, by virtue of the state
unanimity required in s 15(1) it would be a type of autochthony based upon the federal
compact not any form of social contract giving rise to popular sovereignty.
Criterion (ii) 'Whether in the enactment of constitutional provisions, legal continuity
has been broken (or claims made that it has been broken)'.
Australia is not presently autochthonous as assessed against this criterion; legal
continuity has not been broken. However, Marshall only requires the offspring to claim
that continuity has been broken. It is not necessary to point to any specific
unauthorised enactments. This criterion seems to accommodate the Canadian
situation, where some make such a claim, but paradoxically there are no unauthorised
procedures. In Australia, unless the assertions of popular sovereignty can be seen to
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142 Brookfield, above n 126, 172. In respect of the first criterion, Brookfield cites 1947. In respect
of the third, he cites 'since the early 1970's if not well before', although not before noting
'some difficulties in the concept of acceptance'.
143 Section 26(1) of the Constitution Act 1986 (NZ) repealed inter alia the New Zealand
Constitution (Amendment) Act 1947 (Imp). Brookfield notes that New Zealand was not
authorised to conduct such a repeal, and when it did so, a legal break was secured: ibid,
171. As such, the Constitution Act 1986 (NZ) (unlike the Canada Act 1982 (UK) and the
Australia Acts) is seen as a unilateral repudiation of United Kingdom legislative power.
144 Joseph, above n 1, 412-413: 'something more is required than a locally operating
amendment process'. See also, Hogg, above n 2, 58.
145 In a recent article discussing the debate surrounding the possible methods of altering the
Constitution Act, Aroney describes the 'orthodox or conventional view' as holding that the
alteration power contained in s 128 'does not extend to the Constitution Act'. He then cites
Gageler and Leeming's suggestion, above n 123, that, as a result of s 128's deficiency, 'to be
safe one must turn to ss 51(xxxviii) and 15(1)'. See, Aroney, above n 33, 274. However,
Aroney also acknowledges two kinds of arguments that propose an extended role for s 128:
repugnancy-based arguments and theory-based arguments.
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represent such a claim, more is required. However, this criterion could be used to
explain the repeal of the Constitution Act (and a declaration of popular sovereignty) as
outlined above.146 A claim that continuity had been broken could be made, even
though the process utilised was authorised. Such a process might allow Australians to
preserve both legality and legitimacy, while at the same time achieving autochthony.
First, the use of s 15 of the Australia Acts would allow respect for the rule of law as
represented by legal continuity. Secondly, requiring state unanimity in obtaining
popular approval would allow respect for federalism and democracy. It remains to be
seen whether Australians are as unwilling to claim breaks in legal continuity as they
are unwilling to cause them.
Criterion (iii) Acceptance by acquiescence: 'Whether the bench regards the
Constitution as authoritative because of acceptance of it'.
This criterion seems to encapsulate Hart's notion of a change in the rule of
recognition.147 According to Hart, the rule of recognition 'could… change over time, in
accordance with the courts' and officials' changing attitudes towards that which should
be recognised as valid law in the legal system ... but Hart provided little insight into
how that transformation might take place'.148 Joseph noted that each legal system must
ask itself: 'What is the courts' and officials' internal viewpoint?'149 However, Hart
devotes only one paragraph to the situation where 'the unity among officials [and
courts] ... may partly breakdown'. He notes, '[i]t may be that, over certain
constitutional issues ... there is a division within the official world ultimately leading to
a division [over the content of the rule of recognition] among the judiciary'.150 All that
could be done, according to Hart, 'would be to describe the situation ... and note it as a
substandard, abnormal case containing within it the threat that the legal system will
dissolve'.151 Although Hart's strong language was directed to the constitutional crisis
that gripped South Africa in 1954,152 the 'persistent doctrinal confusion over the
sources of legitimate constitutional authority in Australia' 153 could be seen as a 'partial
failure of the normal conditions… [of] congruence…'.154
Further, it is not clear that a majority of Australians, including officials, view the
original enactment of the Constitution in the Constitution Act as merely an 'historical
fact'.155 This is despite Hart's assertions that a 'local root' is established when the
Westminster Parliament no longer has the ability to legislate for a former Dominion.156
Moreover, while it is possible to discern a majority of High Court Justices that do
_____________________________________________________________________________________
146 See above nn 121 - 139 and accompanying text.
147 Joseph has pointed out that a new attitude of courts and officials also has a connection with
Kelsen's grundnorm: above n 1, 121-122 and 398. However, it would seem that Marshall's
reasoning is more comfortably understood in Hartian terms.
149 Joseph, above n 1, 414.
150 Hart, above n 69, 122.
151 Ibid, 123.
152 See Harris v Donges [1952] 1 TLR 1245.
153 Fraser, above n 18, 215-216.
154 Hart, above n 69, 122. Even on a Kelsenian analysis, a 'lack of symmetry' may exist: Lumb,
above n 40, 6, noted by Aroney, above n 33, 270.
155 Hart, above n 69, 120.
156 Ibid.
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favour the promotion of a local root founded in popular sovereignty, unanimity is
scarce regarding the symbolic or theoretical concept of popular sovereignty worthy of
occupying the apex of the Australian constitutional system. In effect, uniform and
coherent reasoning is markedly absent from the materials and statements. As such,
'until such a position is formally taken by a clear majority of the High Court … it is
submitted that traditional legal principles should continue to be followed'.157
Criterion (iii) Acceptance by acquiescence: 'Whether the people regard the Constitution
as authoritative because of acceptance of it'.
Has there already been a peaceful legal revolution in Australia? Some lawyers now
argue that the Constitution 'was' law because of its original embodiment in a British
enactment, but because of British abdication in 1986, 'is now' law because of the
acceptance by the Australian people of the Constitution, and their preparedness to live
peaceably under it. In this sense the British Parliament is no longer regarded as
standing behind Australia's constitutional institutions.158 Professor Zines has made
this point:
'The basic constitutional instruments were law because they were enacted by a superior
law-maker. They are now law because they are accepted as fundamental legal rules of
[the] system and the basic constitutive documents of [the] community'.159
It was also made by the 1988 Constitutional Commission:160
As [the British] Parliament no longer has any authority in Australia, the legal basis of the
Constitution no longer rests on any paramount rule of obedience to that institution. The
legal theory that sustains the Constitution today is its acceptance by the Australian
people as their framework of government.
This 'acceptance' argument appears to be the second half of the argument utilised by
Deane J in Theophanous v Herald & Weekly Times Ltd,161 which embraced both 'adoption'
_____________________________________________________________________________________
157 Twomey, above n 106, 101.
158 Marshall, above n 19, 58. It would appear the modern genesis of this notion can be traced to
the horticultural comments made by Wheare about the Constitution being struck at
Westminster but then transplanted to Australia, where it has since thrived: above n 2, 108109 and also Hart, above n 69, 120.
159 Leslie Zines, Constitutional Change in the Commonwealth (1991) 27. See also, Zines, above
n 16, 318. However, Professor Zines indicates that this view does not necessarily elevate
'the People' to a fundamental legal norm: 'In other words [the Constitution] is our
fundamental law and needs no further legal justification': Zines, above n 64, 93. Similar
uncertainties that surround the legal basis of the Queensland Constitution are currently
being addressed. The Queensland Constitutional Review Commission 'believes that such
uncertainty should be brought to an end if possible… by making an unequivocal statement
that the Queensland Constitution IS the fundamental law of the State by identifying it as
the highest rule of the State's legal system': Queensland Constitutional Review
Commission, Report on the Possible Reform of and Changes to The Acts and Laws that relate to the
Queensland Constitution (2000) 24. Such a course would seem to overcome the difficulties
surrounding the 'acceptance' argument and might also be considered for the
Commonwealth Constitution.
160 First Report of the Constitutional Commission (1988), vol 1, 107.
161 (1994) 182 CLR 104, 171. In this respect Deane J seemed to follow Murphy J's reasoning in
Kirmani v Captain Cook Cruises Pty. Ltd. [No. 1] (1985) 159 CLR 351 more closely than his
own. Murphy J had stated, 383: 'The authority for the Australian Constitution then [1
January 1901] and now is its acceptance by the Australian people'.
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by referenda (to be discussed shortly) and current 'acquiescence' as the touchstones of
popular sovereignty. It is noted that Professor Zines's and the Commission's view have
the attraction of recognising the original authority of the British Parliament.162
Professor Zines's view has the further attraction of not necessarily promoting a 'norm
higher than the Constitution' itself.163 Geoffrey Lindell's view that the legally binding
character of the Constitution is now derived from the will of the people has a further
attraction. It is presented as an 'additional though not necessarily alternative, way of
explaining the binding nature of the Constitution.’164 Justice Deane's view (in
Theophanous), and Murphy J's view in Kirmani v Captain Cook Cruises Pty Ltd [No.1],165
have none of these attractions. Indeed, the correctness of Murphy J's view in Kirmani
has been questioned as being inherently and manifestly improbable.166 Moreover,
Deane J (in Theophanous) used Lindell's discussion as an alternative rather than
additional argument, which Lindell specifically cautioned against.167
As such, this whole acceptance argument is not without difficulties. Even Marshall
has noted the word 'acceptance' is ambiguous.168 Accordingly, the 'acceptance' or
'acquiescence' argument is to be given the short answer that at most it explains in
political terms - not in legal terms - why the Constitution is binding. This is so for at
least three interrelated reasons. The first reason has been consistently alluded to by
Dawson J: there is a cogent argument for maintaining a firm distinction between
'legality' and 'legitimacy'. The legal reasons for obedience to the Constitution may not
be the same as the moral reasons for obedience. As such, it is no contradiction for one
to assert that, as a matter of legal theory, the legal basis of the Constitution is its passage
through the Imperial Parliament, while at the same time one recognises that, as an
abstract proposition of political theory, one actually accepts and obeys the Constitution
because it is Australia's fundamental law.169 The motive for obeying the Constitution
(the moral justification) is to be found in the study of political obligation (the concept
of 'authority' is probably more helpful than 'sovereignty').170 However, the validity of
the Constitution is to be found in the study of legal theory supported by history. In the
language of Hart and Kelsen, the 'previous rule of recognition [or historically first
constitution] remains a necessary means to identify the content of currently valid
law'.171
Secondly, proponents of the 'acceptance' view can provide no empirical data to
confirm such an assertion. In fact there is such data existing directly rebutting the
theory: 'just under one in five Australians have some idea of what the Constitution
_____________________________________________________________________________________
162 So too does Deane J's recognition in Breavington v Godleman (1988) 169 CLR 41, 123 of 'the
past authority of the United Kingdom Parliament'.
163 Zines, above n 64, 93.
164 Lindell, above n 40, 37 (emphases added).
165 (1985) 159 CLR 351, 383.
166 Noted by Greg Craven, Secession (1986) 138. See similar criticisms in China Ocean Shipping
Co v South Australia (1979) 145 CLR 172, 181 (Barwick CJ).
167 Lindell, above n 40, 37, 44. See Lindell's recent concerns that his earlier 'additional'
explanation has been developed in a way that may impact on constitutional interpretation:
above n 16, 144.
168 Marshall, above n 19, 60. See also, Winterton, above n 16, 4 n 30.
169 See, ACTV (1992) 177 CLR 106, 181 (Dawson J). See also, Marshall, above n 19, 60.
170 See, Daley, above n 19.
171 Ibid, ch 4.1.2.
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contains ... [which] cannot amount to maintenance of the Constitution by the
acquiescence of the people'.172 It would seem that to have any credence, the acceptance
theory would need to at least show a 'bare majority of Australians' adhere to it.
Consider a question posed to Australians as to why they still considered the
Constitution as Australia's fundamental law? Some, if not many, might answer that the
Constitution was, and still is law because it had been enacted by the United Kingdom
Parliament.173 This would not be an incorrect answer.174 Thirdly, and as a corollary,
one cannot be sure that the attitude of the Australian people has changed sufficiently
to transform the rule of recognition to one based on popular acceptance.
The complexity of explaining the acceptance of the Australian Constitution has
been well noted.175 This is because the legal and political sources of constitutional
authority are not one and the same. In the United States they are, and as a result, the
notion of acceptance by a contemporary society seems especially applicable to the US
Constitution. Even though the 'We The People' of today played no part in the
adoption of the US Constitution, there is no other authoritative source to invoke but
the 'mundane adherence to the status quo'. Thus in both legal and political theory 'the
[US] Constitution is authoritative because [Americans] believe and act as if it is'.176
Criterion (iii) Adoption by referenda
Daley has noted, '[i]f the crucial characteristic of popular will is the effective power to
bring about legal change, then sovereignty must have been transferred much earlier
than the passage of the Australia Acts'.177 However, arguments that promote the
Australian populace as sovereign sometime before 1986, might represent 'very quaint
aberration[s] ... of constitutional history'.178 Indeed, such arguments can be questioned
on a number of levels. First, sponsors who assert that the popular vote approving the
draft Constitution is the legal authority of the Constitution, have to contend with
arguments that the vote was hardly popular.179 Secondly, even though the
Constitution was on one level approved by the Australian electors, such action should
only be seen as a 'mere antecedent historical circumstance'.180 The newly agreed upon
_____________________________________________________________________________________
172 George Williams, 'The High Court and the People' in Hugh. Selby (ed) Tomorrow's Law
(1995) 271, 289. See also a poll conducted by I Saulwick in 1992 which found that 33 per
cent of Australians did not even know that Australia has a written Constitution: referred to
by Stephen Donaghue, 'The Clamour of Silent Constitutional Principles' (1996) 24 Federal
Law Review 133, 146, n 87. It is admitted these figures may now be higher in light of the
media coverage surrounding the 1999 referendum.
173 Craven, above n 166, 140.
174 Also noted by Wheare, above n 2, 109.
175 Ibid, 108.
176 Allan Ides, 'Judicial Supremacy and the Law of the Constitution' (1999) 47 UCLA Law
Review 491, 505.
177 Daley, above n 19, ch 6.4.5.
178 China Ocean Shipping Co v South Australia (1979) 145 CLR 172, 181 (Barwick CJ).
179 Most women (all colonies except South Australia and Western Australia) and aboriginal
Australians were denied the right to vote: noted by Zines, above n 16, 395-396. For a recent
analysis of the categories of disqualification which plagued the franchise for the referenda,
see, Anne Twomey, 'The Federal Constitutional Right to Vote in Australia' (2000) 28 Federal
180 Craven, above n 166, 76. Indeed, in this sense Australia's claim is much less than the
referendum that approved the constitution of Eire in 1937. In that case, the approval of the
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draft document remained just that, a consensual document, until it was enacted by the
Westminster Parliament. Witness also the failure of the historic claim that the Imperial
Parliament lacked legitimacy to amend the draft Constitution. Those involved in
Federation 'were prepared to pay a real price for Imperial legitimacy',181 that is,
Colonial Office interference in the form of s 74 of the Constitution which provided for
the continuing supervision of the Privy Council over Australian Courts. Thirdly, if the
people of Australia were truly sovereign, why did they (through their representatives)
feel it necessary, in 1986, to go 'cap in hand' to request the United Kingdom Parliament
to 'pass a statute concerning them at all?'.182 The simple answer might be that
Australia's attainment of full independence was incomplete. Moreover, 'out of a
perceived need for abundant caution'183 reversion to Westminster legislation was
sought. But since 1986 more, not fewer, of Australia's constituent documents are to be
found in the statute book of the United Kingdom.184 This action, far from recognising
the popular basis of the Constitution, clearly demonstrated an acceptance of the
'legislative supremacy of the United Kingdom Parliament'.185 It further demonstrated
that a peaceful legal revolution, accepted by the Australian people, to remove such
legislative power, had not occurred any time before 1986. Fourthly, 'even if one
supposes that the people did consent to the Constitution prior to Federation, this
consent is irrelevant to obeying the Constitution today'.186
Summary of Marshall's Criteria
At first blush, it would appear each of Marshall's criteria are distinct187 and if any one
criterion is satisfied, autochthony is achieved. However, as Joseph has argued
'autochthony is most likely to be successfully asserted when all the criteria are
satisfied'.188 Therefore, the better view would be that although Australia seems
autochthonous by virtue of Marshall's criterion (i), the requirements of which are met
by s 15(1) of the Australia Acts 1986, and possibly also by virtue of criterion (iii), the
matter is inconclusive and still awaiting determination.
It might also be said that Marshall was using the term 'autochthony' in a sense
different from that employed by Wheare. Indeed, Hogg suggests '[Marshall] is really
using it as equivalent to patriation'.189 In this sense one might use Marshall's criteria to
_____________________________________________________________________________________
people 'constituted the enactment of the document': Wheare, above n 2, 94. Still further,
Australia's claim is less than that asserted in 1922 by the founders of the constitution of the
Irish Free State, who claimed they were sitting as a constituent assembly, and that the Irish
Constitution was not 'passed' but merely 'registered' by the United Kingdom Parliament,
L Kohn, The Constitution of the Irish Free State (1932) 91.
181 Daley, above n 19, ch 2.4.3, but cf Helen Irving, To Constitute a Nation (1997) 205.
182 Michael Kirby, Introduction (1996) 20 Melbourne University Law Review 949, 950.
183 Sue v Hill (1999) 163 ALR 648, 666 (Gleeson CJ, Gummow and Hayne JJ).
184 Also noted by Hogg in relation to Canada: above n 2, 54.
187 'The criteria are not synonymous': Joseph, above n 1, 412.
188 Ibid, 413: Even 'legal discontinuity is probably insufficient itself to establish a native legal
root or local grundnorm'.
189 Hogg, above n 2, 55, n 44.
2001
271
____________________________________________________________________________________
secure patriation for the Australian Constitution, but as Aroney argues ''true' or
'complete' patriation requires autochthony'.190
CONCLUSION
This article has noted an apparent confusion between autochthony and autonomy.
Some might consider it 'unsatisfactory [and symbolically inappropriate]191 for the legal
authority of the Constitution of an independent nation to be derived from an external
source'.192 However, it is certainly not intrinsically illogical nor incongruous.
Moreover, in Australia's constitutional arrangements, continued derivation does not
imply continued subordination. If there is 'no national indignity in acknowledging
legal continuity',193 one wonders why there is indignation in acknowledging legal
derivation. 'The symbolism of deriving the Constitution's authority from another
country is only superficially inappropriate. At a more mature level, such a derivation is
inevitable'.194 Furthermore, Australia's autonomous arrangements are satisfactorily
explained by this article's earlier emphasis on both complete independence and legal
continuity. After all, it has been noted that 'legitimacy emerging over time can be at
least as powerful as legitimacy expressed at a particular moment in a country's
history'.195
However, it was also concluded that the search for autochthony is firmly in the
hands of Australians. To rely on our British parent is unsatisfying and equivocal.
Similarly, to rely on the High Court is unsatisfying, disturbingly undemocratic and at
present highly confusing.196 The process should not be left to the judiciary alone to
bring Australia's constitutional and legal arrangements into line with practical realities,
even if that is thought necessary. It should involve all the constituent components of
the federation including of course the vital popular element.
Marshall's three criteria provide a guide for the attainment of autochthony.
According to Marshall's first criterion (a local amending procedure), Australia may
already be autochthonous on some level. Further, if one accepts the veracity of
Marshall's second criterion (merely claiming a break in legal continuity), autochthony
can be achieved without the necessity for a break in continuity. As such, if Australia
was to repeal the Constitution Act,197 autochthony could be secured. However, in doing
so Australians would need to claim that the effect was 'revolutionary'. This would be
_____________________________________________________________________________________
190 Aroney, above n 33, 271. Similarly Hogg concludes that 'if patriation means the securing of
constitutional autochthony' patriation has not been achieved for the Canadian Constitution:
above n 2, 55.
191 Aroney, above n 33, 271 noting Moshinsky, above n 1, 135.
192 Winterton, above n 16, 6.
193 Ibid 7.
195 Oliver, above n 90, 551, noting J Beetz, 'Reflections on Continuity and Change in Law
Reform' (1972) 12 University of Toronto Law Journal 129.
196 Winterton, above n 16, 2 has intimated that 'the outcome of constitutional litigation in the
High Court [has become] highly unpredictable'. Similarly, Professor Zines has indicated
that 'there is not… any general pattern or direction [in constitutional interpretation] at this
stage': Leslie Zines, 'The Present State of Constitutional Interpretation' in Stone and
Williams above n 106, 224-238, 238.
197 See, above nn 121-131 and accompanying text.
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despite resorting to an 'evolutionary' process that relied on a power which in ultimate
terms was externally-derived. Finally, if Australia was to declare autochthony based
upon a declaration of popular sovereignty,198 autochthony could be secured by means
of a peaceful legal revolution.199 Again 'the process is evolutionary but the effect
revolutionary'.200 The people’s withdrawal of allegiance to the current monarch would
violate the old order and institute a 'technical' break in continuity.
However, if the first criterion does not apply, and the second criterion is not
invoked, the issues may then be left to the High Court. If the traditional legal basis of
the Constitution is then to be discarded, I have argued that the federal compact should
be seen to be the substitute, not popular sovereignty.
Further, if the issues are left to the High Court, autochthony could be achieved if
the popular sovereignty thesis were 'sufficiently refined'201 (that is, clearly defined as
to a theoretical or symbolic role, and unambiguous as to the true beneficiaries) and
received the support of the majority as the legal basis of the Constitution. This would
be because of the acceptance of the 'new attitude' probably according with Marshall's
third criterion, and Hart's rule of recognition.
The essential condition to determine whether constitutional arrangements have
been annulled is the efficacy of the change. However, because of the largely
inconclusive state of the authorities at present, it is impossible to predict with certainty
whether or not the popular sovereignty revolution will succeed and if so, in what
form.202 Until the content of the Australian grundnorm or rule of recognition is finally
determined, and an Australian turtle is unequivocally installed, the Australian
elephant may no longer be sure underfoot.
_____________________________________________________________________________________
198 See, above n 132-139 and accompanying text.
199 Wade, above n 40, 191-197: a 'disguised revolution'.
200 Joseph, above n 1, 122.
202 Adapted from the judgment of Lord Reid in Madzimbamuto v Lardner-Burke [1969] 1 AC 645,
725 quoting in part Muhammed Munir CJ in The State v Dosso [1958] 2 PSCR 180, 185.
THE MILITARY CALL-OUT LEGISLATION — SOME
LEGAL AND CONSTITUTIONAL QUESTIONS
Michael Head*
Amid considerable public controversy, the Australian Labor Party combined with the
Government of Prime Minister John Howard to pass military call-out legislation
through both houses of the Commonwealth Parliament on 7 September 2000. Less than
three months after it was first announced and introduced in the House of
Representatives on 28 June, the Defence Legislation Amendment (Aid to Civilian
Authorities) Act 2000 (Cth) came into force on 12 September, when it received royal
assent by the Governor-General.
Under the amended Defence Act 1903 (Cth) (the Act), the Federal Government now
has the power to call out the armed forces on domestic soil against perceived threats to
'Commonwealth interests', with or without the agreement of a state government. Once
deployed, military officers can order troops to open fire on civilians, as long as they
determine that it is reasonably necessary to prevent death or serious injury. Soldiers
will have greater powers than the police in some circumstances, including the right to
shoot to kill someone escaping detention, search premises without warrants, detain
people without formally arresting them, seal off areas and issue general orders to
civilians.
As will be examined in some detail in this article, the legislation authorises the
Prime Minister, the Defence Minister and the Attorney-General, or 'for reasons of
urgency', one of these 'authorising ministers', to advise the Governor-General (the
Commander-in-Chief of the armed forces under the Constitution) to call out military
personnel to deal with 'domestic violence'. The term 'domestic violence' is somewhat of
an anachronism. It does not correspond to the modern sense of the phrase, which
refers to violence within homes or families. It is a vague expression, undefined
legislatively or judicially, found in s 119 of the Constitution, which provides that 'the
Commonwealth shall protect every State against invasion and, on the application of
the Executive Government of the State protect such State against domestic violence'.
Both the Government and the Labor Party proposed minor amendments in an effort
to meet certain objections from some state governments and to head off public concern
about the impact on civil liberties, but the legislation's essential content remained the
same: to authorise the use of the military to deal with civilian disturbances, including
_____________________________________________________________________________________
*
B Juris, LLB (Monash), LLM (Columbia), Coordinator, Community Law Program, Law
Faculty, University of Western Sydney. Some aspects of this article are drawn from earlier
reports published by the author on the World Socialist Web Site (www.wsws.org), see below
n 10.
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political and industrial unrest. The very fact that such legislation has been introduced
and passed suggests a bipartisan expectation in official political circles that, in the
coming period, troops will be required to deal with such disturbances that the police
forces cannot contain.
Until now, the deployment of troops within the country has been both politically
contentious and clouded by legal uncertainties. In the words of one author, although
Australia was established as a penal colony under military administration, 'with the
passage of time, the evolution of the Australian political system ensured a clear
distinction between military powers and civil powers'.1 During the 19th century,
martial law was declared several times to deal with riots and rebellions, but the last
clear exception to the military-civil division of power occurred in 1891 when the
Queensland Government used troops to help the police suppress a sheep shearers'
strike.2
This division of power was enshrined in the Constitution at federation in 1901. The
military power was handed to the Commonwealth under s 51(xxxi), the colonial
defence forces were transferred to the Commonwealth by s 69, and under s 114 the
states were forbidden to raise military or naval forces without the consent of the
Commonwealth Parliament. Residual authority over domestic law and order remained
in the hands of the states and their police forces.
The constitutional demarcation has, furthermore, become embedded in public
consciousness. Domestic use of the armed forces has become widely regarded as
conduct to be expected of a military or autocratic regime, not a democratic
government. On the only occasion since federation that a Commonwealth government
has called out the military in an urban situation — following a bomb blast outside a
regional Commonwealth Heads of Government meeting at the Sydney Hilton Hotel in
1978 — the sight of armed soldiers patrolling highways and the streets of the New
South Wales town of Bowral caused public consternation.3
THE PASSAGE OF THE LEGISLATION
Despite the historic importance of the issue, the legislation was initially introduced
without any publicity. With the support of the Opposition, the Bill was first passed
through the House of Representatives in a single day on 28 June 2000. Neither Defence
Minister John Moore nor Attorney-General Daryl Williams issued a media statement
announcing the Bill, and no reports appeared in the mass media. Just one day before
the Bill was tabled, the Government launched a public discussion paper, Defence
Review 2000, in preparation for a Defence White Paper. The document canvassed an
expanded role for the military, but made no mention of the Bill.4
Both the Government and the Opposition declared that it was necessary to have the
legislation in place before the Sydney Olympic Games. Speaking in the House of
_____________________________________________________________________________________
1
Christopher Doogan, 'Defence Powers Under the Constitution: Use of Troops in Aid of
State Police Forces — Suppression of Terrorist Activities' (1981) 31 Defence Force Journal 31.
2
Ibid 31.
3
See Tom Molomby, Spies, Bombs and the Path of Bliss (1986), and Jenny Hocking, Beyond
Terrorism: The Development of the Australian Security State (1993).
4
See Defence 2000 — Our Future Defence Force, (2000) Department of Defence,
<http://whitepaper.defence.gov.au> [accessed 27 June 2000].
2001
The Military Call-Out Legislation
275
____________________________________________________________________________________
Representatives, Labor's shadow defence minister, Stephen Martin, referred to the
Olympics as the 'catalyst' for the Bill.5 He committed the Opposition to having the Bill
passed before the Games. 'It is important that a spirit of bipartisanship be exhibited ...
on something as important as this', he told the House.
In the brief debate, references were made on both sides of the House to the need to
counter possible terrorism at the Olympics, where some 4,000 military personnel were
deployed.6 After expedited examinations by two Senate committees, whose
recommendations for minor amendments were partially adopted,7 the legislation was
ultimately passed on the last day of sitting before the 15 September opening of the
Games. Despite this haste, the Act was not invoked during the Olympics.8
The implications of the legislation go far beyond the Sydney Olympics. The Act
effects a permanent shift in the military's role. In the words of shadow attorney-general
Robert McClelland: 'These measures should not be seen as simply a short-term
measure that can be sunsetted after the Olympics. They are in themselves important
measures that are certainly required'.9 The Government and the Opposition rejected
amendments to insert a sunset clause that would revoke the legislation after the
Games.
Despite the initial lack of publicity, some media outlets began to report on the
legislation, partly because of material prepared by this author.10 Newspapers received
numerous letters protesting against the Bill, prompting a public statement from the
government. In a joint news release on 23 August, Attorney-General Daryl Williams
and Defence Minister John Moore asserted that the Bill did not change the conditions
in which the armed forces could be called out: 'State, Territory and Commonwealth
Governments have always had the power to request call out of the Defence Force in
_____________________________________________________________________________________
5
Commonwealth, Parliamentary Debates, House of Representatives, 28 June 2000, 18413
(Stephen Martin, MP, ALP).
6
See Michael Head, 'Olympic Security: Police and military plans for the Sydney Olympics —
a cause for concern' (2000) 25 Alternative Law Journal 131.
7
See Senate Foreign Affairs, Defence and Trade Legislation Committee, Defence Legislation
Amendment (Aid to Civilian Authorities) Bill 2000 (2000), The Parliament of the
Commonwealth of Australia,
<http://www.aph.gov.au/senate/committee/submissions/fadt_civbill.htm>; and Senate
Standing Committee for the Scrutiny of Bills, Alert Digest No 10 of 2000, (16 August 2000).
8
It has since been revealed, however, that elite SAS personnel were deployed undercover in
plain clothes, assisting the New South Wales police to monitor crowds during the
Olympics, without approval by the Defence Minister or federal Cabinet. Cabinet's National
Security Committee subsequently approved the deployment, without any reference to the
Act. See The Sydney Morning Herald, 9 February 2001, 6.
9
Commonwealth, Parliamentary Debates, House of Representatives, 28 June 2000, 18420
(Robert McClelland, MP, ALP).
10
See, for example, Michael Head, 'Australian government uses Sydney Olympics to
strengthen
military
powers'
(2000)
World
Socialist
Web
Site
<http://www.wsws.org/articles/2000/aug2000/olym-a05_prn.shtml>; Michael Head,
'Australian government seeks to push through revamped military call-out bill' (2000)
World Socialist Web Site <http://www.wsws.org./articles/2000/aug2000/milita29_prn.shtml>; Michael Head, 'Sydney Olympics used as 'catalyst' for permanent military
powers over civilian unrest' (2000) 25 Alternative Law Journal 192.
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Australia in rare situations where police need help to deal with an extreme
emergency'.11
In the final hours of the parliamentary debate, Labor's spokesmen, Mr Martin and
Senator John Faulkner, made similar statements. Mr Martin condemned those who had
opposed the Act 'under the guise of protecting civil liberties', adding that people had
been 'fooled by inaccurate and misleading reporting and cheap and populist politics'.12
He asserted that the legislation would not, in any way, add to the Government's power
to call out the army. Instead, Mr Martin claimed, the Bill placed new restrictions on the
use of the military.
These statements are contradicted by the legislation itself. It seeks to add both to the
government's call-out powers and to the powers of military personnel once they are
called out. It provides that the utilisation and powers of the armed forces under its
provisions shall be additional to any other lawful use of the military. The amended s
51Y of the Act states that 'this Part does not affect any utilisation of the Defence Force
that would be permitted or required, or any powers that the Defence Forces would
have, if this Part were disregarded'.13 Thus, the Act does not place new restrictions on
the use of the military, but augments the government's previous call-out powers.
Furthermore, the purpose of the legislation is to overcome definite legal and
constitutional limits and restrictions that have, combined with political considerations,
provided real constraints on the use of the armed forces in civilian settings.
Thus, s 51A of the amended Act goes well beyond the previous s 51, which
essentially mirrored s 119 of the Constitution. In the first place, the new section allows
a military call-out where the three ministers are satisfied that domestic violence is
occurring, 'or is likely to occur'. The latter phrase is an addition to s 119 and is therefore
arguably unconstitutional.
Secondly, the new section extends the call-out power to the protection of
'Commonwealth interests', regardless of whether there is a request by any state or
territory government. The new s 51A(3) provides that 'the Governor-General may
make the order whether or not the Government of the State or the self-governing
Territory request the making of the order'. This provision, in so far as it purports to
permit a military intervention without the consent of a state, also arguably contravenes
s 119, which requires state assent to the use of troops on state soil.
Section 51A(3) requires only that an authorising minister 'consult' the state or
territory government before the Governor-General makes the order. Plainly,
consultation does not mean assent. Moreover, under s 51A(3A), that proviso does not
apply if the Governor-General is satisfied that 'for reasons of urgency, it is
impracticable' to comply with it. Under s 51A(8A), an authorising minister must notify
a state government that an order has been made but 'if this is not done, the validity of
the making or revocation of the order is not affected'.
_____________________________________________________________________________________
11
John Moore and Daryl Williams, 'Further Safeguards for Defence Bill' (23 August 2000)
Department of Defence <http://www.minister.defence.gov.au//2000/22900.htm>
12
Commonwealth, Parliamentary Debates, House of Representatives, 7 September 2000, 20511
(Stephen Martin, MP, ALP).
13
The Explanatory Memorandum states that s 51Y 'makes it clear that the new process for
calling out members of the Defence Force does not in any way detract from the use of the
Defence Force that would be permitted or required under any powers that the Defence
Force would have if the new Part were not in place'.
2001
277
____________________________________________________________________________________
In seeking to by-pass s 119, as shall be discussed below, the legislation appears to
rest on a combination of other Commonwealth constitutional powers — the defence,
external affairs, incidentals, executive and Governor-General's powers — yet the
Government has not specified upon which of these powers it is relying.
Beyond the constitutional issues, the legislation is an attempt to overcome a variety
of serious legal problems. Under existing legislative provisions and the common law, if
military personnel kill or maim individuals, damage private property or interfere with
people's liberty, they could be charged with criminal offences, including murder or
manslaughter, or face civil action. Moreover, as commentators have pointed out,
soldiers could not necessarily rely on a defence of obeying superior orders.14 In
addition, military personnel lacked legislative powers to carry out searches, seizures
and arrests. That is why, when troops were called out in 1974 to guard Darwin's petrol
depots from looters after the destruction of Cyclone Tracy, General Stretton, the
commander of the Natural Disaster Organisation, stipulated that troops not carry
arms, that they be accompanied by a police officer and that the soldier's authority
would stem from a citizen's duty under common law.15
The legislation confers such potentially far-reaching powers on the Government
and the military, that the Australian Democrats' spokesperson, Senator Vicki Bourne,
appealed to the Government to agree to Parliament being re-called within two days of
a troop call-out.16 This would allow Parliament to assume political responsibility for
any such decision, she argued. Likewise, the Australian Greens' representative, Senator
Bob Brown, warned that if troops had to be brought in because a situation was so
grave that a state police force and its tactical response group were unable to handle the
crisis, 'the country would be in pandemonium. This would be a situation beyond
anything in our last 100 years of history ... surely, in that situation, the Parliament
should be recalled'.
During the final two days of debate, the Government and the Labor Party together
defeated a series of amendments from the minor parties to modify the call-out power.
One measure would have required the military to obtain judicial warrants before
searching homes. Another would have limited the right to shoot to kill a fleeing
person, similar to a restriction placed upon the Australian Federal Police, and another
would have allowed soldiers to claim conscientious objection to deployment against
civilians.
A further amendment would have required the tabling in Parliament of the
manuals and protocols that will apply to military interventions. This proposal was
raised after Senator Brown read out extracts from the then current Australian Army
Manual of Land Warfare. Section 543 of that manual instructed military personnel in
how to cover up the killing or wounding of 'dissidents'. The section stated:
Dead and wounded dissidents, if identifiable, must be removed immediately by the police
... When being reported, dissident and own casualties are categorised merely as dead or
wounded. To inhibit propaganda exploitation by the dissidents the cause of the casualties
_____________________________________________________________________________________
Peter Brett and Peter Waller, Brett and Waller's Criminal Law: Text and Cases (1983) 654.
Alan Stretton, The Furious Days (1976) 82-83.
For these debates, see Commonwealth, Parliamentary Debates, Senate, 6 September 2000,
17389 (Vicki Bourne, Senator, NSW), and Commonwealth, Parliamentary Debates, Senate, 7
September 2000, 17536 (Vicki Bourne, Senator).
14
15
16
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(for example, ‘shot') is not reported. A follow-up operation should be carried out to
maintain the momentum of the dispersing crowd.17
Responding to Senator Brown, Special Minister of State Chris Ellison said the Army
manual was 'under revision' and would be replaced with a new version once the Act
was passed. He refused, however, to give any assurance that a similar clause would
not appear in the rewritten document.
Various state governments objected to parts of the legislation because it overrides
their police powers and may cause clashes between the military and the state-run
police forces. In the New South Wales Government submission to the Senate Foreign
Affairs, Defence and Trade Legislation Committee, the Director General of the New
South Wales Cabinet Office stated that the legislation could lead to 'conflict between
State police and Commonwealth Defence Forces' and might 'override the national antiterrorist plan'. In the submission of the Victorian Department of Premier and Cabinet,
Premier Bracks declared: 'Confusion and conflict could arise between state agencies
and the Defence Force'.18
These concerns were reflected in several newspaper editorials and commentaries.
'The potential for State-Commonwealth conflict is obvious,' the Sydney Morning Herald
editorialised on 18 August. 'For example, would the Federal Government have found it
easier to use such a procedure to send troops in if it had thought the New South Wales
Police were not up to the mark at the height of the 1998 waterfront dispute?' The use of
troops in such politically-charged conditions — thousands of people joined picket lines
during the 1998 waterfront strike — may provoke controversy, the newspaper warned.
'As a rule, the States and their police — who, after all, are better trained than troops for
the job — are the ones to deal with civil disturbances'.19
Apart from providing for a state government to be 'consulted' before a call-out was
ordered, the Government and the Opposition largely brushed these reservations aside.
The final vote in the Senate was 46 to 10. When the legislation went back to the House
of Representatives for one last vote, only two independent Members of Parliament
were against its introduction.
THE HISTORICAL CONTEXT
The legislation challenges a political and legal tradition opposing the use of the
military to suppress domestic unrest — a principle that dates back to the 17th century
struggles against the absolutist monarchy in Britain. In the lead up to the English
revolution of the 1640s, the 1628 Petition of Right demanded that Charles I remove the
'great companies of soldiers and mariners [who] have been dispersed into diverse
counties of the realm … against the laws and customs of this realm and to the great
grievance and vexation of the people'. The Petition is regarded as making it
unconstitutional for the Crown to impose martial law on civilians.20 As a result of the
_____________________________________________________________________________________
17
Quoted by Senator Brown, Commonwealth, Parliamentary Debates, Senate, 6 September
2000, 17398 (Bob Brown, Senator, Tasmania).
18
For these and other submissions, see above n 7.
19
Editorial, The Sydney Morning Herald, 18 August 2000.
20
See W S Holdsworth, 'Martial Law Historically Considered' (1902) 18 Law Quarterly Review
117.
2001
279
____________________________________________________________________________________
1688 settlement between the monarchy and the parliament, the Bill of Rights declared
it illegal for the Crown to raise or keep an army without parliamentary consent.21
Doubt has surrounded the legal force of this taboo. Commenting on the public
disquiet provoked by the 1978 Bowral call-out, Blackshield referred to a longstanding
popular social tradition against the use of the armed forces within the realm in
peacetime. 'But as soon as one asks whether this social tradition is reflected in any legal
tradition that might be invoked as a constitutional restraint on the use of armed forces,
one is plunged into an esoteric maze of uncertainties'.22
In spite of the critical issues at stake, relevant judicial comment has been rare. One
exception occurred in the 1989 High Court case of Re Tracey; Ex parte Ryan,23 which
considered the constitutionality of military courts martial. Justices Brennan and
Toohey reviewed the history of the struggle for civilian supremacy over the armed
forces, and spoke of the common law's concern to ensure that the existence of the
armed forces 'as a permanent armed body under hierarchical command should not
threaten the peace and civil order of the Realm'.24
Given that the use of troops against civilians was not tested in Australia during the
20th century, the position is still regarded as based on the British law. By the early 19th
century, the emergence of mass protests fuelled by the conditions of the Industrial
Revolution caused the British authorities to resort to military suppression at times. In
the 1832 case of R v Pinney25 three officers were tried before a Grand Jury after riots in
Bristol. Two officers who had refused to order the troops to fire without a magistrate's
sanction were found guilty of neglect of duty, causing one to commit suicide. The third
officer, who had fatally shot someone during the incident, was acquitted of
manslaughter.
Some general principles were laid down by the 1893 English Report of the Select
Committee on the Featherstone Riots. Two people were killed when an infantry Captain
ordered soldiers to fire on striking coal miners and their supporters after a local
magistrate had read the proclamation from the Riot Act 1714. The Committee
exonerated the Captain and his troops, although it warned that 'officers and soldiers
are under no special privileges and subject to no special responsibilities as regards this
principle of the law'. The taking of life must be shown to be necessary and resort to
military assistance must be the 'last expedient' of the civil authorities, but when such a
call was made, 'to refuse such assistance is in law a misdemeanour'.26
In addition, notwithstanding the 1628 Petition of Right, British law was also
prepared to support recourse to the even more far-reaching imposition of martial law
if the very existence of the state were threatened by civil unrest. According to
Halsbury, martial law applies 'when a state of actual war, or of insurrection, riot, or
rebellion amounting to war, exists'.27 Martial law has been somewhat loosely described
_____________________________________________________________________________________
21
See Steven Greer, 'Military Intervention in Civil Disturbances: The Legal Basis
Reconsidered' [1983] Public Law 573.
22
AR Blackshield, 'The Siege of Bowral — The Legal Issues' (1978) 4 Pacific Defence Reporter 6.
23
(1989) 166 CLR 518.
24
Ibid, 562.
25
(1832) St Tr (1891), N S Vol 3; 5 C & P 254.
26
United Kingdom, Parl Papers Vol 17, (1893-94) 381.
27
Lord Hailsham (ed), Halsbury's Laws of England (4th ed, 1973–), vol 8(2), para 821.
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as 'the right to use force against force within the realm in order to suppress civil
disorder'.28 This formulation could justify the most dictatorial measures.
Doubt exists as to the legal basis of martial law. It is said to be either an example of
a common law right to employ force to repel force or, alternatively, a royal
prerogative.29 Despite this fundamental uncertainty, the Privy Council in the 1902
Marais case on appeal from the Cape Colony, extended the doctrine of martial law to
apply even where the ordinary civilian courts were still sitting.30
There has been no recorded case of martial law in Australia since federation in 1901
but it was invoked several times during the 19th century to suppress convicts,
Aborigines and workers.31 In his work, Emergency Powers, Lee 'hazards a guess' that
the power to resort to martial law continues in Australia as a creature of the common
law. Remarkably, Lee considers that, while legislation is generally preferable, the
doctrine of martial law should not be buried 'for in the face of an extraordinary crisis it
may come in useful… it may be better to rely on a "shadowy, uncertain, precarious
something" than nothing at all'.32
The great strike struggles of the 1890s did see troops mobilised against specific
demonstrations and gatherings, with orders to shoot to kill strikers and their
supporters. In one infamous incident, Colonel Tom Price issued the following
instruction to a volunteer unit during the extended Australian maritime strike of 1890:
Men of the Mounted Rifles, one of your obligations imposes upon you the duty of resisting
invasion by a foreign enemy, but you are also liable to be called upon to assist in
preserving law and order in the colony…To do your work faintly would be a grave
mistake. If it has to be done effectively you will each be supplied with 40 rounds of
ammunition, leaden bullets, and if the order is given to fire, don’t let me see any rifle
pointed in the air; fire low and lay them out so that the duty will not have to be performed
again.33
_____________________________________________________________________________________
28
Robert Heuston, Essays in Constitutional Law (2nd ed, 1964) 152.
29
See, for example, Halsbury's Laws of England, above n 27, para 821.
30
D F Marais v The General Officer Commanding the Lines of Communication and the AttorneyGeneral of the Colony [1902] AC 109.
31
See S D Lendrum, 'The 'Corrong Massacre': Martial Law and the Aborigines at First
Settlement' (1977) 6 Adelaide Law Review 26. See also Victor Windeyer, 'Certain Questions
Concerning the Position of Members of the Defence Force When Called Out to Aid the
Civil Power' in Robert Hope, Protective Security Review Report (1979) Appendix 9.
32
H P Lee, Emergency Powers (1984) 224. The quoted words are taken from R v Nelson and
Brand (1867) F Cockburn Sp Rep 86, where Cockburn CJ stated: 'Martial law when applied
to the civilian is no law at all, but a shadowy, uncertain, precarious something, depending
entirely on the conscience, or rather on the despotic and arbitrary will of those who
administer it.'
33
Quoted in Brian McKinlay, A Documentary History of the Australian Labor Movement, 18501975 (1979) 377. Such instructions — to 'fire low and lay them out' — are still mirrored in
the Australian Military Regulations. Regulation 421(6) specifies that: 'Care shall be taken to
fire only upon those who can be seen to be implicated in the disturbance'. Lee, above n 32,
242. Regulation 410 requires the commander of the forces to warn those present that, if the
troops are ordered to fire, the fire will be effective. Call Out the Troops: an examination of the
legal basis for Australian Defence Force involvement in 'non-defence' matters, Australian
Parliamentary Research Paper 8 (1997-98) 5.
2001
281
____________________________________________________________________________________
The turmoil of the 1890s led to s 119 being inserted in the Constitution, to allow the
military to be mobilised against an 'uncontrollable situation'.34 The expression
'domestic violence' was borrowed from article IV of the United States Constitution, s 4
of which specifies that the United States shall protect each State, on the application of
its legislature, against 'domestic violence'. The statutory embodiment of this provision
in 10 USC § 331 (1964) uses the more specific term 'insurrection', suggesting that an
extremely serious level of rebellion must be involved — one that threatens the very
existence of a state government.35
In the early years of the 20th century, Australian state governments requested
military intervention on at least six occasions, to deal with such anticipated incidents
as 'general strike riot and bloodshed', 'disturbances', wharf strike 'violence', 'labour
troubles' and the 1923 Victorian police strike. On each occasion, it seems, the Federal
Government declined on the basis that the state police were capable of dealing with the
threat (although troops were sent to guard federal buildings, including post offices,
during the Victorian police strike).36 Only one of those requests — by Queensland in
1912 — was formally made under s 119. Thus, s 119 has never been applied.
In general, the invoking of 'military aid to the civil power' has been a relatively rare
event in Australia, confined, at least as far as is known publicly, to unarmed and
peaceful use in national emergencies, such as floods, cyclones and earthquakes. With
little publicity, however, the Defence Forces do frequently provide technical and other
assistance to the state, federal and territory police forces, most commonly for
explosives disposal and logistical support.37
Troops were mobilised to break strikes on several occasions during the 20th century,
mostly by Labor governments. The Chifley Government sent in soldiers against the
coal miners’ strike of 1949, the Fraser Government used the RAAF to ferry passengers
during the 1981 Qantas strike and the Hawke Government mobilised the airforce
against striking pilots in 1989. These operations provoked bitter recriminations and
questions as to their legality.38 In a lesser known case, the Menzies Liberal
Government sent troops to break a wharf labourers' strike in Bowen, Queensland in
1953, but was forced to withdraw the soldiers after tensions involving strikers and
state police, followed by a protest by the Queensland Government.39
On several occasions, soldiers were deployed for political purposes. In 1970-71, the
Gorton Government called out troops to suppress secessionist agitation in Papua New
Guinea, then an Australian colony. Since no state government request was involved, s
119 of the Constitution could not be invoked, nor could the defence power, since
Papua New Guinea was regarded as Australian soil. It seems that on legal advice, the
_____________________________________________________________________________________
34
Blackshield, above n 22.
35
See generally M Cherif Bassiouni, The Law of Dissent and Riots (1971).
36
Lee, above n 32, 201.
37
See Call Out the Troops, above n 33, 42 — between January 1988 and September 1989, the
Australian Defence Force provided assistance to police forces on 1,518 occasions.
38
Ibid 19.
39
See Call Out the Troops, ibid 19.
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Defence Minister Malcolm Fraser insisted on the issuing of a secret Order-in-Council to
authorise the call-out, but its constitutionality remains questionable.40
The gravest political crisis came in 1975, when the Governor-General Sir John Kerr
secretly placed the armed forces on alert after dismissing the Whitlam government.41
No troops were seen on the streets, however. In 1983, the Hawke Government
authorised RAAF flights over Tasmania to photograph work being conducted by the
Tasmanian Government in breach of Commonwealth regulations and in 1989, the same
Government authorised the dispatch of troops to combat protesters at the Nurrungar
joint Australian-United States military satellite base. Both deployments generated
political controversy and legal uncertainty, particularly with regard to the potential
use of soldiers to confront demonstrators outside the Nurrungar base perimeter.42
THE 1978 CALL-OUT
The most dramatic military deployment occurred in 1978 when Prime Minister
Malcolm Fraser and the New South Wales Premier Neville Wran called out nearly
2,000 soldiers in Sydney and the New South Wales Southern Highlands town of
Bowral after the explosion outside the Commonwealth Heads of Government Meeting
at the Sydney Hilton.43 The mass media and the federal and state governments
declared that the 'age of terrorism' had arrived in Australia. Two ensuing reports by
Justice Hope44 and one by former London police chief Sir Robert Mark45
recommended a significant boost to the powers of the Australian Security Intelligence
Organisation (ASIO), the establishment of the Federal Police, wider domestic use of the
army’s Special Air Services (SAS), and the creation of 'anti-terrorist' and SWAT-style
squads in every state police force.
In addition, Crisis Policy Centres were set up to facilitate the provision of 'military
aid to the civil power'. They are police-military 'nerve centres', run by the Protective
Security Co-ordination Centre (PSCC), which includes representatives of the Prime
Minister’s National Security Council, the Office of National Assessments, ASIO and the
Australian Secret Intelligence Service (ASIS, the external intelligence service), the
military and the federal and state police.46
The Government's response to the Hilton bombing raised significant legal
questions. Two inter-related issues arose: (1) Were such interventions constitutional
and, if so, what was their precise constitutional basis? (2) What were the powers and
rules of engagement of the military personnel and the rights of civilians in relation to
_____________________________________________________________________________________
40
Ibid 13. See also B D Beddie and Stanley Moss, 'Some Aspects of Aid to the Civil Power in
Australia' (1982) Occasional Monograph No 2 (University of New South Wales Dept of
Government) 55.
41
See 'The Canberra Coup', Workers News (1976).
42
See Call Out the Troops, above n 33, 14 -18.
43
See above n 4.
44
Robert Hope, The Royal Commission on Intelligence and Security, Reports I, II, III, IV (1977);
Robert Hope, Protective Security Review Report (1979) and Appendix 9 to that report,
Windeyer, above n 31.
45
Robert Mark, Report to the Minister for Administrative Services on the organisation of police
resources in the Commonwealth area and other related matters (1978).
46
Mike Halliday, 'Crisis Policy Centres' (12, 19, 26 January 1980) Workers News Parts I, II, III.
See also Hocking, above n 3, 177.
2001
283
____________________________________________________________________________________
the military? Neither question was addressed in the two formal documents ordering
the military intervention, namely the joint statement by the Prime Minister and the
New South Wales Premier, and the Executive Order issued by the Governor-General
Sir Zelman Cowen.47
In his statement to Parliament, Prime Minister Fraser stated that the New South
Wales Premier had concurred with the call-out but had not requested it. He did not
specifically refer to s 119 of the Constitution, or explain the precise legal basis for the
call-out, instead stating:
The mechanism for the legal approach to the call-out was discussed with the Premier in
two terms: In terms of a strict request from the State, and therefore in terms of aid to the
civil power; or, secondly, in terms of the use of the Commonwealth's own authority and
responsibility to protect people against possible acts of terrorism. For various reasons as I
explained to the House I think yesterday, the second course was chosen, but the Premier
had made it perfectly clear to me that if it was thought best to pursue it through the first
mechanism, the Premier would certainly act in full cooperation.48
Three months later, after some speculation as to the legal basis for the
Government's action, the Attorney-General Peter Durack confirmed that no recourse
had been made to s 119 of the Constitution. This left several possibilities. One, asserted
by Justice Hope in his 1979 Protective Security Review,49 commissioned by the Fraser
Government, was that the Governor-General acted under s 68 of the Constitution,
which states, without qualification, that: 'The commander-in-chief of the naval and
military forces of the Commonwealth is vested in the Governor-General as the Queen’s
representative'.
Another possibility, canvassed by academic commentators, is that the Federal
Government exercised its executive power, also formally exercisable by the GovernorGeneral, under s 61 of the Constitution to ensure the 'execution and maintenance of
this Constitution, and of the laws of the Commonwealth'. References have also been
made to the Commonwealth's defence power (s 51(vi) of the Constitution), combined
with the external affairs power (s 51(xxix)), and the incidental powers (s 51(xxxix)).
Other possibilities mentioned have been an 'inherent self-protecting' power of the
Commonwealth, 'inherent law and order powers' and the Crown's prerogative power
over defence and military matters.50
A 1978 note in the Australian Law Journal observed that the Hilton bombing call-out
had 'exposed gaps, inadequacies, and uncertainties in the legal and constitutional
powers of Commonwealth and State enforcement agencies'.51
_____________________________________________________________________________________
47
For these documents, and general discussion, see Hocking, above n 3.
48
Commonwealth, Parliamentary Debates, House of Representatives, 23 February 1978, 159
(Malcolm Fraser, Prime Minister).
49
Hope, Protective Security Review Report, above n 44.
50
See 'Current Topics: Legal and constitutional problems of protective security arrangements
in Australia' (1978) 52 Australian Law Journal 296, and P H Lane, An Introduction to the
Australian Constitution (1974) 77.
51
(1978) 52 Australian Law Journal 296. Nevertheless, the author found sufficient constitutional
support for the operation in the preamble to the Order of the Governor-General calling out
the troops:
'Whereas I am satisfied, by reason of terrorist activities and related violence that have
occurred in the State of New South Wales, that it is necessary —
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Despite this lack of constitutional clarity, no legislation was introduced to provide
clear authority for military deployment. Quoting the 18th century conservative
Edmund Burke, Justice Hope called for legislation, observing that:
Use of the military other than for external defence, is a critical and controversial issue in
the political life of a country and the civil liberties of its citizens. 'An armed disciplined
body is in its essence dangerous to Liberty; undisciplined, it is ruinous to Society'. Given
that there must be a permanent Defence Force, it is critical that it be employed only for
proper purposes and that it be subject to proper control.52
Aware of the political sensitivity of the issue, the Fraser Government did not
legislate. Instead, the only relevant legislative instruments remained the Australian
Military Regulations and internal Defence Instructions, not all of which have been
made public. Part 5 of the Regulations, 'Duties in Aid of the Civil Power During
Domestic Violence', provides that a magistrate must accompany the defence forces into
an area and 'read the Riot Act' before the troops move in. This, as Members of
Parliament discussed in the House of Representatives, is now regarded in official
circles as an impossibly cumbersome procedure. The Defence Instructions (General) on
Defence Force Aid to the Civil Power remain classified documents,53 a highly
unsatisfactory situation when the implications for civil liberties are great. Of equal
concern is the fact that under the Act, the Instructions may be changed at any time
without parliamentary or public scrutiny.54
Two decades after the 1978 call-out, and taking advantage of the Olympics, the
Government has brought forward legislation that seeks to expand its military call-out
power without addressing either the constitutional doubts or the civil liberties
concerns. Just as the 1978 Hilton bombing became the occasion for claims that
Australia had entered the 'age of terrorism', various police and military authorities
claimed that the Olympics would be a 'magnet' for terrorists.55 The nature of the
legislation, however, makes it apparent that the authorities are preparing not simply
for terrorism, but for wider civil unrest that the police forces prove unable to quell.
_____________________________________________________________________________________
(a) for the purpose of safeguarding the national and international interests of the
Commonwealth of Australia;
(b) for giving effect to the obligations of the Commonwealth of Australia in relation to the
protection of internationally protected persons; and
(c) for other purposes related to those matters, to call out the Defence Forces for and in
relation to those purposes'.
To rely upon such a preamble seems dubious in the light of the Communist Party Case
(Australian Communist Party v Commonwealth (1951) 83 CLR 1). The High Court ruled
unconstitutional an attempt by the Federal Government to outlaw the Communist Party,
rejecting the Menzies Government's attempt to make its legislation valid by invoking
various heads of power in a preamble to its legislation.
52
Hope, Protective Security Review, above n 44, 142.
53
Call Out the Troops, above n 33.
54
Bayne has questioned whether the Instructions might be subject to publication
requirements under the Statutory Rules Publication Act 1903 (Cth) or be covered by s 9 of the
Freedom of Information Act 1982 (Cth) — see Peter Bayne, 'Policy guidelines and the law:
some intersections' (1991) 65 Australian Law Journal 607.
55
See my earlier article, above n 10.
2001
285
____________________________________________________________________________________
THE LEGISLATION
The amended Act allows the three authorising ministers to call out the military in three
circumstances. Where the ministers are satisfied that domestic violence is occurring or
is likely to occur, the armed forces can be used to: (1) protect Commonwealth interests,
where a State or Territory is 'not, or is unlikely to be, able to protect' those interests;56
(2) protect a State, where the State is not, or is unlikely to be, able to protect itself;57 and
(3) protect a self-governing Territory, where the Territory is not, or is unlikely to be,
able to protect itself.58 In the latter two cases, the government of the State or Territory
must first make an application, but no such restriction applies to the first case.
In each instance, neither the Emergency Forces nor the Reserves Forces can be
called out or used in connection with an industrial dispute. These provisions will not
prevent a government using the regular armed forces against strikers or as
strikebreakers, as happened in 1949, 1953, 1981 and 1989.59
Once deployed, the military forces will have wide-ranging powers that they
currently do not have in civilian situations. Under s 51I, any member of the Defence
Force will be able to:
• seize buildings, places and means of transport
• detain people
• search premises
• seize possessions.
Where these powers are exercised in connection with the recapture of a premises or
means of transport, written authority for that recapture must first be obtained from an
authorising minister, except where the member of the Defence Force 'believes on
reasonable grounds that there is insufficient time to obtain the authorisation because a
sudden and extraordinary emergency exists'.
If the three ministers declare a 'general security area' under s 51K these powers will
be expanded to include personal searches, erection of barriers and stopping means of
transport. If a 'designated area' is declared within a general security zone under s 51Q,
the powers will increase further. The military will be able to halt and control all
movements of traffic and people, issue directions to individuals and 'compel' people to
comply with directions. No criteria are specified for the declaration of general security
zones and designated areas, but the declaration of a general security area must be
published and both Houses of Parliament must be notified and recalled within six
days.
The most revealing measures are those contained in s 51T on the use of 'reasonable
and necessary force'. Soldiers will be permitted to cause death or grievous bodily harm
where they believe 'on reasonable grounds' that such action is necessary to protect the
life of, or prevent serious injury to, another person — including the soldiers involved.
Moreover, a person 'attempting to escape being detained by fleeing' may be killed or
caused grievous bodily harm if they have been called on to surrender and a soldier
_____________________________________________________________________________________
56
Defence Legislation Amendment (Aid to Civilian Authorities) Act 2000 (Cth) s 51A.
57
Ibid s 51B.
58
Ibid s 51C.
59
See above pp 6-9.
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believes on reasonable grounds that the person cannot be apprehended in any other
way.
Confronted by public hostility to its earlier unconditional endorsement of the Act,
the Labor Party moved an amendment forbidding troops to 'stop or restrict any
protest, dissent, assembly or industrial action, except where there is a reasonable
likelihood of the death of, or serious injury to, persons'. The Government added a final
clause 'or serious damage to property', which Labor accepted.
The resulting s 51G opens the way for wide use of the call-out power. Likelihood of
property damage can easily be alleged. As independent MP Peter Andren put it, 'a
rock thrown through the front door of the Crown Casino [the venue of the 2000 World
Economic Forum in Melbourne] could give rise to such a call-out'.60 As for the
likelihood of injury, that could be created by a police attack on demonstrators.
Another amendment, enshrined in s 51X, requires all members of Parliament to be
sent a report of a military call-out within seven days of it ceasing, regardless of
whether Parliament is sitting. It is difficult to imagine a more illusory form of
parliamentary scrutiny. In effect, Parliament will only have the power to rubberstamp
a military operation that has already taken place.
Section 51XA provides for an 'independent review' with members to be appointed
by the Defence Minister, or alternatively, a parliamentary committee, to examine the
use of the legislation within six months of any military call-out or, if there is no callout, within three years of the commencement of the Act. These proposals also reduce
parliamentary oversight to a postscript.
CONSTITUTIONAL DOUBTS
Doubts remain about the constitutional validity of the recent amendments to the Act,
notwithstanding the fact that a number of authorities have taken a generous view of
the Commonwealth's powers to call-out the military. I shall examine the possible
constitutional bases for the legislation and critically review the positions taken by
various authors. As noted above, in the discussion on the 1978 call-out, the relevant
sections of the Constitution are ss 51(vi) (defence), 51(xxix) (external affairs), 51(xxxix)
(incidental), 61 (executive), 68 (command of the military forces), and 119 (protection of
states). Possibly combined with prerogative powers, some or all of these powers may
give rise to an inherent power of self-protection or a 'nationhood' power.
Section 119
Section 119 provides for the Commonwealth to protect a state, on the application of the
state, 'against domestic violence'. Doubts may arise about the validity of the legislation,
or its application, even if a state applies for protection, in anticipation of unrest. One
immediate issue concerns the words 'or is likely to occur' in s 51A of the Act. On the
face of it, these words go beyond s 119. Lee61 has supported Blackshield62 in asserting
that a threat of domestic violence is sufficient to invoke s 119. In Blackshield's view,
'[t]he key word is 'protect'; and obviously one can protect against threatened, as well as
_____________________________________________________________________________________
60
Commonwealth, Parliamentary Debates, House of Representatives, 7 September 2000, 18447
(Peter Andren, Independent MP).
61
62
Blackshield, above n 22, 6.
2001
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____________________________________________________________________________________
actual, aggressions'. This proposition is not self-evident. Lee makes the straightforward
point that s 119 does not say, 'protect … against the threat of domestic violence'.
Nonetheless, Lee ultimately accepts Blackshield's assertion on the basis that s 119
also covers protection from invasion and such protection cannot wait until an invasion
has already occurred. If a threat of domestic violence were not treated in the same
manner as a threatened invasion, Lee argues, that would lead to an 'internal
inconsistency' in the construction of s 119. This argument is also flawed. Section 119
does not speak of protection against the threat of invasion either. If an invasion is
threatened, there is likely to be palpable evidence in the form of military preparations.
In that sense, the invasion will be underway already. This may not be so in the case of
domestic violence. Moreover, a government might be more tempted to use the mere
possibility of a disturbance to justify military repression.
A more fundamental issue is whether the Federal Government can act to protect a
state without a state application, that is, outside or in breach of the express
precondition provided by s 119. According to the 1978 Australian Law Journal note
referred to earlier, '[o]ne can read into s 119 the implication that the Commonwealth is
at all times authorised to protect itself, as distinct from the States, against domestic
violence'.63 Precisely how that implication arises was not explained. On the contrary, s
119 expressly states that a military call-out must be requested by a State.
External affairs power — section 51(xxix)
The external affairs powers may validate the legislation or its application where
'domestic violence' arises that threatens an aspect of foreign policy, diplomatic
relations,64 a commitment under an international treaty or persons whom the
Australian Government is obliged to protect.65 In the case of the 1978 call-out, the
Hilton bomb blast affected a meeting of heads of government, who were defined as
'internationally protected persons' under the Prevention and Punishment of Crimes
Against International Protected Persons Convention, which had been implemented by
the Crimes (International Protected Persons) Act 1976 (Cth). This power would not apply,
however, to a call-out where no such persons or foreign policy interests were involved.
Defence power — section 51(vi)
The defence power's scope in relation to internal security has not been specifically
considered by the High Court. Instead, in the words of the Australian Law Journal note,
commentators have engaged in the 'not very satisfactory process of elastically
stretching certain of the dicta of Judges' in the Australian Communist Party v
Commonwealth66 and Marcus Clark & Co Ltd v Commonwealth.67
According to s 51(vi), the Commonwealth Parliament may legislate with respect to:
'The naval and military defence of the Commonwealth and of the several States, and
the control of the forces to execute and maintain the laws of the Commonwealth'.
Most conjecture regarding internal security has focussed upon the second part of
the section. The same Australian Law Journal note asserted that the words 'control of the
_____________________________________________________________________________________
63
64
R v Sharkey (1949) 79 CLR 121.
65
Commonwealth v Tasmania (1983) 158 CLR 1.
66
(1951) 83 CLR 1 ('Communist Party Case').
67
(1952) 87 CLR 177.
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forces to execute and maintain the laws of the Commonwealth' could extend 'to the
preservation of general law and order so far as such order may be disturbed by general
disobedience to the laws of the Commonwealth'.68 Such a proposition is so broad that
it could apply to any 'general' breach of a federal law, say, for example, an election
boycott.
It is submitted that, given the clear federal-state demarcation drawn in the
Constitution, the traditional distinction between military and police powers and the
general principle of retaining the residual powers of the states, no such wide reading is
warranted.
In his book Emergency Powers, Lee also takes a wide view of the defence power,
although he does not consider the issue at length.69 He notes that Justice Hope
concluded that interference with a Commonwealth interest would generally involve a
breach of a Commonwealth law, such as postal, crimes or electoral legislation, but also
asserted that other valid Commonwealth interests might exist that are not protected by
statute.70
Lee quotes Dixon J’s dictum from the 1949 sedition case, R v Sharkey,71 where Dixon
J cited Quick and Garran’s annotated Constitution of the Australian Commonwealth as
follows:
The maintenance of order in a State is primarily the concern of the State, for which the
police powers of the State are ordinarily adequate. But even if the State is unable to cope
with domestic violence, the Federal Government has no right to intervene, for the
protection of the State or its citizens, unless called upon by the State Executive. If,
however, domestic violence within a State is of such a character as to interfere with the
operations of the Federal Government, or with the rights and privileges of federal
citizenship, the Federal Government may clearly, without a summons from the State,
interfere to restore order. Thus if a riot in a State interfered with the carriage of the
federal mails, or with interstate commerce, or with the right of an elector to record his
vote at federal elections, the Federal Government could use all the force at its disposal,
not to protect the State, but to protect itself. Were it otherwise, the Federal Government
would be dependent on the Government of the State for the effective exercise of its
powers.72
Several points must be made about this passage. Firstly, before quoting it, Dixon J
made the following observation:
Just as 'none of' the enumerated subjects with respect to which the Parliament may make
laws 'relate to that general control over the liberty of the subject which must be shown to
be transferred if it is to be regarded as vested in the Commonwealth' (Attorney-General for
the Commonwealth v Colonial Sugar Refining Co. Ltd. (1914) AC, at p 255; 17 CLR 644, at p
654), so none of such subjects relate to public order, to the control of what is written,
spoken or published, to the limits upon freedom of expression, to the maintenance of the
King's peace or to social order. Section 119 of the Constitution provides that the
Commonwealth shall protect every State against invasion and, on the application of the
Executive Government of the State, against domestic violence. The reference to invasion
explains the words 'and of the several States' in s 51 (vi), the defence power. But what is
_____________________________________________________________________________________
68
69
Lee, above n 32.
70
See Hope, Protective Security Review, above n 44, 151.
71
(1949) 79 CLR 121.
72
(1949) 79 CLR 121, 151.
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____________________________________________________________________________________
important is the fact that, except on the application of the Executive Government of the
State, it is not within the province of the Commonwealth to protect the State against
domestic violence. The comments made by Quick & Garran in Constitution of the
Australian Commonwealth bring out clearly the distinction between matters affecting
internal order and matters, which though in one aspect affecting internal order, concern
the functions or operations of the Federal Government.73
Thus, Dixon J cited Quick and Garran to emphasise that the Commonwealth had no
specific power to interfere with individual liberty, regulate public order, limit freedom
of expression, uphold civil peace or maintain social stability — these being matters
reserved for the States. The power of the Commonwealth would only extend to
protecting the functions or operations of the national government.
By seeking to authorise a military call-out to protect 'Commonwealth interests',
without defining or limiting these interests, the recent amendments to the Act may
well exceed this power by intruding into the very realms delineated by Dixon J.
Incidental power — section 51(xxxix)
After citing Quick and Garran, Dixon J also emphasised that the incidental power (the
express form of which is found in s 51(xxxix) of the Constitution)74 could not be
utilised to alter the federal-state demarcation. He stated:
The power to legislate with respect to incidental matters has always been applied flexibly
and liberally, as it must in a Constitution, but it cannot authorize legislation upon matters
which are prima facie within the province of the States upon grounds of a connection with
Federal affairs that is only tenuous, vague, fanciful or remote.75
I suggest that two inter-related conclusions follow. Firstly, a military call-out will
only be valid in the event of interference with a clear, specific and identifiable
Commonwealth function under the Constitution. Secondly, the incidental power
cannot be used to intrude into the arena of domestic policing, which is clearly within
the province of the States.
Executive power — sections 61 and 68
Section 61 vests the executive power in the monarch, exercisable by the GovernorGeneral and s 68 specifically vests the command of the naval and military forces of the
Commonwealth in the royal representative, the Governor-General. Lee asserts,
somewhat tentatively, that '[a] reading of s 61 and s 68 would suggest some legal basis
to justify the assertion that the power to invoke military aid unilaterally is also an
attribute of the executive power'.76
Lee also argues that s 61 encompasses a judicially-recognised royal prerogative,
referring to two Privy Council cases. In Chandler v Director of Public Prosecutions,77 Lord
_____________________________________________________________________________________
73
(1949) 79 CLR 121, 151
74
For the implied form of the power see Grannall v Marrickville Margarine Pty Ltd (1955) 93
CLR 55, 77.
75
(1949) 79 CLR 121, 151. See also Richard Lumb, The Constitution of the Commonwealth of
Australia Annotated (1986) 210-2, where it is argued that the incidental power extends to the
enactment of legislation that prohibits conduct directed against the Commonwealth, such
as treason, treachery, sabotage, sedition and espionage.
76
77
[1964] AC 763, 800.
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Hodson stated: 'The Crown has, and this is not disputed, the right as head of State to
decide in peace and war the disposition of its armed forces'. In Burmah Oil Co Ltd v Lord
Advocate,78 Lord Reid said: 'There is no doubt that control of the armed forces has been
left to the prerogative … subject to the power of Parliament to withhold supply and
refuse to continue legislation essential for the maintenance of a standing army'.
It is remarkable that, some three centuries after the struggle for parliamentary and
civilian supremacy over the British monarchy — and in a political system that
professes to be democratic — the power of the government to call out the military is
said to rest on vestiges of regal authority.
Moreover, there is the problem, as Lee acknowledges, that these Privy Council
cases relate to unitary systems of government. Under the Australian Constitution, the
prerogative power must be 'divided' along federal-state lines. Lee argues that because
s 114 of the Constitution forbids the States from raising or maintaining any naval or
military force without the consent of the Commonwealth Parliament, 'the Crown' in
the military context can only mean the federal executive power. But how is the
prerogative divided when a State request is required under s 119?
Furthermore, even if it is now accepted that the executive power extends beyond
the express grant of legislative power set out in s 51 of the Constitution,79 in a critical
passage in Victoria v Commonwealth & Hayden ('AAP Case'),80 Mason J pointed out that
the scope of the executive power was not unlimited:
In the words of s. 61, the executive power of the Commonwealth 'extends to the execution
and maintenance of this Constitution, and of the laws of the Commonwealth'. Although
the ambit of the power is not otherwise defined by Ch. II it is evident that in scope it is
not unlimited and that its content does not reach beyond the area of responsibilities
allocated to the Commonwealth by the Constitution, responsibilities which are
ascertainable from the distribution of powers, more particularly the distribution of
legislative powers, effected by the Constitution itself and the character and status of the
Commonwealth as a national government. The provisions of s. 61 taken in conjunction
with the federal character of the Constitution and the distribution of powers between the
Commonwealth and the States make any other conclusion unacceptable. Moreover, it is a
view of the executive power which is confirmed by the past decisions of this Court (see
The Commonwealth v. Colonial Combing, Spinning and Weaving Co. Ltd. ('the Wooltops Case');
The Commonwealth v. Australian Commonwealth Shipping Board).
'Nationhood'
In the AAP Case81 and New South Wales v Commonwealth,82 Barwick CJ sought to
present the royal prerogative in modern clothing by referring to sovereignty that is
'inherent in the fact of nationhood and of international personality' and derives from
'the very formation of the Commonwealth as a polity and its emergence as an
international State'.
Mason J stated that the incidental power could add a 'further dimension' and that
the Commonwealth enjoyed certain implied powers but cautioned that these implied
_____________________________________________________________________________________
78
[1965] AC 75, 100.
79
See, for example, Mason CJ, Deane and Gaudron JJ in Davis v The Commonwealth (1988) 166
CLR 79, 92-3.
80
(1975) 134 CLR 338
81
Ibid 361-2.
82
(1975) 8 ALR 1, 15-17.
2001
291
____________________________________________________________________________________
powers did not extend beyond 'internal security and protection of the State against
disaffection and subversion':
However, in ascertaining the potential scope of the power there are several important
considerations which need to be kept steadily in mind. First, the incidental power
contained in s. 51 (xxxix.) taken in conjunction with other powers, notably s. 61 itself,
adds a further dimension to what may be achieved by the Commonwealth in the exercise
of other specific powers. So in Burns v. Ransley and The King v. Sharkey, ss. 24A, 24B and
24D of the Crimes Act 1914-1946 (Cth) were held to be supported by the combination of ss.
51 (xxxix.) and 61. Secondly, the Commonwealth enjoys, apart from its specific and
enumerated powers, certain implied powers which stem from its existence and its
character as a polity (Australian Communist Party v. The Commonwealth). So far it has not
been suggested that the implied powers extend beyond the area of internal security and
protection of the State against disaffection and subversion. But in my opinion there is to
be deduced from the existence and character of the Commonwealth as a national
government and from the presence of ss. 51 (xxxix.) and 61 a capacity to engage in
enterprises and activities peculiarly adapted to the government of a nation and which
cannot otherwise be carried on for the benefit of the nation.
In the context of arguably beneficial Commonwealth activity such as scientific
research and public health, Mason J suggested a flexible approach to the functions
considered to be constitutionally appropriate for a national government, but again
cautioned against an interpretation that would radically transform federal-state
relations:
However, the executive power to engage in activities appropriate to a national
government, arising as it does from an implication drawn from the Constitution and
having no counterpart, apart from the incidental power, in the expressed heads of
legislative power, is limited in scope. It would be inconsistent with the broad division of
responsibilities between the Commonwealth and the States achieved by the distribution
of legislative powers to concede to this aspect of the executive power a wide operation
effecting a radical transformation in what has hitherto been thought to be the
Commonwealth's area of responsibility under the Constitution, thereby enabling the
Commonwealth to carry out within Australia programs standing outside the
acknowledged heads of legislative power merely because these programs can be
conveniently formulated and administered by the national government.
These considerations weigh all the more heavily in the context of any infringement
on democratic rights such as free speech, and the freedom to assemble and protest.
Commenting on the Bowral call-out, Blackshield concluded that the Government
invoked this 'nationhood' principle to rely upon a vague notion of national security.
'Since almost any social controversy can nowadays be injected with "national security"
implications, it would seem that a way has been found of circumventing Section 119
and intervening in State affairs whenever the Commonwealth chooses'.83 The
arbitrariness and potential breadth of such assertions of 'national security' presents real
dangers to civil liberties and democratic rights.
Using Mason J's dictum as a guide, a 1997-98 Parliamentary Library Research
Paper84 reviewed the history of military call-outs in Australia, including the 1949
coalminers' strike; the 1953 Bowen waterfront stoppage; the 1971 Qantas strike; the
1978 Hilton bombing; the 1989 airline pilots' strike and the 1989 deployment of troops
_____________________________________________________________________________________
83
Blackshield, above n 22, 6.
84
Call Out the Troops, above n 33.
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against anti-war protestors at the Nurrungar military base. With the possible exception
of the 1953 Bowen confrontation, it concluded that the operations were valid as
protecting essential Commonwealth interests, even if the constitutional grounds were
not made clear at the time.
Inherent power of self-protection
Lane has suggested the conclusion that 'there is also an inherent self-protecting power
in the Federal Government, as there is in any sovereign state', and therefore 'the
Government could use the armed forces to maintain law and order and the running of
the government'.85 This proposition would not even require an infringement of a
federal law to justify a troop call-out.86
Dixon J’s comments in the Communist Party Case are regarded as providing the relevant
principle:
It is within the necessary power of the federal government to protect its own existence
and the unhindered play of its legitimate activities. And to this end, it may provide for
the punishment of treason, the suppression of insurrection or rebellion and for the
putting down of all individual or concerted attempts to obstruct or interfere with the
discharge of the proper business of government.87
Even applying this test, however, it is questionable whether an incident — say a
protest or a bomb scare — at the Sydney Olympic Games would have in fact
endangered or obstructed either the 'execution and maintenance of the Constitution' or
'the discharge of the proper business of government'.88
The Constitutional 'mesh'
In Re Tracey; Ex parte Ryan,89 Brennan and Toohey JJ reaffirmed the principle that a law
may be declared invalid if its scope or application potentially exceeds the Constitution:
The submission was colourfully put on behalf of the Commonwealth that if the
Parliament has power to cast the legislative net, the fact that the net catches more fish
than the Parliament is entitled to take is irrelevant. The answer to this submission lies in
the true scope of the principle on which it is founded. The principle is applicable when
the Court is engaged in characterizing a law. Such an examination involves the operation
of the law in the circumstances to which it applies. If the law is found to comprehend
cases which have no connection with the subject-matter, that is a factor which affects the
character attributed to the law. To adopt the fishing metaphor, the power to cast the
legislative net depends on the mesh of the net.90
In the case of the military call-out legislation, it is submitted that the net has been
cast too wide, with the mesh designed to catch cases that have no sufficient connection
with the inherent functions of the Commonwealth. Both Dixon J in the Communist
_____________________________________________________________________________________
85
From P H Lane, An Introduction to the Australian Constitution (1974) 77.
86
Justice Hope in his Protective Security Review, above n 44, 27-30, also supported the notion
of an inherent executive power of self-protection, as did Isaacs J in The King v Kidman (1915)
20 CLR 425, an opinion quoted with approval by Fullagar J in the Communist Party Case
(1951) 83 CLR 1, 259.
87
(1951) 83 CLR 1, 188, citing Black's American Constitutional Law (2nd ed, 1910). See also
Doogan, above n 1, 33.
88
See generally Hocking, above n 3.
89
(1989) 166 CLR 518.
90
Ibid 568.
2001
293
____________________________________________________________________________________
Party Case and Barwick CJ in the AAP Case, spoke in terms of self-protection or selfpreservation of the Commonwealth, not mere interference with its interests. As
Johnston has observed, there is no definite judicial endorsement of the claim that the
Commonwealth's power can extend beyond protecting itself against serious threats to
its existence.91
LEGAL LIABILITY
If the Act survives constitutional challenge, doubts will remain about aspects of the
criminal and civil liability of military personnel in some circumstances, particularly if a
state government or its police force have differences with the military call-out, leading
to a lack of cooperation. Despite the wide powers that the Act grants to military
personnel, it is not clear that the Act covers every instance in which an officer or
soldier might otherwise be exposed to criminal liability or civil actions for assault,
battery or false imprisonment. The Act itself does not specifically purport to provide a
blanket legal protection, nor does it follow Justice Hope's recommendation that
military personnel on call-out be granted the legal status of police officers.
In so far as the Act purports to expand the military call-out power beyond the
common law, the traditional canons of statutory interpretation provide that a court
should presume that the Act is not intended to deprive members of the public of their
civil liberties.
Moreover, there is the issue of military commanders or individual soldiers whose
actions breach the provisions of the Act. Many of the powers exercisable under the Act
are subject to 'reasonable grounds' provisions. In addition, under s 51S members of the
Defence Force exercising powers under the legislation must wear uniform and
identification.
Section 51W provides that:
If, before, during or after exercising power under Division 2 or 3 or this Division, a
member of the Defence Force fails to comply with any obligation imposed under any of
those Divisions that relates to the exercise of the power, the member is not, or is taken not
to have been, entitled to exercise the power.
The dilemma identified by Brett and Waller may still therefore arise:
The hardship upon soldiers is, that if a soldier kills a man in obedience to his officer's
orders, the question whether what was done was more than was reasonably necessary to
quell civil disturbance has to be decided by a jury, probably on a trial of murder.
Whereas, if he disobeys his officer's orders to fire because he regards them as unlawful,
the question where they were unlawful as having commanded something not reasonably
necessary would have to be decided by a court-martial upon the trial of a soldier for
disobeying orders, and for obvious reasons the jury and the court-martial are likely to
take different views as to the reasonable necessity and therefore as to the lawfulness of
such an order.92
Since Re Tracey, it has been reasonably clear that the defence power cannot be used
to exempt military personnel from the general criminal and civil law for conduct for
_____________________________________________________________________________________
91
Peter Johnston, 'Re Tracey: Some Implications for the Military-Civil Authority Relationship'
(1990) 20 Western Australia Law Review 73, 79.
92
Brett and Waller, above n 14, 654.
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which they have already been tried for a 'service offence' under military law.93 Five
members of the High Court in that case held invalid provisions of the Defence Force
Discipline Act 1982 (Cth) that sought to do so, insisting that, after reviewing the history,
a soldier remains a citizen and liable to the ordinary criminal law.
In conclusion, the Act, as amended in 2000, provides even less certainty and
protection for civil liberties than the previous obscure mixture of common law,
delegated legislation and constitutional doctrine. However unsatisfactory the old legal
morass, some underlying common law constraints on military power survived. The
only thing made more certain by this legislation is that politicians of both major parties
have combined to seek to expand military power. Whether that bid has been successful
remains to be seen.
_____________________________________________________________________________________
93
See Re Tracey; Ex parte Ryan (1989) 166 CLR 518.
COMMENT AND BOOK REVIEW
THE HIGH COURT – LEGITIMACY AND CHANGE:
REVIEW ESSAY: HAIG PATAPAN, JUDGING DEMOCRACY –
THE NEW POLITICS OF THE HIGH COURT OF AUSTRALIA.
Andrew Lynch*
INTRODUCTION
In the last ten years, the position of the High Court of Australia has undergone a
remarkable transformation. The course of its decisions handed down from the early
1990s and the innovative, yet often perplexing, methodology upon which those
decisions rested have garnered for the Court unprecedented attention and sparked a
reconsideration of its place in the Australian polity. On many occasions this has taken
the form of harsh criticism of the Court and its judges from representatives of the other
arms of government and the media.1 In response to this barrage of criticism, and in
light of the Commonwealth Attorney-General's sustained disinclination to fulfil his
traditional role in representing and defending the judiciary,2 the High Court has
increasingly been forced to justify its role and method – to a much more pronounced
extent than at any earlier time in its history.
The moves by the High Court to do this have taken a number of different forms.
The letter written by Chief Justice Brennan to the Acting Prime Minister in 1997 at the
_____________________________________________________________________________________
*
Lecturer, Faculty of Law, University of Technology, Sydney. I wish to thank Mr Lawrence
McNamara and Professor George Williams for their very helpful comments and
suggestions on earlier drafts of this article. In respect of the comments made concerning
Chief Justice Gleeson's support for 'strict and complete legalism' I also wish to
acknowledge the role of discussions held with the Jurisprudence students at UTS in Spring
semester, 2000 in stimulating some of the ideas contained herein. I alone am responsible for
any flaws in this article.
1
Examples of such criticism are summarised in Michael Kirby, Through the World's Eye,
(2000) 157-160.
2
Most recently given voice in Daryl Williams, 'Judges must conduct their own defence' The
Australian Financial Review (Sydney), 27 April 2001, 57.
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height of the public onslaught against the Court is but one notable example.3 Members
of the Court have spoken out in numerous fora, seeking to explain the true nature of
their role and illuminate the judicial method.4 In the efforts to defend itself, the High
Court has made it clear that it is not suggesting that it is to be free of all criticism –
rather it asks for less political vitriol and for more 'informed criticism'.5 It is in response
to this invitation that Haig Patapan has produced Judging Democracy: The New Politics of
the High Court of Australia.6
Judging Democracy is a remarkable book for several reasons. It is an intelligent
evaluation of the High Court's signature work across the 1990s that never loses sight of
the broader institutional framework in which the Court resides. As such, it represents a
critique far removed from the outcome-obsessed sound-bites of politicians heard at the
times when some of the Court's major decisions were handed down. Consequently, it
is a more balanced and effective, and occasionally much more damning, assessment of
the High Court across this period. Not the least of his many achievements in this book,
is Patapan’s presentation of 'informed criticism' in accessible and elegant prose. The
book may therefore receive a wider audience than the delegates at a legal conference or
the readers of law journals.
Those seeking clarification of the case law establishing implied rights (chapter 3)
and native title (chapter 5) – probably the two most contentious areas explored by the
Court in the last decade – will be treated to a lucid and rigorous exposition of the
relevant judgments which seeks to examine their theoretical bases. Of course, this
exercise is an eminently valuable one in itself and one which, on the whole, Patapan
achieves with considerable adroitness. But it is the book's more ambitious aim as
indicated by its subtitle that will secure it a lasting and significant place in the
literature devoted to understanding the High Court of Australia.
_____________________________________________________________________________________
3
See Kirby, above n 1, 159-60.
4
Sir Gerard Brennan, 'The State of the Judicature' (Paper presented at the 30th Australian
Legal Convention, Melbourne, 19 September 1997)(copy on file with author); Michael
Kirby, 'Attacks on Judges: A Universal Phenomenon' (Paper presented at the American Bar
Association, Maui, Hawaii, 5 January 1998)(copy on file with author); Michael Kirby,
'Judicial Activism' (1997) 27 Western Australian Law Review 1; Murray Gleeson, 'Legal Oil
and Political Vinegar' (Paper presented at the Sydney Institute, Sydney, 16 March 1999)
(copy on file with author); Murray Gleeson, 'Judicial Legitimacy' (Paper presented at the
Australian Bar Association Conference, New York, 2 July, 2000) (copy on file with author);
Murray Gleeson, Boyer Lectures 2000 – The Rule of Law and the Constitution (2000); Murray
Gleeson, 'Occasional Address' (Paper presented at Griffith University, Brisbane, 20 April
2001) (copy on file with author); Michael McHugh, 'The Judicial Method', (1999) 73
Australian Law Journal 37; Kenneth Hayne, 'Letting Justice be Done Without the Heavens
Falling' (Paper presented as the Fourth Fiat Justitia Lecture, Monash University,
Melbourne, 21 March 2001) (copy on file with author); John Toohey, ''Without Fear or
Favour, Affection or Ill-Will': The Role of Courts in the Community' (1999) 28 Western
Australian Law Review 1. Perhaps the most memorable and publicly accessible attempt by
the Court to present itself and its work for scrutiny was the participation of Chief Justice
Brennan and Justices Toohey, Gaudron, Gummow and Hayne in a television documentary:
The Highest Court, ABC, nationally broadcast 9.30pm, 26 May 1998.
5
Michael Kirby, 'Shocking level of civics ignorance', The Sydney Morning Herald (Sydney), 16
August 1997, 5.
6
Haig Patapan, Judging Democracy: The New Politics of the High Court of Australia (2000) xi.
2001
The High Court – Legitimacy and Change
297
____________________________________________________________________________________
In his introductory chapter, Patapan considers the wider ramifications of the
Court's recent forays into the areas of rights, citizenship, indigenous culture and
government when he states:
[I]f the High Court is now willing to, in effect 'judge democracy', we are compelled to ask
whether its constitutional interpretations and common law decisions evince a coherent
and comprehensive democratic vision of the Australian polity. Or are its decisions ad hoc,
determined by the litigation before it, subject to the contingencies and exigencies of the
Court as an institution influenced and limited by the discretion of individual judges, and
constrained by the very process of adversarial adjudication?7
It is a fascinating question and one that provides the ensuing exploration of
particular topics with a thematic drive sustained across the span of the book. Thus, the
book operates in these two senses – discrete coverage of particular aspects of the High
Court's recent work and also as an analysis of the Court's guiding jurisprudence across
the Mason and Brennan eras. As a concerted whole, Judging Democracy invites
reflection upon the role of the High Court and the parameters of judicial legitimacy –
topics which have not lost their importance since the arrival of Murray Gleeson as
Chief Justice in 1998. That the controversy surrounding the outcome of some of the
High Court's high-profile decisions in the last decade prompted fresh discourse about
the Court's operations and place in the Australian political landscape is not so
surprising. Now that conversation has begun to move on from the noisy clamour
which reached its zenith in 1997, the time is ripe for a sophisticated yet accessible
appraisal of the recent methodology of the High Court and suggestions as to where
this is likely to take the Court as it enters its second century.
METHODS OF INTERPRETATION
Patapan begins his evaluation of the High Court with an examination of the principles
of interpretation which it has employed across its history (chapter 2). This is a logical
starting point as the question of interpretation goes to the essence of how the Court
perceives its role and also the nature of the Australian polity.8 It also enables Patapan
to preface some of the underlying issues which are to surface in the more specific
chapters that follow. Finally, his observations on the diversity of interpretative method
are an important early salvo on the core issue of the nature of the Court's democratic
vision.
The Engineers Case, Legalism and Implications
Inevitably, the discussion begins with the impact of the Engineers Case.9 The Court's
decision in that case to turn away from a practice of reading of the Constitution in light
of the social and political circumstances of its origin is portrayed by Patapan as a
return to the self-understanding of the declaratory theory that had dominated the
operation of the common law and enabled a degree of discretion without seeming to
contradict the sanctity of the rule of law.10 The assertion of the Engineers Case that the
‘political’ and ‘legal’ were distinct and that the High Court's role as adjudicator was to
_____________________________________________________________________________________
7
Ibid 6.
8
Ibid 10.
9
10
Patapan, above n 6, 13-14.
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be confined to the domain of the latter certainly secured the Court's legitimacy over the
following decades.
There are two matters to note in respect of this. First, the decision in Engineers is
itself a vital expression of the Court's politics. The point has been made elsewhere that
the reasoning in Engineers relies, at least in part, upon an appreciation of the doctrine
of responsible government and the common sovereignty of the British Empire.11 As
Patapan makes clear, the decision conveyed the Court's respect for parliamentary
sovereignty as a guiding principle of the Australian regime – thus justifying a selfimposed restriction to matters characterised as legal.12 This point is most starkly
illustrated by the discussion of notions of citizenship in chapter 4. It is here that
Patapan demonstrates the resilience of parliamentary sovereignty through his
consideration of the decisions of McKinlay13 and McGinty v Western Australia14 wherein
the majority of the Court is unwilling to read s.24 of the Commonwealth Constitution
in such a way that would impose its own understanding of the requirements of
representative democracy upon the Parliament. Instead, the adoption of a 'neutral and
natural reading of the text assumes a political and theoretical conception of
parliamentary and progressive democracy'.15
Second, while the method set forth in Engineers did indeed direct attention upon the
legal in place of the political in order to secure the Court's legitimacy within the
Australian system of governance, it is disappointing to see Patapan slip into a
simplistic treatment of the interpretative legacy of Engineers. In particular, inadequate
attention is given to the operation of implications within the legalistic method. This is
illustrated particularly well by the following passage:
A 'natural' reading of the text distinguished and characterised the legal method and was
the essence of legal reasoning. Therefore a literal reading of the text justified judicial
authority in Australia. In contrast, the resort to 'implications' betrayed an attempt to
augment a clear legal reading with personal preference or opinion – it marked a
movement from the legal to the unbounded political.16
This is a regrettable statement for several reasons. First, it glosses over the fact that
the objection to the original High Court's use of the reserved state powers doctrine17
and the immunity of instrumentalities doctrine18 was not simply that they were
implied, but that they were implications drawn from political necessity. This distinction
actually supports with greater clarity the point that Patapan is making about the
change in interpretation represented by the Engineers decision. The use of implications
arising from the text or structure of the Constitution itself was expressly left open in
Engineers19 and confirmed subsequently20 - a point which Patapan assumes without
comment in his subsequent handling of implied rights.21
_____________________________________________________________________________________
11
George Williams, Human Rights under the Australian Constitution (1999) 76; RTE Latham,
'The Law and the Commonwealth' quoted in Tony Blackshield and George Williams,
Australian Constitutional Law & Theory – Commentary & Materials (2nd ed, 1998) 243.
12
Patapan, above n 6, 17.
13
Attorney-General (Cth); Ex rel McKinlay v Commonwealth (1975) 135 CLR 1.
14
McGinty v Western Australia (1996) 186 CLR 140.
15
16
Ibid 16.
17
R v Barger (1908) 6 CLR 1.
18
D'Emden v Pedder (1904) 1 CLR 91.
19
Above n 9, 155, (Knox CJ, Isaacs, Rich and Starke JJ).
2001
299
____________________________________________________________________________________
Second, and more crucially to Patapan's overall purpose, the question of
implications and their acceptability within legal method is important, given that much
of the recent criticism of the High Court stemmed from a failure to appreciate this
particular aspect of its work. A clear picture of the role of implications must be drawn
if the reader is to appreciate the purported limitations, yet practical flexibility, of the
legalist method - and thus to grasp the points which Patapan is seeking to make about
a shift in interpretation. The ability of the High Court to justify implications within a
method of interpretation that prides itself on exclusion of non-textual concerns owes
much to the old declaratory theory of the common law22 and was nicely typified by the
claim of Windeyer J that the High Court's 'avowed task is simply the revealing or
uncovering of implications that are already there'.23
While not wishing to dispute the emphasis which Patapan gives to the importance
of the admissions of the High Court's law-making role which surfaced around the time
of Sir Anthony Mason's elevation to Chief Justice, the abandonment of what has
significantly been called the 'public rhetoric of technical legalism'24 arguably occurred
quite some time after that method had already betrayed itself.25 Patapan acknowledges
the sustained expansion of Commonwealth power that followed Engineers,26 though he
seemingly does not share Galligan's view that legalism was a device deliberately
intended by the Court, especially Isaacs and Higgins JJ, to mask a policy in pursuit of
this objective.27 That may be understandable, but it is a shame that, in seeking to
explain the ascendancy of legalism throughout much of the Court's history, more is not
made by Patapan of those federal implications drawn after Engineers. In particular, the
absence of any discussion concerning Dixon CJ's subtle reworking of the federal
relationship through the use of implications is surprising.28 The statement by Patapan
_____________________________________________________________________________________
20
West v Commissioner for Taxation (NSW) (1937) 56 CLR 657. In Nationwide News Pty Ltd v
Wills (1992) 177 CLR 1, 69, Deane and Toohey JJ stated that 'it has long been recognized that
the 'notion' or 'dogma' which gained currency for a period after the decision in the
Engineers' Case to the effect that the rejection of the doctrine of "immunity of
instrumentalities" meant that no implications can be made in construing the Constitution
was mistaken'.
21
Patapan, above n 6, 29 and Chapter 3 generally.
22
The significance of the declaratory mind-set of the common lawyer and its pervasive
influence over the High Court for much of its life is noted by Patapan in numerous places:
ibid 15; 27; 123-4; 140-1; 182-3.
23
Victoria v The Commonwealth (Payroll Tax Case) (1971) 122 CLR 353, 402. An example where
Patapan does expose the claims of legalism very effectively is in his handling of Barwick
CJ's judgment in Attorney-General (Cth); Ex rel McKinlay v Commonwealth (1975) which takes
place in Chapter 4: see Patapan, above n 6, 77-80.
24
Brian Galligan, 'The Australian High Court's Role in Institutional Maintenance and
Development' in Charles Sampford and Kim Preston (eds), Interpreting Constitutions –
Theories, Principles and Institutions (1996) 200.
25
As Doyle CJ has said, 'It is not that previously the High Court did not make law but now it
does. It is simply that during his [Mason's] time as Chief Justice that role was more openly
avowed and, I believe, more frequently exercised.': John Doyle, 'Implications in Judicial
Law-Making' in Cheryl Saunders (ed), Courts of Final Jurisdiction – The Mason Court in
Australia (1996) 84.
26
27
See Galligan, above n 24, 200-201 and Patapan, above n 6, 15 (text accompanying n 24).
28
Specifically, Dixon J's role in the establishment of the Melbourne Corporation principle and
the Cigamatic doctrine. The latter poses such an interesting challenge to the orthodoxy
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that the making of implications was perceived as a movement from the legal field to
improper involvement by the Court in the making of political and personal judgments
would seem to invite at least fleeting consideration of how the Melbourne Corporation29
principle was justified within such a methodology.30 In his recent analysis of this topic,
Jeremy Kirk has stressed that in order to understand the use and legitimacy of
constitutional implications there are dangers in restricting the scope of one's inquiry:
[T]he process of ascertaining implications is a fundamental and frequent part of
constitutional interpretation. One legacy of the Engineers Case has been a marked judicial
reluctance to admit that this is the case. The clearest acceptance of the role of implications
came only where it was hard to deny, with the federal immunities. Even then, some
judges sought to sidestep the issue, as others did for the implied nationhood
power…Legitimacy issues do arise whenever judicial choice is involved, and judicial
choice is almost invariably inherent in recognising implications. A concern about these
matters is reflected in the traditional restrictive 'necessary implication' test, although such
a separate test for implications cannot ultimately be justified. Instead, the question of
whether or not to recognise an implication depends on the general approach adopted to
constitutional interpretation, combined with such other guides as a theory of stare
decisis…An awareness of the different types of implication may also offer some insight
and assistance.31
Of course, any actual shift in interpretative method has nothing to do with the use
of implications per se and Patapan does not say as such. But his examination of the
approach of the Court in recent times is slightly diminished by insufficient clarity
about the legitimacy of implications made in the past. To take the example of the
implied freedom of political communication, Mason CJ in his judgment in Australian
Capital Television v Commonwealth32 was at particular pains to refute the suggestion that
the Engineers methodology was irreconcilable with the finding of an implied freedom
of political communication, though not to the satisfaction of some of his colleagues.33
The fact that the Court ultimately grounded the implied freedom squarely upon
particular provisions of the Constitution in Lange v Australian Broadcasting Corporation34
has been described as a conservative continuation of the 'commitment to textualism'
_____________________________________________________________________________________
established by the Engineers Case it has been referred to as 'Dixon's heresy': see RP Meagher
and WMC Gummow, 'Sir Owen Dixon's Heresy' (1980) 54 Australian Law Journal 25, 29.
29
Melbourne Corporation v Commonwealth (1947) 74 CLR 31.
30
For example, consider the brief but necessary comments of George Williams in respect of
federal implications as a preface to his consideration of implied freedoms. George
Williams, 'Judicial Activism and Judicial Review in the High Court of Australia' in Tom
Campbell and Jeffrey Goldsworthy, Judicial Power, Democracy and Legal Positivism (2000)
418. In contrast, Patapan's only mention of this case occurs in n 29 of Chapter 2 as reviving
the principle of intergovernmental immunities – which actually invites much more
speculation from the novice reader than no reference at all!
31
Jeremy Kirk, 'Constitutional Implications (I): Nature, Legitimacy, Classification, Examples'
(2000) 24 Melbourne University Law Review 645, 675-6.
32
(1992) 177 CLR 106, 133-5.
33
In particular McHugh J whose dissent in Theophanous v Herald & Weekly Times Ltd (1994)
182 CLR 104, 197-8, 202 indicates that he remained unconvinced that the freedom as
conceptualised by some members of the Court at that time was consistent with the
Engineers methodology.
34
(1997) 189 CLR 520.
2001
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endorsed in Engineers.35 Indeed, it is clear that this was precisely what the Court was
aiming for in order to secure the legitimacy of its recognition of the freedom.36
However, the method in respect of implications derived from the separation of judicial
power was clearly not so strictly rooted in the 'text and structure' as that in respect of
the implied freedom. Certainly some of the minority judgments in this area indicate
what Patapan calls the 'potential for unbounded judicial discretion'37 in their
interpretation of the Constitution. This difference is pertinent to both concerns about
the legitimacy of those implications and also the view of the political regime which
they reflect. Patapan's analysis in respect of these two matters is, as discussed below,
particularly astute. However, the absence of any real critique of the varying
acceptability of implications leaves something lacking in this chapter on the politics of
interpretation.
Law-making, values and popular sovereignty
The complaint about implications aside, Patapan's evaluation of the Court's attempts to
settle upon an interpretative direction after the quite candid claims of judicial lawmaking is illuminating. The international and institutional changes that preface this era
are succinctly canvassed and the influence of the sociological jurisprudence of Roscoe
Pound and Julius Stone upon those sitting on the High Court by the late 1980s is
appropriately documented. In supplanting a merely legalistic method, the 'dynamic
and progressive' interpretation that emerges in the Mason Court represents a
disenchantment with the notion of parliamentary sovereignty as a cornerstone of the
Australian political regime. It is not so surprising, as we shall see in the next section of
this article, that the result was to produce a rights-based jurisprudence where none of
significance existed before. But upon what did the new High Court method rely for its
legitimacy?
The point is made by Patapan in numerous places that in its admission of lawmaking, the High Court has sacrificed the security that legalism previously provided.38
In the need for legitimacy the Court has increasingly resorted to 'community values' as
a basis for its supervision of the common law and its guardianship of the Constitution.
In doing so, it has been able to distance itself from the fallacy of legalism, though
without having 'expressly undermined the Engineers Case'.39 The tone of the Mason era
was set by his rejection of legalism as a 'cloak for undisclosed and unidentified policy
_____________________________________________________________________________________
35
Adrienne Stone, 'The Limits of Constitutional Text and Structure: Standards of Review and
the Freedom of Political Communication' (1999) 23 Melbourne University Law Review 668,
706. In this article, Stone argues forcefully that the insistence by the Court in limiting its
understanding of that implied freedom by reference solely to the 'text and structure' of the
Constitution presents real problems for its future application. Jeremy Kirk has also
observed that the 'text cannot provide the requisite content of the constitutional
requirement, nor determine the relevant boundaries': Jeremy Kirk, 'Constitutional
Implications (II): Doctrines of Equality and Democracy' (2001) 25 Melbourne University Law
Review 24, 52.
36
See Patapan, above n 6, 29; Stone, above n 35, 675; Williams, above n 11, 190; Andrew
Lynch, 'Unanimity in a Time of Uncertainty: The High Court Settles its Differences in Lange
v Australian Broadcasting Corporation' (1997) 6 Griffith Law Review 211.
37
38
Ibid 24, 150, 161, and 171 amongst others.
39
Williams, above n 11, 76.
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values' and call for 'policy-oriented interpretation'40 or 'legal realism'.41 Necessarily, a
focus upon 'community values' entails less significance being accorded to the
intentions of the framers of the Constitution. The tension between attempting to
accommodate community values and the intentions of the drafters has been the cause
of much academic discussion.42 The fact that the Australian debate about originalism
was only really ignited after the High Court admitted its law-making function and not
before, demonstrates the firm grip of the legalist mythology. Some of the more
popularly aired question marks over the legitimacy of the High Court's progressive
interpretation based upon community values have stemmed from the persistent views
put forward from the originalist camp. While there are very real concerns about the
High Court ‘divining’ the values of the community,43 it would seem mistaken to
suggest that looking to the founder's intentions necessarily provides much direction or
restraint44 or even that there is much of worth to be found in the convention debates in
respect of particular questions.45 Possibly signalling an end to this debate (or at least
taking it into a new phase), Graeme Hill has recently suggested that the divide
between originalist and progressive interpretations is not often determinative of the
outcome of cases in the High Court.46
Patapan's assessment of the 'community values' basis for the High Court's approach
to the Constitution and the common law is the most interesting aspect of this chapter.
The pertinence of such a discussion is reinforced by recent remarks of Gleeson CJ that
_____________________________________________________________________________________
40
Sir Anthony Mason, 'The Role of a Constitutional Court in a Federation: A Comparison of
the Australian and United States Experience' (1986) 16 Federal Law Review 1, 5.
41
Sir Anthony Mason, 'The Role of the Courts at the Turn of the Century' (1993) 3 Journal of
Judicial Administration 156, 164.
42
See Greg Craven, 'Original Intent and the Australian Constitution: Coming to a Court Near
You' (1990) 1 Public Law Review 166; Michael Stokes, 'Constitutional Commitments not
Original Intentions: Interpretation in the Freedom of Speech Cases' (1994) 16 Sydney Law
Review 250; Jeffrey Goldsworthy, 'Originalism in Constitutional Interpretation' (1997) 25
Federal Law Review 1; Michael Kirby, 'Constitutional Interpretation and Original Intent: A
Form of Ancestor Worship' (2000) 24 Melbourne University Law Review 1; Jeffrey
Goldsworthy, 'Interpreting the Constitution in its Second Century' (2000) 24 Melbourne
University Law Review 677.
43
See discussion below accompanying nn 47-52.
44
Patapan, above n 6, 27-8; Haig Patapan, 'The Dead Hand of the Founders? Original Intent
and the Constitutional Protection of Rights and Freedoms in Australia' (1997) 25 Federal
Law Review 232-234; Kirk above n 35, 26-31. While Patapan contends that originalism will
tend to restrain judicial activism, he does also suggest that 'by adopting a different
perspective on the founders' understanding of progress and liberalism, it may be possible
for originalism in Australia to accommodate a more activist judiciary': (1997) 233.
45
Williams, n 11, 25-45; 79-84 for a concise view of the unhelpfulness of the convention
debates in respect of constitutionalising human rights. Williams writes, '[i]t is a mistake to
overestimate the level or quality of debate at the Conventions, just as it is a mistake to
believe that the records of the debates present the whole picture. Debate on fundamental
constitutional concepts was unsophisticated and showed a lack of understanding by many
speakers.' Williams, n 11, 34.
46
Graeme Hill, '"Originalist" vs "Progressive" Interpretations of the Constitution – Does it
Matter?' (2000) 11 Public Law Review 159. This is supported by Patapan's statement that 'far
from being the "dead hand" of the past, originalism in fact allows the greatest scope for
political experimentation and innovation' : Patapan, above n 44 (1997) 233.
2001
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continue to emphasise the role of values in the Court's work47 - which shall be
considered more fully towards the end of this essay. But while values continue to
receive recognition for their role in judicial reasoning, Patapan's assessment is that they
provide little restraint:
[T]he Court's recent decisions suggest that the notion of community values may not in
fact provide the anticipated check on individual judicial discretion. Minority judgments
regarding the common law, implied rights, separation of powers and sovereignty of the
people reveal the extent to which these concepts are sufficiently supple and complex to
harbour divergent and in some cases irreconcilable positions.48
This is a valuable, though unsurprising, observation. Although John Braithwaite
has employed empirical research so as to attempt an identification of the values of the
Australian community,49 the uncertain guidance provided by use of values has been
the subject of much discussion.50 But even though the core criticism remains, as John
Daley says, that '[t]here is little escape from the problem – be it epistemic or
ontological – that it is difficult to provide sure answers to many controversial value
choices',51 it is just as inescapable that such value choices must occasionally be made in
order to address some issues which are incapable of being resolved through the
application of legal logic.52
The significance of community values as an interpretative tool has been heightened
by the shift towards recognition of popular sovereignty underlying Australian
constitutionalism. The passage of the Australia Acts on the eve of the Mason era was
doubtless a contributing factor in the ability of this idea to take hold after earlier
statements had met with a sceptical reception.53 Popular sovereignty was advocated
particularly strongly by Deane J,54 though he was by no means alone in his support of
the principle.55 Most recently, Gleeson CJ has expressly rejected the operation of
British parliamentary supremacy, saying that the ability of the Australian people to
alter the Constitution means that 'the sovereignty of our nation lies with the people,
both as a matter of legal principle and as a matter of practical reality'.56
_____________________________________________________________________________________
47
Gleeson, The Boyer Lectures, above n 4, 98, 134.
48
49
John Braithwaite, 'Community Values and Australian Jurisprudence' (1995) 17 Sydney Law
Review 351, 355-60.
50
In addition to Patapan, see Jeremy Kirk, 'Constitutional Implications from Representative
Democracy' (1995) 23 Federal Law Review 37, 71-3; Klaus A Ziegert, 'Judicial DecisionMaking, Community and Consented Values: Some Remarks on Braithwaite's Republican
Model' (1995) 17 Sydney Law Review 373; Martin Krygier and Arthur Glass, 'Shaky Premises:
Values, Attitudes and the Law' (1995) 17 Sydney Law Review 385.
51
John Daley, 'Defining Judicial Restraint' in Campbell and Goldsworthy (eds), above n 30,
300.
52
Ibid.
53
In particular, see Kirmani v Captain Cook Cruises Pty Ltd (No 1) (1985) 159 CLR 351, 383,
(Murphy J); though Deane J also discussed this, ibid 410.
54
For example, see Stevens v Head (1992) 176 CLR 433, 461; Theophanous v Herald & Weekly
Times Ltd (1994) 182 CLR 104, 180.
55
Leeth v Commonwealth (1992) 174 CLR 455, 484 (Deane and Toohey JJ); Australian Capital
Television v Commonwealth (1992) 177 CLR 106, 138, (Mason CJ); and McGinty v Western
Australia (1996) 186 CLR 140, 230, (McHugh J).
56
Gleeson, The Boyer Lectures, above n 4, 6.
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Patapan is quick to highlight the implications of this shift and the consequences of
any adoption of the social contract theory to the Australian constitutional story. It
certainly bolsters the Court in the role of protector of the people after several decades
of being the distant umpire in federal scuffles.57 But, more importantly, this invites
reflection upon the theoretical basis of the entire polity and the Court's aptitude to both
devise, and function within, a new conception of it:
[T]he view of the Constitution as a type of social contract draws upon different political
and theoretical traditions with major consequences for the character of the regime. It may
well be that as an expression of Lockean liberal constitutionalism the Constitution secures
natural rights, limited government and representative government. However,
sovereignty of the people also opens up a world of fundamentally different aspects of
sovereignty, from Hobbes' sovereign to Rousseau's general will, and different political
visions, from communitarianism to republicianism. In these outer reaches the judicial
task of interpreting and applying the law, of choosing the character of the political
regime, becomes a delicate task more suited for the skills, abilities and discretion of a
political philosopher and statesman.58
Chief Justice Gleeson's recent Boyer Lectures were suffused with the idea that
individuals are protected by the rule of law as upheld in the courts - in this sense, he
agrees with the view of both Patapan and Justice Kirby that the High Court can
operate to shield individuals from the excesses of institutional power.59 However, he
made no direct comment about how an appreciation of popular sovereignty may affect
constitutional interpretation and the nature of the Australian political arrangement.
Indeed, it can only be presumed that far from throwing open the sort of questions
raised by Patapan, the Chief Justice considered that the derivation of constitutional
authority from a base of popular sovereignty only goes further to justifying his
trenchant faith in 'strict and complete legalism'.60 Recognition of the sovereign place of
the people does not generate competing visions of governance but rather demands
careful adherence to the terms of what was agreed:
[u]ltimately, however, all Australians are controlled, not only by what the founders said
in their written document, but also, and perhaps even more comprehensively, by what
they did not say. In a sense, a good deal of argument about the scope for interpretation is
relatively marginal. Silence, whether deliberate or not, binds us conclusively.61
History and Its Uses
The topic of popular sovereignty brings us to one final point in discussing the new
High Court's interpretative method. It is quite clear that a simplistic portrayal of the
federation process as an exercise in popular sovereignty involves a degree of historical
revisionism. This has been meticulously noted by Helen Irving, who surmises that 'the
historical error (if that is what it is) committed by the High Court, is not to identify a
'popular' or national purpose in the Constitution, but to see this as the principal or
overriding historical imperative'.62 Additionally, members of the Court have also
_____________________________________________________________________________________
57
Patapan, above n 6, 31 and Kirby, above n 1, 149-154.
58
59
Gleeson, The Boyer Lectures, above n 4, 3, 74-5. See also, Kirby, above n 1.
60
Ibid 85.
61
Ibid 55-6.
62
Helen Irving, 'The Australian Constitution and the Federal Compact', forthcoming paper
delivered at Faculty of Law research seminar, University of Technology, Sydney, 2000, 12
(copy on file with author).
2001
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____________________________________________________________________________________
expressed concern at its ability to pinpoint the evolution of the Australian polity with
any reliable historical accuracy.63
In fact, the fidelity of the High Court to matters of historical record – including its
own past – receives detailed attention by Patapan in his discussion of the Wik Peoples v
Queensland64 decision in chapter 5. The topic of native title involves history at several
levels. First, and most obviously, the ability to demonstrate connection to and use of
land is crucial to success in establishing the existence of native title in respect of that
land.65 Second, and more controversially, the majority decision in Wik demonstrates a
perverse view of legislative history. The suggestion that the Queensland Parliament in
enacting legislation granting pastoral leases in 1910 and 1962 did so without intending
to extinguish native title is highly problematic as a matter of legal history, as the
minority was keen to point out.66 Patapan likens the majority's ability to revise
historical fact to the declaratory theory of the common law67 – a view affirmed by
Gummow J's admission that the difficulties in establishing the 'independent truth' of
the past are best sacrificed to the declaratory theory's ability to adjust principle in order
to provide justice on the facts of an individual case.68 Although the operation of the
declaratory tradition is not exclusive to the majority, having been so obviously
employed in Mabo itself by Brennan and McHugh JJ (who are joined by Dawson J in
the minority in Wik), the importance of certainty of principle and historical accuracy
are clearly accorded different weight by members of the court in Wik. Leslie Zines has
commented that 'the reasoning of all the judges in Wik was quite orthodox'69 and
Patapan would seem to agree with this conclusion when he says 'the difference
between the majority and minority in Wik turns not on formal rules of statutory
interpretation, but on the more philosophical question of the way the past is to be
interpreted – the way the Court deals with 'history''.70 The ability of the judges in Wik
to operate within the legalist tradition yet divide on the extent to which they were
prepared to sacrifice an understanding of the past to 'their perceived duty to be just',71
should be salutary to those persons looking to history, perhaps in preference to
community values, to act as some kind of constraint upon the judicial method.
The third instance of the Court's historical approach arising from the native title
cases concerns the value it places on its own history. This is a significant theme
_____________________________________________________________________________________
63
See McGinty v Western Australia (1996) 186 CLR 140, 230 (McHugh J), and more forcefully,
Sue v Hill (1999) 199 CLR 462, 571-2 (Callinan J).
64
Wik Peoples v Queensland (1996) 187 CLR 1.
65
66
Above n 64, 70-84 (Brennan CJ).
67
68
Above n 64, 179-84 (Gummow J).
69
Leslie Zines, 'Judicial Activism and the Rule of Law in Australia' in Campbell and
Goldsworthy (eds), above n 30, 408.
70
Patapan, above n 6, 140. The division that can be caused over the act of balancing historical
certainty with the declaratory theory is identified by Alder as an example of the type of
incommensurable disagreement which leads to dissents in final courts. His discussion of
the House of Lords' split over this faultline in Kleinwort Benson v Lincoln City Council [1998]
4 All ER 513 indicates that this problem is not peculiar to the High Court of Australia. See
John Alder, 'Dissents in Courts of Last Resort: Tragic Choices?' (2000) 20 Oxford Journal of
Legal Studies 221, 230-1.
71
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running throughout Judging Democracy, and Patapan demonstrates it particularly well
in his examination of the Wik majority's rejection of the tenor of the Mabo decision in
respect of pastoral leases. The casualness with which Brennan J's reversion principle
(whereby the interest in land subject to a lease reverted wholly to the Crown upon its
expiry, thus extinguishing native title) from the earlier case is discarded by the Wik
majority is a strong reminder that the High Court's own history, and the views of its
individual members, are very much subject to the demands of those judging in the
immediate present. Of course, with the removal of ties to the Privy Council, this is
more true now than it has been for much of the Court's existence, but it has long been
recognised in the context of the Court's control over the development of constitutional
law.72 But it is rare to see this perpetual uncertainty so vividly conveyed as when
Patapan writes:
Thus the Court's decisions are protean and slippery, each in a sense consuming and
rewriting all that went before.73
RIGHTS AND JUSTICE – DEFINING THEIR BOUNDARIES
Patapan's analysis of the native title cases clearly demonstrates how disagreement
amongst the High Court is the product of the varying lengths to which its members
perceive they are entitled to go in order to provide justice. For example, Dawson J's
earlier dissent in Mabo should not be seen as a denial of the plight of indigenous
Australians and their dispossession of land at the hands of European settlers — rather
it is a rejection of the common law's culpability for this state of affairs and an insistence
that it is not within the proper bounds of judicial power for the High Court to amend
it.74 The dissent of Brennan CJ in Wik rests, not on such a stark demarcation of the
'legal' and the 'political', but rather on the extent to which he is willing to reassess past
events and to allow recognition of native title to alter accepted tenets of the common
law of property. The majority in Wik is prepared to pay this price in order to deliver a
result which it believes is just. The difficulties which flow from a judge playing (her or
his perception of) justice as a trump card are readily discernible.75
_____________________________________________________________________________________
72
Australian Agricultural Co v Federated Engine-Drivers & Firemen's Association (1913) 17 CLR
261, 278 (Isaacs J). See also JW Harris, 'Overruling Constitutional Interpretations' in
Sampford and Preston (eds), above n 24, 231-247; Bryan Horrigan, 'Towards a
Jurisprudence of High Court Overruling' (1992) 66 Australian Law Journal 199; Patrick
Keyzer, 'When is an issue of 'vital constitutional importance'? Principles which guide the
reconsideration of constitutional decisions in the High Court of Australia' (1999) 2
Constitutional Law and Policy Review 13.
73
74
Mabo v Queensland (No 2) (1992) 175 CLR 1, 145; Patapan, above n 6, 128-31.
75
Another good example, in an area quite removed from those covered in Judging Democracy,
is the High Court's development and application of the doctrine of unconscionable
transactions in equity. From a perfectly acceptable doctrinal genesis and a clearly legitimate
modern application in Commercial Bank of Australia v Amadio (1983) 151 CLR 447, the High
Court has managed (through two decisions in particular - Louth v Diprose (1992) 175 CLR
621 and Bridgewater v Leahy (1998) 194 CLR 457) to create uncertainty and debate about the
legitimate circumstances for the application of such relief – a point which has been noted in
vigorous dissents in those cases. See the judgment of Toohey J in Louth; and the joint
judgment of Gleeson CJ and Callinan J in Bridgewater.
2001
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The rights particularly focussed upon by Patapan in Judging Democracy are those
which were developed by means of constitutional implication in the 1990s. The
implied nature of the freedom of political communication and some of the rights
suggested in respect of Chapter III of the Australian Constitution meant not only that
this new jurisprudence was vulnerable to external criticism – it was also particularly
subject to the vagaries of individual Justices' perception of what was necessarily just.
That the implications purportedly derived from the separation of judicial power are
constitutionally less secure than the freedom of political communication reflects the
Court's failure (at least so far) to ground the former more clearly in the text of the
Constitution.76 Conversely, the ability of the High Court to reach consensus on the
recognition and basis of an implied freedom of political communication between 1992
and 1997 displays remarkable commitment to ensuring the legitimacy of that freedom
– especially when one considers the very disparate opinions given voice along the
way.77 The Court's settlement upon constitutional text of ss 7 and 24 of the
Commonwealth Constitution to ground this implied freedom 'is consistent with the
common law notion of freedom as residual or negative, the area left uncontrolled by
the law. It is also consistent with a constitutionalism that considered representative
and responsible government as essential for human development and progress'.78
Therefore the unanimous judgment in Lange79 represents a consolidation, which is
neither radical nor novel, but which accords with orthodox Australian
constitutionalism.
This point is well made by Patapan, but a seeming lack of clarity in respect of the
Court's discussion regarding the difference between 'representative government' and
'representative democracy' confuses the issue in parts. For example, while it is quite
true that 'the Court subsequently moved away from the notion of representative
democracy as the conceptual basis for interpreting rights, preferring to rely on specific
constitutional provision regarding the election of members of the House of
Representatives and the Senate',80 we are later told that: '[i]nitially, the favoured
institution is representative democracy. Lange augments this notion, with responsible
government'.81 Most of chapter 4, dealing with the High Court's involvement in
defining representative democracy is predicated on the basis that the concept of
representative democracy is entrenched by ss 7 and 24.82
In fact, Lange sees the triumph of an insistence by some in earlier cases,83 that the
freedom is to be implied from the system of representative and responsible
government established by ss 7 and 24, rather than any notion of representative
democracy which may be thought to underlie those sections. Far from augmentation,
Lange sees a withdrawal from what it clearly perceives as the expanse – and
_____________________________________________________________________________________
76
Williams, above n 30, 420-3.
77
See n 36 and Leslie Zines, 'The Present State of Constitutional Interpretation' in Adrienne
Stone and George Williams (eds), The High Court at the Crossroads – Essays in Constitutional
Law (2000), 227.
78
79
(1997) 189 CLR 520.
80
81
Ibid 60.
82
Ibid 70, 74, 86 and 88.
83
Theophanous v Herald & Weekly Times, (1994) 182 CLR 104, 199-200 (McHugh J); McGinty v
Western Australia (1996) 186 CLR 140, 169 (Brennan CJ).
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consequent uncertainty – of 'representative democracy'. As with the earlier comments
about the role of implications and shifts in interpretation, it is not suggested that
Patapan's central argument and observations are consequently flawed, nor seriously
undermined, by this feature of his treatment of the topic. The complaint is that his
thesis would, in fact, be strengthened by an acknowledgment of this aspect of the
Court's debate about the basis of its rights jurisprudence.84 It is also made with
appreciation of the fact that there is a school of thought that the distinction between
'representative democracy' and 'representative government' is largely meaningless.85
Presumably Patapan is similarly inclined.86 The difficulty in arguing that those two
phrases are interchangeable in describing the one concept, is that the High Court has
clearly signalled that it does not take this view. In particular, the unanimous judgment
in Lange, unlike those featured in the earlier political speech cases, contains no
reference to 'representative democracy'. The fact that the Court cited with approval
those very sources which McHugh J gave in Theophanous v Herald & Weekly Times to
support a distinction would also seem to indicate that it now shares his view.87
Perhaps those sources are open to challenge, perhaps the Court has been misguided –
but whilst arguments may be made on those grounds, the fact remains that the Lange
judgment draws a distinction which, until such time as the Court changes its mind,
should not be ignored or glossed over.
Despite concerns about the long-term inability of textualism to sustain the
development of the standards by which the implied freedom of political speech is to be
applied,88 the acceptance of this development, which the High Court has managed to
achieve through a concerted clarification of its method, is undeniable. It also raises an
interesting comparison with the implications arising from the separation of judicial
power, which have not received similar attention. That a consideration of the nature of
judicial power necessarily involves measurement using standards of what is just and
fair was highlighted most notably, but not exclusively, by the judgments delivered by
Deane, Toohey and Gaudron JJ in cases across this period.89 The variety of opinion
with respect to individual rights potentially derived from Chapter III of the
Commonwealth Constitution illustrates Patapan's argument concerning the
indeterminacy of community values and justice as a means of interpretation. In turn, it
_____________________________________________________________________________________
84
For example, the use of textualism as an indicia of judicial restraint was recently discussed
in Daley, above n 51, 305. Whether or not there is a meaningful distinction to be drawn
between the two concepts, my argument is that the Court's treatment of this issue is
reflective of Zines' comment that it 'was the tone rather than the substance of the [Lange]
judgment that seemed to presage a new more legalistic attitude': Zines, above n 77.
85
Kirk, above n 35, 45.
86
As, it seems, is Chief Justice Gleeson who has asserted that the 'establishment of
representative parliamentary democracy as the method of government for our Federation
has been held to carry implications for freedom of political debate and comment': Gleeson,
The Boyer Lectures, above n 4, 60-1.
87
Essentially, Anthony Birch, Representative and Responsible Government: An Essay on the British
Constitution, (1964) 17.
88
Stone, above n 35; Kirk, above n 35.
89
Specifically, Polyukhovich v Commonwealth (War Crimes Act Case) (1991) 172 CLR 501
(Deane J and Gaudron J); Dietrich v The Queen (1992) 177 CLR 292 (Deane J and Gaudron J);
Leeth v Commonwealth (1992) 174 CLR 455 (Deane and Toohey JJ, Gaudron J).
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also explains why those opinions have 'failed to coalesce into a persuasive and stable
jurisprudence'.90
The rights discourse which began in earnest on the High Court during the Mason
era is hugely significant in consideration of Patapan's central questions about the
Court's vision of the Australian legal and political regime and its place within it. The
very limited number and nature of the express rights contained in the Constitution
reflect the commitment of the drafters to the traditions of English constitutionalism
and their faith in the wisdom of parliament.91 The republicanism of Andrew Inglis
Clark found little favour with most of his contemporaries at the Constitutional
Conventions of the 1890s.92 The original High Court, comprised of persons intimately
familiar with the mood of the debates, may have drawn implications to support their
conception of Australian federalism without hesitation. However, they had no impetus
to do the same in respect of protecting human rights. The methodology laid down by
the Court in Engineers and the insistence upon legalism certainly continued the Court's
acceptance of parliamentary sovereignty as the theoretical core of the Australian polity.
The Court's more recent change in interpretative method and its willingness to explore
rights protection indicates an appreciation of its position and accountability as the final
court of appeal in a member of the international legal community.93 But Patapan is
keen to assert that, more fundamental than the influence of internationalism,94 is the
Court’s growing awareness of the limitations of majoritarian rule which parliamentary
sovereignty supports.95 This has necessarily affected how it conceives its role of
judicial review.96
Over the last decade, the ire of politicians has been aroused not just by the result of
matters before the Court, but also by the clear willingness of many of its members for
the Court to act as a 'buffer between [arbitrary] governmental power and the people'.97
Though, as always, the degree to which they will insist upon this role is a source of
contention. Clearly, Dawson J took a very restrained view of the Court's ability to
intervene in righting the perceived wrongs of the people's representatives.98 At the
other end of the spectrum, Patapan describes Deane, Toohey and Gaudron JJ's
judgments in Mabo as revealing a 'fundamental distrust of Parliament and the
people'.99 That these three justices tended to present the more progressive readings of
the Constitution is not surprising – their clear preference for natural rights in the
Kantian mould rather than a recognition of rights merely through a negativing of
parliamentary power produced opinions that other members of the Bench considered
_____________________________________________________________________________________
90
91
Patapan, above n 6, 41-5; see also Williams, above n 11, 82-4.
92
Helen Irving, To Constitute a Nation (1998) 69-72; Williams, n 11, 30-45; George Williams, 'A
Republican Tradition for Australia?' (1995) 23 Federal Law Review 133, 144.
93
Patapan, above n 6, 17-20; 47-9.
94
Though on this topic, see Amelia Simpson and George Williams, 'International Law and
Constitutional Interpretation' (2000) 11 Public Law Review 205.
95
96
In addition to the supporting extra-curial remarks cited by Patapan, see also John Toohey,
'A Government of Laws, and not of Men?' quoted in Galligan, n 24, 186; and Gleeson, The
Boyer Lectures, above n 4, 68-71.
97
98
See text accompanying n 73.
99
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wholly irreconcilable with Australia's constitutional traditions. The reining in of these
views from Theophanous100 to an adoption of the textualist basis for the implied
freedom of political communication in Lange, and the McGinty majority's clear rejection
of Toohey and Gaudron JJ's attempts to impose limits upon parliamentary control of
the electoral system, represent a significant curtailment of the influence of republican
theory in the High Court, at least for now. The legacy of judgments reliant upon
popular sovereignty and republicanism in the field of implications arising from
separation of judicial power remains to be seen.101
THE NATURE OF THE REGIME AND THE HIGH COURT'S PLACE
WITHIN IT
Judging Democracy is concerned with analysing the High Court's recent case law to
determine how it conceives the polity within which it functions. The point has been
made above, in respect of both interpretation and rights, that the founders were more
heavily influenced by Westminster constitutionalism than the federalist and republican
vision of the Americans. The faith in parliamentary sovereignty and responsible
government explains the length of time for which the Court was held in the thrall of
legalism. Although always demanding a strict separation of judicial power, the Court
has acknowledged the influence of responsible government upon the greater mingling
between the legislature and the executive powers.102
The admission of a law-making role for the courts introduces difficult notions into
this setup. It directly challenges parliamentary power, it asks questions about
accountability in a democratic society and, in so doing, it invites consideration upon
the judiciary's claim to be separate from the other arms of government. The fierceness
with which judicial separation continues to be guarded by the High Court was
demonstrated particularly by the decisions in Brandy v HREOC103 and Wilson v
Minister for Aboriginal and Torres Strait Islander Affairs.104 On what basis does the
Court's continued claim for judicial independence rest?
Patapan explores the mixed heritage of the United States' Federalist papers and
Blackstone's Commentaries on the Laws of England and concludes that the separation of
judicial power rests upon an amalgam of both, excessive reliance upon the former
necessarily being precluded by the practical reality of responsible government in the
Australian constitutional system. The Court's stated emphasis upon the protection of
freedom of the individual in recent times, should not itself be seen as indicating a
greater embrace of the American tradition of separation of powers. Though the federal
structure of the Australian state provides a significant rationale justifying the
separation of judicial power, Patapan says that 'the theoretical justifications for the
Federalist conception of separation of powers never seriously engage the Court'.105
Instead, the recent focus upon liberty has been developed within Blackstone's
conception of the role of separation of powers and the protection of ancient common
_____________________________________________________________________________________
100 Where Toohey and Gaudron JJ were joined in a joint judgment by Mason CJ.
101 See Williams, above n 11, 241-3, 249.
102 Victorian Stevedoring & General Contracting Co Pty Ltd & Meakes v Dignan (1931) 46 CLR 73.
103 (1995) 183 CLR 245.
104 (1996) 189 CLR 1.
105 Patapan, above n 6, 165.
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law rights. That said, the failure of the Court to reconcile reliance upon English notions
of separate judicial power with its stated abandonment of Blackstone's declaratory
theory has inevitably led to a perceptible lean towards the American constitutional
concept of 'checks and balances'. The hostility with which the Court is now treated by
the other arms of government, including the Attorney-General's refusal to speak for
the courts, is strongly indicative of this changing constitutionalism.106
The Court's transition, from the legalist method and sovereignty of parliament
toward a system of judicial review that more openly applies institutional restraints in
light of community values, has not occurred smoothly nor without objections and
difficulties – indeed it is almost certainly going too far to say that such a transition has
actually occurred. Nevertheless, Patapan is able to describe the direction in which
much of the Court's recent work seems to point:
The regime is founded upon republican ideals, though popular sovereignty expresses its
will through representative institutions such as parliament that are subject to liberaldemocratic ideals. Therefore certain core or fundamental principles are entrenched
expressly or implicitly in the Constitution. These fundamental rights, which include
freedom of speech and movement, of equality and non-discrimination, are jealously
guarded by the judiciary which will supervise with suspicion – check and balance – other
institutions such as Parliament and the executive who continually seek to augment their
power and authority. The regime provides the greatest room for the play of human
innovation and endeavour, assuring progress and prosperity. On the whole the polity is
outward-looking, taking its cues and direction from international developments.107
Thus Patapan answers his initial question of the nature of the Court's democratic
vision. The extent to which Australian constitutionalism is embracive of republican
theory is a matter lying at the core of the present Bill of Rights debate. Yet, as George
Williams argues, until such time that republicanism forms part of Australia's
constitutional orthodoxy, its use by the High Court presents a 'danger for the integrity
of the process of constitutional interpretation'.108 This would explain the controversial
reception which met the Court's decisions handed down in the era under review by
Patapan. The obvious breaking down of the division between law and politics that is
caused by consideration of republican ideals within our existing constitutional
tradition is clearly a development upon the Court's earlier practice and one which, like
most periods of change, caused consternation and confusion.
Having indicated the nature of the polity reflected in the High Court's recent
decisions, Patapan turns his direct attention on the crucial question that has burned
throughout the book – is this democratic vision the result of concerted group decisionmaking, or does it represent no more than the output of so much judicial discretion,
indulgence and individualism? Interestingly, in his foreword to Judging Democracy, Sir
Anthony Mason offers this 'caution to the reader':
The High Court is not a monolithic institution. It is at any time a group of seven justices
who are obliged to hear and determine, according to their individual judgment,
particular cases. The justices may have conflicting views on the role of the Court as well
as on the principles of law which should govern the case in hand. It would therefore be a
serious mistake to assume that, in deciding a case, the Court as an institution embarks
_____________________________________________________________________________________
106 Williams, above n 2.
108 George Williams, 'A Republican Tradition for Australia?' (1995) 23 Federal Law Review 133,
143.
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upon any general policy with a view to achieving a particular goal, political or otherwise,
external to the disposition of that case.109
Patapan admits that perhaps he was 'too ambitious in looking for a comprehensive
and consistent depiction of Australian democracy in the Court's judgments'.110 The
judges of the High Court speak, as Mason has reminded us, primarily with their own
voices. While unanimity may occur – and indeed did so comparatively frequently in
the Mason and Brennan eras – it remains very much the exception to the usual
practice. The difficulties posed by dissenting judgments and our lack of any conceptual
framework so as to appreciate their significance in respect of a study of this sort is
something which Patapan is keenly attuned to:
[T]he very possibility of many judgments, of minority and majority views, entertains the
promise of dissent and thereby legitimates the possibility of overruling. That the Court
may reject its previous decision, albeit rarely and reluctantly, presents the awkward
possibility of many Courts, even a right and a wrong Court, a better or worse Court, a
Court that is more or less legitimate.111
This diversity of opinion plays a crucial role in the incremental development of the
Court's jurisprudence: minority judgments often act as scouts of a possible future path,
advancing the jurisprudence. At other times they are the corrective, rejecting such
advances'.112 Thus, in spite of the restraints urged by precedent and the nature of
litigation before it, Patapan maintains his rejection of any assertion that:
[T]he Court has little or no discretion, that its decisions are simply ad hoc or dictated by
the practical exigencies of each case, that what looks like judging democracy is in fact an
accidental collage of thoughts and observations rather than a complete picture of the
regime. The new politics of the High Court refutes this proposition: the disjunction and in
some cases break from the Court's previous decisions, and the extra-curial claims of the
justices themselves, indicated and promised a more ambitious plan.113
The last part of this passage is a strong response to the caveat applied by Sir
Anthony Mason in his foreword – undeniably the Court shifted its outlook under his
Chief Justiceship. The normally 'individualistic spirit of its members'114 makes it
difficult to dismiss the developments and achievements of the High Court's work
during this period as so little more than a coincidence of cases and personalities.
Recent empirical work seems to indicate that Mason CJ was at the intellectual core of
the Court over which he presided.115 Thus, ironically, his influence appears to have
been pivotal in establishing whatever degree of institutional coherence can be
discerned.
_____________________________________________________________________________________
109 Mason, 'Foreword' in Patapan, n 6, viii-ix.
111 Ibid 185.
112 Ibid 186–187.
113 Ibid 189.
114 Gleeson, The Boyer Lectures, above n 4, 89.
115 Russell Smyth, '"Some Are More Equal Than Others" – An Empirical Investigation into the
Voting Behaviour of the Mason Court' (1999) 6 Canberra Law Review 193.
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THE POLITICS OF THE NEWEST HIGH COURT
It is clear to all observers that the Court over which Gleeson CJ presides is markedly
different from that of the Mason era.116 Thus Judging Democracy seems more a
reflection on the heady days of the recent past than an analysis which encompasses
much of the present Court's work. That said, Patapan's final recommendation still
holds relevance in light of the lessons to be learnt from the 1990s. He urges the Court to
better explain itself to its 'shadow court' – practitioners, academics, commentators and
students. He is particularly concerned that the last group are not seduced by the easy
appeal of a judicial method which is prepared to displace law in order to achieve what
is perceived as just. Rather pointedly he identifies the 'example and ambitions of the
'Great Dissenter' on the Bench'117 as the source of this harm. This seems unfair in light
of the analysis he has offered in earlier chapters of the excesses of the Theophanous and
Wik majorities, to take just two examples.
Interestingly, this is a topic which Gleeson CJ has also addressed. In his Boyer
Lectures, the Chief Justice also stressed the importance of the 'shadow court' when he
said:
It is not sufficient for the Court to have the respect of lawyers; but it is absolutely
necessary. Without that, the Court could never hope to sustain the respect of the public.
Judges of final appeal primarily needs the confidence of the judges from whom they hear
appeals, and of the legal profession as a whole. If the judiciary and the legal profession
lacked confidence in the technical legal ability of the members of Australia's highest
court, then it is impossible to expect that public confidence could be maintained.118
The Chief Justice has also eerily echoed Patapan's concern about hero worship of
iconoclastic judicial officers by saying that '[o]nly someone given to mock heroics, or
lacking a sense of the ridiculous, could characterise differences of judicial opinion in
terms of bravery'.119 In fact, the Chief Justice's portrayal of judicial work as 'uniquely
secure' and without 'risk of any personal, financial, professional, or social penalty'120 is
difficult to reconcile with much of the venomous commentary upon the Court and its
individual judges in recent years. Instead of simply communicating the strength of
judicial independence, such sentiments seem more like a wistful attempt to revive the
decades when the Court glowed in the respect of the other arms of government and
was shrouded in mystery in the public mind.
It is when one considers the recent statements on methodology that the difference
between the present and the period under review in Judging Democracy seems most
apparent. Through analysis of significant cases of the Gleeson period to date, Zines has
been able to say that 'it cannot be said that there has been any sharp break with the
recent past in judicial method so far as the majority of judges are concerned'.121
However, extra-judicial pronouncements by Gleeson CJ are in stark contrast to those
which we have become accustomed to seeing emanate from the Court since the mid_____________________________________________________________________________________
116 This is most attributable to the pronounced change in the Court's composition since 1995
rather than the arrival of any one particular Justice.
119 Murray Gleeson, 'Judicial Legitimacy' Australian Bar Association Conference, New York, 2
July, 2000, reprinted in Gleeson, The Boyer Lectures, above n 4, 124-138 (this quote from 136).
120 Ibid.
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1980s. The Chief Justice has stated that 'the members of the Court are expected to
approach their task by the application of what Sir Owen Dixon described as 'a strict
and complete legalism".122 Even in spite of the strong criticism of the Court since it
acknowledged its law-making role and the distinct change in the Court's personnel in
recent years, this is a surprising development. Are the new politics of the newest High
Court, simply that it has no politics?
Can it only be four years earlier that Doyle CJ confidently stated that 'the
previously prevailing strict legalism has been abandoned. There is an open
acknowledgment of the role of what I have called policy"?123 How are we to reconcile
Gleeson CJ's apparent revival of legalism (or at least the rhetoric thereof) with the clear
departure from it signaled by Mason J in 1986?124 It seems far too late in the day for a
retreat to the safe haven of legalism without greater explanation - quite bluntly, values
are out of the bag.125 Mason J argued that policy-oriented interpretation would expose
the values underlying legal reasoning. Gleeson CJ tends to eschew the more common
phrase 'community values' in preference to what he calls 'values inherent in the
law'.126 Without wishing to enter a semantic debate about the similarities or distinction
between values which 'inhere' and those which are 'underlying'– it seems clear that Sir
Anthony Mason's recognition of values included those which are not necessarily
purely legal in nature but which may rest upon a broader base of acceptance by the
_____________________________________________________________________________________
122 Gleeson, The Boyer Lectures, above n 4, 85. The original statement by Dixon CJ is found at
(1952) 85 CLR xiv.
123 Doyle, above n 25, 95.
124 Mason, above n 40. I am conscious here of the arguments made by Bryan Horrigan that 'the
proper meaning of strict legalism does not preclude reference to non-rule-based standards',
Bryan Horrigan, 'Paradigm Shifts in Interpretation: Reframing Legal and Constitutional
Reasoning' in Sampford and Preston (eds), above n 24, 42. Horrigan's view is predicated on
the basis that there is a 'narrow' and 'wide' sense of 'strict legalism'. The original use of
'strict legalism' by Dixon CJ was in the latter sense and is not to be seen as irreconcilable
with subsequent admissions of the role of policy. Horrigan's argument that 'Mason CJ's call
for a change in judicial approach is not a complete renunciation of Dixonian strict legalism'
(ibid, 64) is hard to square with the words of Sir Anthony Mason himself when he stated,
'As the High Court moves away from "strict and complete legalism" and toward a more
policy oriented constitutional interpretation, it is a natural parallel that the Court place
greater emphasis on the purposive construction of statutes.' Mason, above n 40, 5. This is
not necessarily to resist the construction which Horrigan places upon the sense in which
Dixon CJ employed the phrase 'strict legalism', but it would seem either that Mason CJ did
not unquestioningly share that perception of what the phrase evoked or, more likely, that
the slide from the 'wide' meaning to the 'narrow' which had crept into Australian law by
1986 simply rendered any use of 'strict legalism' no longer helpful as an attempt to explain
judicial methodology.
125 In acknowledging inescapable policy considerations, Justice Sackville had this to say of the
High Court's recent work, 'It is tempting to see recent developments as signalling a
departure from the policy-oriented jurisprudence of the Mason Court. The inconvenient
results flowing from cases like Re Wakim and Abebe and the emphasis on the primacy of the
text of the Constitution suggest a retreat towards a "strict and complete legalism" in
constitutional adjudication. But…this is too simplistic a view': Ronald Sackville, 'Foreword'
in Stone and Williams, above n 77, vi.
126 Gleeson, above n 119, 134.
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community.127 In accordance with the sociological jurisprudence which Patapan has
identified as an influence upon members of the Mason Court,128 the resort to these
values does not automatically taint legal reasoning nor render it illegitimate.
What are these 'values inherent in the law' and what is their relation to what other
members of the court have called 'community values'? Other than saying that '[r]espect
for precedent is itself one legal value, although there are times when it is outweighed
by other legal values'129 the Chief Justice does not expand upon what these might be
(though his choice of precedent as an example of the kind of values he has in mind is
revealing in its conservatism), nor how they might operate, nor precisely where the
line will be drawn between such values and those which are not to be properly classed
as 'legal'. Thus, despite the apparently narrower range of 'values' that Gleeson CJ is
prepared to recognise, he does not allay Patapan's concerns about their malleability in
the hands of judges. In fact, passages from a speech delivered by the Chief Justice to
the Australian Bar Association in New York last year highlight the tensions that lurk
behind the cloak of the legalist tradition:
If the High Court is not to resolve federal conflicts by a legalistic method, what other
method is it to employ? Different lawyers have different ideas as to the techniques that
are appropriate to strict and complete legalism, but who would care to suggest an
alternative to legalism? A complaint that a judgment is literalistic is one that I can
understand, and with which, on occasions, I may agree. But what exactly is the meaning
of a complaint that a judgment is legalistic? Judges are appointed to interpret and apply
the values inherent in the law. Within the limits of the legal method, they may disagree
about those values. But they have no right to throw off the constraints of legal
methodology. In particular, they have no right to base their decisions as to the validity of
legislation upon their personal approval or disapproval of the policy of the legislation.
When they do so, they forfeit their legitimacy.130
From this it is clear that room exists within 'strict and complete legalism' for diverse
opinions as to methodology – in which case some discussion of these would be
welcome.131 There is also scope for disagreement about legal values – thus giving them
one of the significant defects already identified in respect of community values.
Additionally, there would seem legitimate concern that application only of 'values
_____________________________________________________________________________________
127 Although the difficulties involved in the use of 'community values' were referred to earlier
in this essay, two points need to be borne in mind before rejecting such a methodology,
unpredictable as it may be, for 'strict and complete legalism'. First, it was also
acknowledged that some disputes may only be resolved through use of non-legal
considerations such as moral or political values. Second, the problems of uncertain
identification and application are not substantially lessened by resort only to 'legal values' –
especially when one considers Justice McHugh's opinion that 'what has been called
community values has usually been a reference to values…which already inhere in the
legal system': McHugh, above n 4, 46.
128 Patapan, above n 6, 20-22.
131 This would also seem to invite consideration of whether legalism can really be said to be
'strict' when it seems to offer such selectivity.
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which inhere in the law' involves the judiciary projecting on to the wider community
values which the latter does not entirely share.132
The New York speech makes it very difficult to discern Gleeson CJ's position on
values as his Honour used that occasion expressly to endorse the work of McHugh J on
the judicial method.133 Whilst it is true that McHugh J's writings on the technique of
judging have much in common with the views expressed with more generality by the
Chief Justice, there are important inconsistencies. In particular, how are we to reconcile
Gleeson CJ's insistence that judicial legitimacy depends upon a legalist method using
only those values which inhere in the law, with these two statements from McHugh J
in 1999:
Extrinsic values and practical experience derived from democracy, economics, science,
social and political forces, public morality and contemporary conceptions of justice are
often relevant factors in shaping the development of the law.
[I]f the extra-legal values of the community are clear and the issues are "relatively
discrete and manageable", there is no reason to disregard them as legitimate sources of
the judicial law-making function.134
Gleeson CJ's reticence about the substance of the values he considers relevant is also
an interesting feature of his writing. If we are to confine ourselves to 'legal values', and
if the 'expertise which the members of the [High] Court are required to bring to
bear…is their expertise as lawyers',135 then surely we can expect more precision about
the content of those values? It may be that McHugh J provides the way forward when
he says that he suspects that 'what has been called community values has usually been
a reference to values such as freedom, equality before the law, good faith and
reasonableness which already inhere in the legal system'.136 Perhaps then it is possible
for the Gleeson Court to connect itself to the jurisprudence which immediately
precedes it but then to develop and apply its own distinctive methodology which may
take it in different directions.137
What is very clear is that assertions of a legalist methodology will not have the
desired effects of making the Court's work any easier, nor guaranteeing greater public
understanding and acceptance of the outcomes. Both Williams138 and Zines139 have
pointed out that the methodology in Wik was amongst the most legally orthodox in the
last decade yet the High Court managed to attract a 'torrent of abuse' for that
_____________________________________________________________________________________
132 Daley has said that 'judges tend to have an homogeneous background which emphasizes
some values – particularly fair process and individual liberty – in ways which are not
entirely rational': Daley, above n 51, 300.
134 McHugh, above n 4, 46-7.
135 Gleeson, above n 119, 6 of original transcript of speech. Oddly, these words from the
original version of the New York speech do not appear in the version found at the end of
the Boyer Lectures book. The passage from which they originally came is found in The Boyer
Lectures, above n 4, 134-5.
136 McHugh, above n 4, 46-7.
137 As another example of Justice McHugh's involvement in such a process, in his 1999 article
he in fact forecast a diminished role for extra-legal values in the Court's future work:
McHugh, above n 4, 46.
138 Williams, above n 30, 427-8
2001
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decision.140 Decisions from the last few years illustrate a high degree of flexibility,
selectivity and inconsistency in judicial method amongst the Court – and indeed, in
respect of individual justices from case to case.141 Apart from anything else it achieves,
Patapan's Judging Democracy, by canvassing the strides in methodology and
transparency made by the High Court since the mid-1980s, plays an important part in
explaining why any retreat to 'strict and complete legalism' is unsustainable and
unhelpful.142
CONCLUSION
It is apparent from the foregoing that the arrival of Judging Democracy is particularly
timely. The developments in the practice and outlook of the High Court since the
appointment of Sir Anthony Mason as Chief Justice has long needed just such a
general yet concise study. While the many changes in the law over recent years have
received specific attention in published articles, it is refreshing to read an account
which seeks to relate many of those developments to each other and to the core issues
of judicial method. It is probably inevitable that in attempting such a task, the author is
bound to dissatisfy some readers in respect of the depth or handling of particular
matters. It is just as certain, that a book of this sort generates more points of debate
than it answers – indeed, given the complexity of the material under discussion, it
would be an indication of deficiency if this were otherwise.
In providing a broad examination of the High Court's recent jurisprudence, Judging
Democracy succeeds admirably. The selection and erudite treatment of topics by
Patapan and the connections which he makes between them offers and invites
reflections about many aspects of the Court's role and operations. This book will play a
prominent part in our understanding of the High Court in the 1990s and our
discussions about it in its second century. As such, it is ensured a welcome reception
and a lasting importance.
_____________________________________________________________________________________
140 Ibid.
141 See generally the various analyses of the Court's recent work contained in Stone and
Williams, above n 77. In the concluding chapter of that work, Zines finds no trend in the
Court's constitutional interpretation: 'There is not, in my view, any general pattern or
direction at this stage. The cases are a motley collection in which the Court and individual
judges take varying approaches depending on the issue': Zines, above n 77, 238.
142 Horrigan, after arguing for the 'proper' understanding of 'strict legalism' in its 'wide' sense
to be acknowledged, says, 'Australian constitutional reasoning, therefore, needs a
conceptual framework for accommodating judicial reference to such 'deeper…conceptions
of justice' as 'principles' (in something like their Dworkinian sense) or values underlying
Australian constitutional law and for distinguishing impermissible from permissible
references to 'policy' considerations, community values and other non-rule-based
standards.' Above n 124, 61. In spite of his arguments about its true wider sense, the use of
'strict and complete legalism' seems ill-equipped to rise to this challenge.
COMMENT
BROWNLEE V THE QUEEN: METHOD IN THE MADNESS
James Stellios*
INTRODUCTION
In Brownlee v The Queen1, the High Court was asked to consider whether the trial of the
applicant pursuant to current legislative standards of trial practice in New South Wales
was compatible with s 80 of the Constitution. Pursuant to provisions of the Jury Act
1977 (NSW)2, the jury was reduced during the course of the trial from twelve jurors to
ten, and during jury deliberation, the jury members were allowed to separate at the
end of each day. The applicant contended before the High Court that such practices
were incompatible with the essential characteristics of a 'trial … by jury' in s 80 of the
Constitution. The Court unanimously rejected that argument.
Brownlee v The Queen provided the High Court with another opportunity to explore
the scope of s 80 of the Constitution. It also provided the Court with another
opportunity to develop an accepted method of constitutional interpretation. Despite
the insistence by some Justices for the adoption of a particular label for constitutional
interpretation, it would appear that, at least as far as the meaning of 'trial … by jury' in
s 80 of the Constitution is concerned, the High Court has adopted an accepted
framework.
FACTS
The applicant was charged with conspiracy to defraud the Commonwealth in
contravention of s 86A of the Crimes Act 1914 (Cth). He was tried on indictment in the
District Court of New South Wales and was convicted. The District Court had
_____________________________________________________________________________________
*
Lecturer, Faculty of Law, Australian National University. The author appeared as counsel
for the Commonwealth of Australia at the hearing of Brownlee v The Queen (2001) 75 ALJR
1180 before the High Court. The views expressed in this Comment are those of the author's.
1
(2001) 75 ALJR 1180.
2
Hereafter referred to as the Jury Act.
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jurisdiction conferred on it to try and convict the applicant under s 68(2) of the Judiciary
Act 1903 (Cth).3 The conferral of jurisdiction is expressed to be subject to s 80 of the
Constitution. In accordance with s 68(1) of the Judiciary Act, the laws of New South
Wales respecting the procedure for the trial and conviction on indictment were to be
applied to the applicant's trial so far as they were applicable.
During the course of the trial, two jurors were discharged. The relevant provision
for the discharge of jurors is contained in s 22 of the Jury Act. Paragraph (b) of that
section provides that in the case of criminal proceedings, where, in the course of any
trial, any member of the jury dies or is discharged by the court (whether as being
through illness incapable of continuing to act or for any other reason), the jury shall be
considered as remaining properly constituted if the number of its members:
(i) is not reduced below ten,
(ii) is reduced below ten but approval in writing is given to the reduced number
of jurors by or on behalf of both the person prosecuting for the Crown and the
accused or each of the accused, or
(iii) is reduced below ten but not below 8 and the trial has been in progress for at
least 2 months.
The first juror was discharged under s 22 of the Jury Act because continued jury
duty would have clashed with prearranged travel commitments.4 The second juror
was discharged because continued service would have imperilled his business. In
accordance with s 22, the trial continued to conclusion with a jury of ten.
On Wednesday, 3 July 1996, the jury retired to consider its verdict. Section 54(b) of
the Jury Act provides that the jury in criminal proceedings, may, if the court so orders,
be permitted to separate at any time after they retire to consider their verdict. Pursuant
to this section, the jury was allowed by the trial judge to separate after each day's
deliberation and over the weekend of 6 and 7 July.5 The jury returned its unanimous
verdict of guilty on Monday, 8 July 1996. The trial judge then sentenced the applicant
to a term of imprisonment.
The applicant's appeal to the New South Wales Court of Criminal Appeal was
dismissed.6 Grove J (with whom Bruce J and Cooper AJ agreed) held that neither the
reduction of the jury from twelve to ten, nor the separation of the jury after the
commencement of deliberation, was incompatible with s 80 of the Constitution.
The applicant applied to the High Court for special leave to appeal. At the hearing
of the special leave application, Gaudron, Gummow and Hayne JJ referred to the Full
Bench so much of the special leave application as raised the question of whether s 68 of
the Judiciary Act operated at the trial of the applicant to 'pick up' (i) s 22 of the Jury Act
_____________________________________________________________________________________
3
Being a law investing any court of a State with federal jurisdiction: s 77(iii) of the
Constitution.
4
See the judgment of Kirby J in Brownlee v The Queen (2001) 75 ALJR 1180, 1195-6 for a
detailed account of the events leading up to the discharge of the two jurors.
5
Prior to the jury retiring, the jurors were not confined. They were permitted to separate
after each day's hearing – see ibid, 1196 (Kirby J); 1212 (Callinan J).
6
R v Brownlee (1997) 41 NSWLR 139.
2001
Brownlee v The Queen
321
____________________________________________________________________________________
and (ii) s 54(b) of that Act.7 That is, whether s 68 operated to apply those provisions to
the trial of the applicant.
Thus, it was not in issue that the trial of the applicant was a trial on indictment for
the purposes of s 80. Neither was it in issue before the High Court whether the trial
judge had properly exercised the discretionary powers under ss 22 and 54(b) of the
Jury Act.8 The applicant's objection was to the application of ss 22 and 54(b) of the Jury
Act by the trial judge because of their alleged incompatibility with s 80 of the
Constitution.
THE 'PICKING UP' OF THE STATE PROVISIONS
The applicant was tried and convicted of an offence against a law of the
Commonwealth and, therefore, the District Court of New South Wales was exercising
federal jurisdiction conferred upon it by s 68(2) of the Judiciary Act.9 However, the
vesting of that federal jurisdiction in a State court by s 68(2) is expressly subject to s 80
of the Constitution. Further, s 68(1) provides that State laws are 'picked up'10 only so
far as they are applicable. Thus, this was not a case in which s 80 operated to invalidate
a federal or state law.11 If the relevant state provisions were incompatible with s 80 of
the Constitution, then the state laws should not have been 'picked up' and applied in
federal jurisdiction. In short, if ss 22 and 54(b) were incompatible with s 80, the
applicant's trial would not have been held in accordance with the command in s 80 and
the conviction would be liable to be set aside.
DECISION OF THE COURT
Four separate judgments were delivered by the Court. Joint judgments were delivered
by Gleeson CJ and McHugh J, and by Gaudron, Gummow and Hayne JJ. Justices Kirby
and Callinan each delivered a separate judgment.
On the question of separation, the Court unanimously held that s 80 did not
mandate an absolute rule that juries could not separate after the deliberation process
had commenced.12 Their Honours also held unanimously that it was not an imperative
of s 80 that the number of jurors remain at twelve after the trial has commenced.13
Thus, ss 22(a)(i) and 54(b) of the Jury Act were not incompatible with s 80 and were
appropriately 'picked up' by s 68(1) of the Judiciary Act.
_____________________________________________________________________________________
7
See High Court transcript of proceedings, application for special leave to appeal, 11
February 2000.
8
See, for example, Brownlee v The Queen (2001) 75 ALJR 1180, 1184 (Gleeson CJ and McHugh
J).
9
See the discussion by Gaudron, Gummow and Hayne JJ, ibid, 1188. See also Kirby J, ibid,
1197.
10
Ibid, (Gaudron, Gummow and Hayne JJ). See also ibid, (Kirby J).
11
Ibid, 1189 (Gaudron, Gummow and Hayne JJ). See also Kirby J, ibid, 1198. Therefore, there
was no question of s 68 of the Judiciary Act being invalid.
12
Ibid, 1186 (Gleeson CJ and McHugh J); 1193 (Gaudron, Gummow and Hayne JJ); 1211
(Kirby J); 1216 (Callinan J).
13
Ibid, 1185 (Gleeson CJ and McHugh J); 1193-4 (Gaudron, Gummow and Hayne JJ); 1209-10
322
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APPROACH TO CONSTITUTIONAL INTERPRETATION AND TO S 80
OF THE CONSTITUTION
The Perennial Tension
The application of s 80 of the Constitution to the facts in this case provided another
opportunity for further debate on the proper method of constitutional interpretation.
Brownlee v The Queen again raised the perennial tension between the view that the
Constitution is to be interpreted as a statute,14 and the recognition that the
Constitution is a special statute intended to endure and 'apply to the varying
conditions which the development of our community must involve'.15 While this
tension has existed since the establishment of the Court, very few High Court Justices
have been prepared to engage in the debate of the proper judicial method for
constitutional interpretation. Certainly, crude tools such as the connotation and
denotation distinction have been used to resolve the tension in particular cases.
However, as Professor Zines points out, surely this and similar distinctions merely
restate the question.16
In recent years, McHugh J and Kirby J have debated their respective approaches
over the course of a number of cases.17 Adopting an orthodox approach, McHugh J
favours an approach that his Honour describes as textualism or semantic
intentionalism.18 Such an approach looks to the objective intention of the framers of the
Constitution. In his Honour's view, this approach neither involves a search for the
subjective intention of the framers, nor does it result in the Constitution having a
meaning fixed at 1900. His Honour is of the view that '[o]ur Constitution is constructed
in such a way that most of its concepts and purposes are stated at a sufficient level of
abstraction or generality to enable it to be infused with the current understanding of
those concepts and purposes.'19
Justice Kirby, on the other hand, rejects any approach to constitutional
interpretation that considers as crucial the intentions of the framers or the meaning of
constitutional words and phrases at 1900. His Honour favours an approach that looks
to the contemporary meaning of the Constitution.20 In fact, in his Honour's view, the
Court in recent years has adopted the approach that his Honour advocates.21 Although
a change of meaning has been accommodated by the use of the
connotation/denotation distinction, in his Honour's view, that device merely disguises
_____________________________________________________________________________________
14
Most classically stated in Amalgamated Society of Engineers v Adelaide Steamship Co Ltd
(Engineers' case) (1920) 28 CLR 129, but certainly adopted from the very beginning of the
Court - see Tasmania v The Commonwealth and Victoria (1904) 1 CLR 329, 358-60 (O'Connor J).
15
Jumbunna Coalmine, No Liability v Victorian Coal Miners' Association (1908) 6 CLR 309, 368.
16
Leslie Zines, The High Court and the Constitution (4th ed, 1997) 19.
17
See, for example, Re Wakim; Ex parte McNally (1999) 198 CLR 511; Eastman v The Queen
(2000) 74 ALJR 915; Grain Pool of Western Australia v Commonwealth (2000) 74 ALJR 648.
18
Eastman v The Queen (2000) 74 ALJR 915, 939.
19
Ibid, 940.
20
See, for example, his Honour's judgments in Grain Pool of Western Australia v The
Commonwealth (2000) 74 ALJR 648; Eastman v The Queen (2000) 74 ALJR 915.
21
Grain Pool of Western Australia v The Commonwealth (2000) ALJR 648, 670.
2001
323
____________________________________________________________________________________
'the fact that the Court's search has become one for the contemporary meaning of
constitutional words, rather than for the meaning which those words held in 1900.'22
Other than McHugh and Kirby JJ, on the whole, the other Justices have been
reluctant to enter into the debate explicitly.23 In submissions to the Court in Brownlee v
The Queen, the Attorney-General of South Australia argued that judicial 'diffidence' to
the adoption of a particular approach to constitutional interpretation was no longer
appropriate, and urged the Court clearly to identify a proper approach. However,
perhaps any 'diffidence' by some members of the High Court is to committing
themselves to the adoption of a particular label to describe the proper method for
constitutional interpretation. Perhaps, the search for a label obscures and complicates
the interpretive task in a particular case. The decision in Brownlee v The Queen,
provided an opportunity for the Court to respond to these questions.
Method for interpreting the Constitution - Judgments in Brownlee v The Queen
Gleeson CJ and McHugh J
In contrast to other judgments in which McHugh J explained his approach in detail, his
Honour's joint reasons with the Chief Justice provided very little elaboration of a
general interpretive approach. Their Honours referred to the use of history by the
Court in Cheatle v The Queen24 for the purpose of ascertaining the meaning of the
expression 'trial … by jury', and noted that in determining its meaning, it was both
proper and necessary for the Court to resort to historical considerations. In their
Honours' view, such an inquiry 'was undertaken because the exercise upon which the
Court was embarked involved ascertaining the meaning of an instrument which came
into being in a certain manner, at a certain time, and for a certain purpose'.25 A
consideration of the 'historical context' in which the Constitution was written and the
'genesis' of that instrument would be, in their Honours' view, 'potentially relevant to a
question about the meaning of the instrument.'26
However, such a consideration of the historical context was not undertaken for the
purpose of 'psychoanalysing the people who were involved in the framing the
Constitution'.27 In their Honours' view, the subjective understanding of the framers is
not the determining factor in a dispute about constitutional interpretation, but such an
understanding may reflect the historical context in which the Constitution was
written.28
Although their Honours clearly recognised that the historical context is relevant to
the process of resolving a problem as to the interpretation of the Constitution, in their
_____________________________________________________________________________________
22
Ibid.
23
Although, if there is indeed a real difference between the approach advocated by
McHugh J and that of Kirby J, there have been indications that the other Justices have
accepted a more conventional approach as evidenced by the joint judgment in Grain Pool of
Western Australia v The Commonwealth (2000) 74 ALJR 648.
24
(1993) 177 CLR 541.
25
Brownlee v The Queen (2001) 75 ALJR 1180, 1183.
26
Ibid.
27
Ibid.
28
Ibid.
324
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Honours' view, 'the significance of the circumstances surrounding the framing of the
instrument will vary according to the nature of the problem'.29
Despite the need to consider the historical context in which the document was
written, their Honours recognised the enduring nature of the Constitution. Since the
Constitution 'was brought into being as an instrument of government, which would
need to respond to changing circumstances and conditions over time', in their
Honours' view, it would be wrong to attribute to it a meaning 'frozen in time'.30
What appears to be missing from their Honours' interpretive framework is any
reference to the objective intentions of the framers. In previous judgments, McHugh J
had emphasised that in ascertaining the meaning of the Constitution, the 'search is
always for the objective intention of the makers of the Constitution'.31 The fact that, in
their Honours' view, the historical context might have a variable significance to the
process of ascertaining the meaning of the Constitution, suggests that any reference to
intention, whether objective or subjective, may only serve as a distraction from the true
inquiry, that is, 'the meaning of the Constitution'.
Gaudron, Gummow and Hayne JJ
The judgment of Gaudron, Gummow and Hayne JJ does not expressly elucidate a
general approach to constitutional interpretation. However, as will become apparent,
their Honours clearly recognised that the task may require, as was the case in relation
to s 80, a consideration of the historical context in which the Constitution was drafted.
Ultimately, though, the task is to ascertain the meaning of the Constitution in a
contemporary context.
Kirby J
Justice Kirby expressly recognised the tension between, on the one hand, the
recognition that the Constitution is a statute and, thus, that its meaning is uncovered
by general techniques of statutory construction and, on the other hand, the realisation
that the Constitution is a statute of a special kind. Consistently with previous attempts,
Kirby J sought in Brownlee v The Queen to elucidate his theory of constitutional
interpretation. His Honour recognised the submission of the Attorney-General of
South Australia that without an established approach to constitutional interpretation,
decisions inevitably will be inconsistent 'reflecting no more that the intuitive responses
to the text of the Constitution by different Justices (or of the same Justices at different
times).'32
In his Honour's view, constitutional expressions must be given their contemporary
meaning. Only such an approach would befit 'the character of a national basic law,
which is extremely resistant to formal amendment, but which must, of necessity, apply
to new, unforeseen and possibly unforeseeable circumstances'.33
His Honour then attempted to illustrate the inappropriateness of adopting a 1900
criterion for ascertaining the content of 'trial … by jury' in s 80. His Honour noted that
at 1900, all jurors were male; they had to have property qualifications of some kind;
_____________________________________________________________________________________
29
Ibid.
30
Ibid.
31
Eastman v The Queen (2000) 74 ALJR 915, 940.
32
33
Ibid, 1203.
2001
325
____________________________________________________________________________________
and exemptions from jury service were designed to single out characteristics thought,
at that time, to be essential to the type of 'right thinking man' for jury service.34 His
Honour noted that the decision in Cheatle v The Queen considered gender and property
qualifications as undesirable and incompatible with 'a contemporary institution' or
'modern democratic society'. Thus, his Honour reasoned that the Court in Cheatle v The
Queen must have adapted the institution of trial by jury to modern Australian
conditions. His Honour argued that once such considerations are adopted for
modifying features of the trial by jury that were considered essential at 1900, then such
an approach must be adopted consistently when considering other features of trial by
jury. As his Honour states, '[e]ither one adheres to the historical notions of 1900, and
takes the mind back to what the framers knew and understood about jury trial, or one
accepts that the constitutional expression must be given a "contemporary" meaning, as
befits a "modern democratic society".'35
Indeed, in his Honour's view, since the framers lived in a different world, the
search for the framers' intention would be misleading and prone to result in serious
error. Notwithstanding that conclusion, his Honour does not entirely dismiss historical
considerations. In his Honour's view, a consideration of history, as in the debates that
preceded adoption of the Constitution, might not be 'wholly irrelevant', but has limited
utility when the search is for the contemporary meaning of words and phrases.36
His Honour concluded his discussion on interpretive method by rejecting the
approach to constitutional construction that would limit the meaning to be given to the
expression 'trial … by jury' in s 80 to the notions held about the mode of trial by the
framers of the Constitution in 1900. His Honour recognised that it will 'take time for
the search for constitutional meaning by reference to the imputed "intention of the
framers" in 1900 to be abandoned in favour of a search for the essential characteristics
of the words and phrases having enduring constitutional operation'.37
The remaining judge, Justice Callinan, did not seek to elucidate a general approach
to constitutional interpretation.
Interpretation of Section 80
This in fact was an easy case. Even by federation, there was no clearly established
universal rule preventing the reduction of jurors from twelve to ten after the trial had
begun.38 Similarly, by federation, there were already inroads being made into the strict
common law rule that a jury could not separate until verdict.39 Thus, having briefly
_____________________________________________________________________________________
34
Ibid, 1204.
35
Ibid.
36
Ibid.
37
Ibid, 1207.
38
There was legislation in Victoria, Queensland, Western Australia and New Zealand which
permitted a jury to continue with fewer than twelve jurors – see ibid, 1184-5 (Gleeson CJ
and McHugh J); 1192 (Gaudron, Gummow and Hayne JJ); 1206 (Kirby J); 1215 (Callinan J).
In fact, prior to federation, even the common law position was not entirely clear – see ibid
1184 (Gleeson CJ and McHugh J); 1192 (Gaudron, Gummow and Hayne JJ); 1215
(Callinan J).
39
Although at federation jurors could not separate after they had retired for deliberation, the
strict common law rule against separation prior to deliberation had been relaxed
progressively by 1900 – see ibid, 1185 (Gleeson CJ and McHugh J); 1191-2 (Gaudron,
Gummow and Hayne JJ); 1216 (Callinan J).
326
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surveyed relevant case law and legislation, both British and colonial, Gaudron,
Gummow and Hayne JJ concluded that, at the time of federation, the 'absolute
sequestration of the jury was no longer regarded as an essential element of trial by
jury; likewise, the necessity to swear in a fresh jury if a juror died or was taken ill.'40
Therefore, even on a strict originalist approach to interpreting the Constitution,
those characteristics could not have been considered by the framers to be central to the
concept of a trial by jury. However, their Honours proceeded to consider how s 80
should be interpreted to reflect the enduring nature of the Constitution.
It is clear that the Court has affirmed the distinction between essential and nonessential elements of a trial by jury employed by the Court in Cheatle v The Queen for
the purposes of determining which characteristics of a 'trial … by jury' are
constitutionally entrenched.41 For example, Gaudron, Gummow and Hayne JJ
described the task as the identification of whether the provisions of the Jury Act merely
changed the inessential elements of the trial process, or destroyed an essential or
fundamental feature of the institution.42 Their Honours then quoted, with apparent
approval, from an article by Professor A W Scott:43
Only those incidents which are regarded as fundamental, as inherent in and of the
essence of the system of trial by jury, are placed beyond the reach of the legislature.
However, the Court in Brownlee v The Queen refined the constitutional analysis
further. The Court recognised that the institution of trial by jury performs a particular
constitutional function and is designed to achieve certain ends or purposes.44 Thus, as
stated by Gaudron, Gummow and Hayne JJ, the classification of essential features of
the institution of trial by jury involves an appreciation of the objectives that institution
advances or achieves.45 In other words, to perform that function in a constitutionally
compatible manner, the institution must be characterised by certain essential
functional attributes.46 History reveals the ends or purposes sought to be achieved by
the institution and that its essential attributes might be achieved by different rules of
practice and procedure depending on the social context.47 Rules which may be seen at
one time to be indispensable to the achievement of the essential objectives of the
institution might, at a later time, not be characterised as central to, or even compatible
with, those essential objectives.
Thus, the Court has retained the distinction between essential and inessential
attributes of the institution of a trial by jury, but has applied this distinction in a more
sophisticated way that results in a differentiation between the essential functional
_____________________________________________________________________________________
40
Ibid, 1192.
41
42
Ibid, 1190.
43
AW Scott, 'Trial by Jury and the Reform of Civil Procedure' (1918) 31 Harvard Law Review
669, 671.
44
Brownlee v The Queen (2001) 75 ALJR 1180, 1183 (Gleeson CJ and McHugh J); 1190
(Gaudron, Gummow and Hayne JJ); 1208 (Kirby J).
45
Ibid, 1190.
46
(Kirby J).
47
Ibid, 1184 (Gleeson CJ and McHugh J); 1191 (Gaudron, Gummow and Hayne JJ).
2001
327
____________________________________________________________________________________
attributes of a trial by jury and the means by which those functional attributes are
achieved.
Any difference among the members of the Court48 lies in the extent to which the
social context and history bear upon this analysis. The joint judgments of Gleeson CJ
and McHugh J, and Gaudron, Gummow and Hayne JJ, consider that the contemporary
social context is relevant to the question of whether contemporary practice is
compatible with the essential functional attributes. Indeed, that assessment can only be
made in a contemporary context. But, for their Honours, the essential attributes
themselves cannot be determined by contemporary standards. In other words, the
function of the institution cannot be ascertained by reference to contemporary
standards. As Gleeson CJ and McHugh J said:
If the meaning of 'trial … by jury' is to be determined solely by reference to contemporary
standards, there is nothing to argue about. Contemporary standards are reflected in the
Jury Act.49
On the face of Kirby J's judgment, it appears that his Honour rejects such an
approach. His Honour's approach searches for the:
[E]ssential characteristics of 'trial … by jury', referred to in s 80 of the Constitution, as that
expression is to be understood as a constitutional requirement, viewed in its context in
Ch III and from the perspective of contemporary considerations that identify the essential
characteristics of that mode of trial in Australia.50
However, on closer analysis, his Honour's approach may properly be seen as
consistent with the views expressed in the joint judgments.51 His Honour certainly
rejects any 'approach to constitutional construction that would limit the meaning to be
given to jury trial in s 80 to the notions held about that mode of trial by the framers of
the Constitutional in 1900.'52 However, in truth, that is not what the joint judgments
seek to do. The joint judgments seek to identify the essential functional attributes of a
trial by jury by reference to the historical inception of that institution, but the
assessment of compatibility of laws with those functional attributes is an exercise
undertaken in a contemporary context. Indeed, Kirby J implicitly recognises the
immutable character of the functional attributes when his Honour describes the task of
interpretation as 'a search for the essential characteristics of the words and phrases
having enduring constitutional operation'.53
The use of history and a reference to the framers' intention might also be said to
distinguish Kirby J's approach to the interpretation of s 80 and the approach of the joint
judgments. However, such apparent differences cannot really be said to withstand
closer analysis.
As to the use of history, first, Kirby J recognises that history is not 'wholly
irrelevant'.54 Secondly, and more fundamentally, the joint judgments do not seek to
_____________________________________________________________________________________
48
Other than Callinan J who did not undertake an extensive jurisprudential analysis.
49
50
Ibid, 1207.
51
Graeme Hill has noted that there 'may be very little difference, in practice, between
McHugh and Kirby JJ's approaches to interpretation' - see '"Originalist" vs "Progressive"
Interpretations of the Constitution – Does it Matter?' (2000) 11 Public Law Review 159, 162.
52
Ibid.
53
Ibid (emphasis added).
54
Ibid, 1204.
328
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____________________________________________________________________________________
employ history as a mechanism for entrenching rules of practice. Their Honours look
to history as a means for gaining some insight into what the essential functional
attributes of a trial by jury are. As the Court stated in Cheatle v The Queen:
It is well settled that the interpretation of a constitution such as ours is necessarily
influenced by the fact that its provisions are framed in the language of the English
common law, and are to be read in the light of the common law's history.55
The consideration of history might reveal the procedural means (that is, the rules of
practice) that were once considered necessary for the achievement of the functional
attributes, but it does not fix the words 'trial … by jury' in s 80 with those temporal
understandings. In fact, a consideration of history might reveal that rules of practice,
while consistent with the essential functional attributes at 1900, are incompatible with
a contemporary understanding of those functional attributes. Thus, gender and
property qualification are incompatible with modern understandings of the
institution.56 Similarly, inflexible rules preventing a reduction in jurors from twelve to
ten and preventing separation of jurors might be seen in a contemporary context as
incompatible with the functional attributes.
Moreover, any difference in the judgments by reason of the use of the framer's
intention is more apparent than real. Certainly, Kirby J rejects any approach that
considers as important the intention of the framers. But, subject to one exception to be
mentioned below, the joint judgments also do not place any such reliance on the
framer's intention. First, Gleeson CJ and McHugh J emphasise that the subjective
understanding of the framers is only relevant to the meaning of the Constitution
because it may reflect 'the historical context in which [the] instrument was written.'57
Thus, the framer's subjective intentions do not give content to the essential functional
attributes of the institution of trial by jury.
The joint judgment of Gaudron, Gummow and Hayne JJ, with one unfortunate
exception, does not give any regard to the intention of the framers. The exception
appeared when their Honours dealt with the question of whether the jury can be
permitted to separate. In that context, their Honours referred with approval to an
extract from the judgment of Grove J in the court below. Grove J held that:
[A]n understanding and construction should be given to the words in s 80 that the
framers of the constitutional guarantee intended that a jury exercise its function without
fear or favour and without undue influence in the context of community standards and
expectations as current from time to time.58
It is unclear whether this was a conscious reference to the intention of the framers.
However, if it was, it is clear that their Honours could not have meant the subjective
intentions of the framers. No reference was made by their Honours to the debates. To
the extent that their Honours intended to refer to the objective intention of the framers,
it is merely another means of identifying the task before the Court, that is, one of
finding the essential functional attributes of an institution that existed at common law.
That inquiry is not advanced by reference to the notion of objective intention and,
indeed, can only serve to mislead and distract attention from the proper inquiry. In
fact, even McHugh J refrained from using such language.
_____________________________________________________________________________________
55
(1993) 177 CLR 541, 552.
56
Cheatle v The Queen (1993) 177 CLR 541.
57
58
(1997) 41 NSWLR 139, 145-6.
2001
329
____________________________________________________________________________________
Thus, at the very least, five Justices have settled on a framework for the
interpretation of the words 'trial … by jury' in the s 80. It may in fact be that Kirby J's
approach can also be reconciled with the approach expressed in the two joint
judgments. The Court will search for the essential functional attributes of the
institution of a 'trial … by jury', and assess contemporary trial standards by reference
to those essential attributes. In determining which elements are essential, the Court
will look to the function performed by a jury trial.
As to what those essential functional attributes might be, the various Justices made
the following observations. Gleeson CJ and McHugh J agreed with the observations of
White J in Williams v Florida59 that the purpose of the jury trial is to prevent oppression
by the government. Given this purpose, White J was of the view that 'the essential
feature of a jury obviously lies in the interposition between the accused and his accuser
of the commonsense judgment of a group of laymen, and in the community
participation and shared responsibility that results from that group's determination of
guilt or innocence'.60 Undoubtedly based on these observations, their Honours
identified essential functional attributes of a 'trial … by jury' as independence,
representativeness and randomness of selection, and the need to maintain the
prosecution's obligation to prove its case beyond reasonable doubt.61
Gaudron, Gummow and Hayne JJ made similar observations. Their Honours also
identified the purpose of a 'trial … by jury' as directed to the determination of guilt
according to law, with the interposition between the accused and the prosecution of
the 'commonsense judgment of a group of laymen'.62 For the achievement of this
purpose, the jury must be able to 'deliberate upon its verdict uninfluenced by an
outsider to the trial process'63. In short, the jury must be independent. In the context of
jury size, their Honours observed that the jury must be 'large enough to promote
measured deliberation and [indicate] to the community sufficient participation by its
members to vindicate the outcome'.64
Justice Kirby also identified the prevention of oppression as an important purpose
of a trial by jury.65 His Honour identified a list of essential functional attributes. As to
jury size, essentially, it must be large enough to promote group deliberation66 and to
ensure that a cross-section of community opinion will be expressed67. His Honour also
noted that because s 80 takes its place in Chapter III of the Constitution, 'it is essential
that it should continue to hold public confidence and "through the involvement of the
_____________________________________________________________________________________
59
399 US 78 (1970).
60
Ibid, 100.
61
62
Ibid, 1192 quoting from White J in Williams v Florida 399 US 78, 100 (1970). As their
Honours noted, it is an 'instrument in the administration of justice' ibid, 1190 quoting from
Ex parte Peterson (1920) 253 US 300, 309-10 (Brandeis J).
63
Ibid, 1193. Or, as put by Grove J in the Court below, and approved by their Honours, 'that a
jury exercise its function without fear or favour and without undue influence …' ibid.
64
Ibid, 1193.
65
Ibid, 1209.
66
Which might include guarding against the force of strong personalities on the jury – see
ibid.
67
This would include the objective of ensuring that the jury composition reflects the variety
of opinions that exist in the community concerning society, the law and public authority,
and minorities within the community – see ibid.
330
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public, societal trust in the system as a whole"'.68 Additionally, his Honour noted that
given that contemporary trials can be extremely complex and lengthy, the
inconvenience to the community, to jurors and the cost to the parties should not
needlessly be incurred by unnecessary termination and re-litigation of jury trials where
jurors die, fall ill or are otherwise incapable of continuing to act.69 This last
consideration appears not to be an essential functional attribute, but rather a
consideration to be taken into account when assessing contemporary standards of
practice against essential functional attributes.
Justice Callinan also appears to identify as essential attributes, first, the
independence of the jury from influences70 and, secondly, in terms of jury size, the
representativeness of the community.71
The Justices were unanimously of the view that allowing separation after
retirement for deliberation, and the reduction in jury size from twelve to ten during the
course of the trial, were contemporary practices that were not incompatible with the
essential features of a 'trial … by jury'.
The essential functional feature of independence did not require an absolute rule
barring separation. In fact, as noted by Gleeson CJ and McHugh J it would be 'an
unnecessarily oppressive means of achieving the desired end'.72 Neither was it
incompatible with the attribute of group deliberation. As Gaudron, Gummow and
Hayne JJ said, 'strict confinement may have retarded rather than encouraged measured
group deliberation and, in former times, appeared to be calculated to pressure jurors to
reach a unanimous verdict and to do so with expedition'.73 Moreover, Kirby J noted
that the representativeness of the jury would be diminished if such an absolute rule
resulted in the exclusion of some cross-sections of the community.74
As to the reduction in number of jurors from twelve to ten during the trial, Gleeson
CJ and McHugh J concluded, with little elaboration, that such a system is not
inconsistent with the objectives of independence, representativeness and randomness
of selection, or with the need to maintain the obligation of proof beyond a reasonable
doubt.75
Gaudron, Gummow and Hayne JJ considered that starting with twelve jurors was
necessary to ensure a size large enough to promote deliberation and to indicate to the
community sufficient participation by its members.76 However, their Honours noted
_____________________________________________________________________________________
68
Ibid. His Honour quoted from the Canadian Supreme Court decision in R v Sherratt [1991]
1 SCR 509, 524.
69
Ibid.
70
Ibid, 1216.
71
Ibid.
72
Ibid, 1186.
73
Ibid, 1192-3. Such an assessment was undertaken in a contemporary context, in particular,
taking into account the greater trust placed in modern jurors 'to heed the directions of the
presiding judge' ibid, 1193. Kirby J also noted that strict rules of sequestration would result
in circumstances that were not conducive to the proper performance of the jury function
ibid, 1210.
74
For example, parents with young children or persons caring for sick and elderly relatives
ibid, 1210.
75
76
Ibid, 1193.
2001
331
____________________________________________________________________________________
that history at the time of federation showed that a reduction to ten jurors was seen as
compatible with the need to ensure observance of the deliberative process required by
the institution of trial by jury.77 The legislation in place at the time of federation had
already adapted the institution to the perceived needs of the time, 'whilst retaining the
substantial character of the institution as an efficient instrument in the administration
of justice'.78 Their Honours concluded that current legislation that allowed a reduction
to ten jurors was not incompatible with s 80 of the Constitution. This conclusion was
reinforced by the contemporary context of lengthy and complex trials.79 Their Honours
accepted the observations by Gleeson CJ and Hayne J in Wu v R80 to the effect that
requiring a full complement of twelve jurors for the whole trial would place
considerable burden not only on the accused, but also upon the witnesses and juries.81
Thus, their Honours were concerned to ensure that the institution remained 'an
efficient instrument in the administration of justice'.82
Justice Kirby noted the dangers in allowing a reduction in jury size from the
traditional number of twelve. A reduction in number would increase the risk that the
jury might not be representative of the community.83 There would also be a 'danger to
the community's perception of the impartiality of the jury …'.84 However, like
Gaudron, Gummow and Hayne JJ, Kirby J considered the longer length of modern
criminal trials, and the greater complexity and expense involved.85 In his Honour's
view, '[n]othing would be more likely to undermine the survival of jury trial'86 than an
inflexible rule that the jury reach its verdict with twelve members.
Justice Callinan considered the reduction to ten jurors to be valid because 'there is
no reason in principle why a jury of twelve persons should necessarily be considered
more representative of the community than a jury of 10 persons or 14 …'.87
Consequently, their Honours unanimously upheld the application of ss 22(a)(i) and
54(b), although their Honours did not justify their conclusions by reference to the same
essential functional characteristics. Although the differences were not significant in the
circumstances of this case, it is clear that such differences might be crucial to other
legislative provisions prescribing rules of practice and procedure for jury trials.88
_____________________________________________________________________________________
77
Ibid.
78
Ibid, 1193-4 adopting the words of Brandeis J in Ex parte Peterson 243 US 300, 309-310
(1920), quoted by Gaudron, Gummow and Hayne JJ at ibid, 1190.
79
In their Honours' view, this reflected 'not only the increased complexity of the substantive
issues to be tried but the expansion of procedural rights favouring the accused' - Brownlee v
The Queen (2001) 75 ALJR 1180, 1193.
80
(1999) 199 CLR 99, 106.
81
82
Ibid, 1194.
83
Ibid, 1208.
84
Ibid.
85
Ibid, 1209.
86
Ibid, 1210.
87
Ibid, 1216.
88
See the similar observations made in relation to Grain Pool of Western Australia v The
Commonwealth (2000) 74 ALJR 648; see Hill above n 54, 160.
332
Federal Law Review
Volume 29
____________________________________________________________________________________
COMMENT ON
CONSTITUTION
THE
METHOD
FOR
INTERPRETING
THE
Only Kirby J and, to some extent, Gleeson CJ and McHugh J, accepted the invitation
from the Attorney-General of South Australia to set out a general approach to
interpreting the Constitution. Thus, the decision in Brownlee v The Queen does not
appear to progress the debate much further in the sense that the other Justices have not
committed themselves to adopting a particular label to describe the proper interpretive
method. However, there is a clear recognition that application of an interpretive
method critically depends on the constitutional provision being interpreted. For
instance, when speaking of the role of history in the interpretation of the Constitution,
Gleeson CJ and McHugh J said that the 'significance of the circumstances surrounding
the framing of the instrument will vary according to the nature of the problem.'89
Thus, when interpreting s 80, it is important to recognise that s 80 takes its place in
Chapter III of the Constitution. It encapsulates a particular manifestation of an organ
or institution of government, the judiciary: specifying what form that organ or
institution should take in the circumstances described in s 80. Therefore, when
interpreting the meaning of the expression 'trial … by jury' in s 80 of the Constitution,
it is essential to appreciate the purposes for which the institution was entrenched in the
Constitution. It is by reference to those purposes that the institution's essential
character may be determined, and it is by reference to those purposes that the scope of
the constitutional requirements may be ascertained.
The positioning of s 80 in Chapter III has a number of consequences. First, in
determining which legislative provisions contravene the requirements of s 80, due
regard must be had to the constitutional division of power. Thus, when comparing
contemporary standards with the requirements of s 80, the content of the constitutional
requirements cannot be ascertained by reference to legislative initiatives. There is
danger in an approach that focuses exclusively on contemporary standards. There is
much force in the comments of Gleeson CJ and McHugh J that '[i]f the meaning of "trial
… by jury" is to be determined solely by reference to contemporary standards, there is
nothing to argue about. Contemporary standards are reflected in the Jury Act.'90
If Kirby J's approach were confined to giving content to the expression 'trial … by
jury' by reference to contemporary standards in isolation, his Honour would be in
danger of ignoring the constitutional division of power. However, in truth, his
Honour's approach is more sophisticated: it searches for enduring essential functional
attributes, and applies those attributes to the legislative provisions in question in a
contemporary context.
Secondly, the positioning of s 80 in Chapter III helps define the essential functional
attributes. Thus, the maintenance of rules of practice that undermine public confidence
in the judiciary, or undermine the survival of the institution of jury trial, would clearly
not be required by s 80.
Thirdly, along with all courts vested with judicial power, a trial by jury is an
institution of government. As such, it must reflect constitutional values. In other
words, it must not be characterised by attributes that are incompatible with a
_____________________________________________________________________________________
89
Ibid, 1183.
90
Ibid.
2001
333
____________________________________________________________________________________
'contemporary institution' or a 'modern democratic society'.91 It is partly for this reason
that gender and property qualifications for jurors are incompatible with s 80. Such
requirements are offensive to constitutional values. It would be intolerable for similar
qualifications to be imposed on the people for entitlement to vote for Parliament. Thus,
it is intolerable for the same qualification to be placed upon the people when they
participate more directly in the governmental institution of 'trial … by jury'. Certainly,
the decision in Cheatle v The Queen can be explained simply on the basis that gender
and property qualifications were incompatible with the essential functional attribute of
representativeness. However, arguably, that functional attribute is, itself, a reflection of
constitutional values.
Although the Court has not unanimously and explicitly assigned a label to the
approach it has adopted to the interpretation of the Constitution, it has at the very least
recognised that the approach adopted for the interpretation of the Constitution will
depend upon the provision in question. Although not expressed in these terms, the
Justices appear to accept that the interpretation of s 80 must depend upon the fact that
a 'trial … by jury' is a judicial institution of government. It was included in the
Constitution for certain purposes, and its essential attributes must be determined by
reference to the constitutional function that it performs. Indeed, it may be that the
search for a particular label for the approach to be adopted might be a distraction from
the interpretive task to be performed.
Reduction of Jury Below Ten
Paragraphs 22(a)(ii) and (iii) of the Jury Act allow the number of jurors to be reduced
below ten in certain circumstances. On the facts in this case, it was not necessary for
the Court to consider whether s 22(a)(ii) and (iii) are compatible with s 80 of the
Constitution.92 Nevertheless, Gaudron, Gummow and Hayne JJ indicated that 'a real
question arises'93 as to whether a reduction below ten might be incompatible with s 80.
Their Honours suggest that ten is the minimum to which a jury could be reduced
consistently with the maintenance of the requisite deliberative process.94
However, it is not clear what conclusion the other Justices would reach. When
identifying the essential features of a jury, Gleeson CJ and McHugh J referred, with
apparent approval, to the judgment of White J in Williams v Florida.95 In the passage
extracted in the judgment of Gleeson CJ and McHugh J, White J held that a jury of six
would satisfy the functional attributes of a jury trial identified by Gleeson CJ and
McHugh.96 Applying the functional attribute of representativeness, Callinan J saw no
reason in principle why twelve should be more representative of the community than
ten or fourteen. His Honour left open the possibility of a number lower than ten being
_____________________________________________________________________________________
91
Cheatle v The Queen (1993) 177 CLR 541, 560.
92
See for example the judgment of Gaudron, Gummow and Kirby JJ in Brownlee v The Queen
(2001) 75 ALJR 1180, 1189. To the extent that a reduction could be made with the consent of
the accused under s 22(a)(ii), the question of waiver arises. This will depend upon whether
the decision in Brown v The Queen (1986) 160 CLR 171 is overruled by the Court.
93
94
Ibid, 1193.
95
399 US 78 (1970) cited at (2001) 75 ALJR 1180, 1185.
96
Their Honours noted that White J's observations applied 'with even greater force' to a
system allowing a reduction from twelve to ten – ibid.
334
Federal Law Review
Volume 29
____________________________________________________________________________________
compatible with s 80.97 In assessing compatibility with s.80, no distinction was drawn
in the judgment of Gleeson CJ and McHugh J, or by Callinan J, between the requisite
number of jurors at the commencement of the trial and the number to which a jury
could be reduced. There is nothing to suggest that their Honours considered the
distinction to be a material one in this respect.
Justice Kirby also recognised the inevitable task of drawing lines.98 But his Honour
did not assess the question of a reduction in the number of jurors against the functional
attributes of maintaining the deliberative process or representativeness. His Honour
recognised the inherent risk to the degree of representativeness by a reduction in jury
size.99 However, that risk was outweighed by the threat to the institution of jury trial if
a strict rule were adopted prohibiting any reduction in number. Thus, the question for
Kirby J will be whether a rule prohibiting the reduction below ten would be likely to
'undermine the survival of jury trial'.100 Thus, it is not entirely clear whether the other
provisions of s 22 of the Jury Act allowing for a reduction below ten would be held to
be valid.
Jury of Less Than Twelve
The question of whether a jury could be comprised initially of less than twelve jurors
was also not before the Court. Although Gaudron, Gummow and Hayne JJ recognised
that the constitutionality of empanelling a jury of less than twelve was not in issue101,
nevertheless, their Honours were prepared to assume that it is 'a central characteristic
of trial by jury and mandated by s 80 of the Constitution'102 that a jury of twelve be
empanelled.
Their Honours held that such a requirement was supported on 'utilitarian' grounds:
'[i]t ensures that the trial gets underway with fact-finding entrusted to a group of
laymen which is large enough to promote measured deliberation and indicates to the
community sufficient participation by its members to vindicate the outcome'.103
However, the requirement of a proper deliberative process has no obvious
relevance at commencement of the trial. The question as to the proper size of the jury
for the purposes of ensuring a proper deliberative process only arises once the jury
retires to deliberate.
In light of their Honours' conclusion that a jury size of ten at the time of
deliberation ensures 'observance of the deliberative process required by the institution
of trial by jury',104 it is unclear how a jury of the same size at a time anterior to the
deliberation process would undermine the process of deliberation. At the time of
deliberation, the nature of the deliberative process of ten jurors is logically the same
whether the trial commences with twelve or ten.
_____________________________________________________________________________________
97
Ibid, 1216. His Honour acknowledged that a line had to be drawn, but did not speculate as
to where that line might be drawn – ibid.
98
Ibid, 1210.
99
Ibid, 1208.
100 Ibid, 1210.
101 Ibid, 1188.
102 Ibid, 1193. See also ibid, 1194.
103 Ibid, 1193.
104 Ibid.
2001
335
____________________________________________________________________________________
As indicated though, their Honours also referred to the 'utilitarian' ground of
ensuring that the jury commences with twelve so as to indicate to the community
sufficient participation by its members to vindicate the outcome. Although the
community participates in a trial from its commencement, surely the relevant concern
of the community to ensure sufficient participation to vindicate the outcome extends
for the duration of trial until verdict. Whether there has been sufficient community
participation to vindicate the outcome must be assessed at the time the jury deliberates
on its verdict, not at the time the trial commences. Thus, this 'utilitarian' ground
appears to be inconsistent with their Honours' finding that a jury of ten (reduced from
twelve) at the verdict stage is compatible with s 80.
The joint judgment of Gleeson CJ and McHugh J, and the judgment of Callinan J,
appear to be more receptive to the idea that a jury commencing with ten is compatible
with s 80. As indicated, Gleeson CJ and McHugh J quote, with apparent approval, from
the judgment of White J in Williams v Florida.105 The passage extracted states that a jury
comprised of six members would be compatible with the functional attributes
identified by Gleeson CJ and McHugh J. Callinan J also observes that there is no reason
in principle why a jury of twelve would be more representative that a jury of ten.106
It is in Kirby J's judgment that a reason may be found for distinguishing, for the
purposes of s 80, between the reduction in number from twelve to ten, and starting
with a jury of ten. His Honour did not directly address the question of whether a jury
could start with ten other than to comment that such a practice would be a departure
'both from longstanding English and Australian legal prescription'.107 However, his
Honour's reasons for holding s 22(a)(i) of the Jury Act to be valid are also illuminating
in this respect.
As indicated above, his Honour acknowledged the inherent erosion of
representativeness by reducing the jury from twelve to ten, but held that the erosion in
that essential functional attribute was warranted for the purpose of preserving the
public confidence in the jury and, thus, preserving the survival of the jury trial. Such a
justification would warrant a mechanism for allowing the trial to continue with a jury
reduced in number from twelve to ten, but may not justify a jury starting with ten.
Reserve Jurors
In Ah Poh Wai v The Queen,108 the Western Australian Court of Criminal Appeal upheld
the use of 'reserve jurors' pursuant to s 18 of the Juries Act 1957 (WA). The Western
Australian system allows up to six reserve jurors to hear the evidence and participate
in the trial process. However, reserve jurors do not deliberate with the other jurors
unless one or more of the original twelve jurors is unable to continue. Reserve jurors
can only replace jurors prior to the time the jury retires for deliberation. If a reserve
juror is not called upon to replace a juror at the time the jury retires to consider its
verdict, that reserve juror is discharged. Thus, under the system, the verdict is
delivered by a panel of twelve jurors.109 The Court of Criminal Appeal (Malcolm CJ,
_____________________________________________________________________________________
105 399 US 78 (1970) cited at (2001) 75 ALJR 1180, 1185.
106 Ibid, 1216.
107 Ibid, 1209.
108 (1995) 15 WAR 404.
109 Section 646 of the Criminal Code (WA) allows a trial judge to reduce the number of jurors
from twelve to ten in certain circumstances. However, s 646 does not apply if there are
336
Federal Law Review
Volume 29
____________________________________________________________________________________
Pidgeon and Steytler JJ) held that the system of reserve jurors prescribed by s 18 of the
Juries Act 1957 (WA) was not incompatible with the essential features of a 'trial … by
jury' in s 80 of the Constitution. An application for special leave to appeal to the High
Court from that judgment was refused by a majority of the Court.110 Announcing the
decision of the Court, Dawson J said:
By a majority the Court is not persuaded that the Western Australian Court of Criminal
Appeal was in error in reaching the conclusion, which it did, that the participation of
reserve jurors did not infringe any requirement of s 80 of the Constitution.111
In their joint judgment in Brownlee v The Queen, Gaudron, Gummow and Hayne JJ
noted that nothing in their Honours' reasons for judgment called into question under s
80 the use of reserve jurors. On the analysis in each of the judgments, this conclusion
must be correct. The availability of additional jurors, in the event that one or more of
the original twelve is unable to continue, in no way compromises the essential
functional attributes of a trial emphasised in the various judgments. Such a system
results in a verdict being given by a full complement of twelve jurors and thus
maintains the representativeness of the jury and ensures the observance of the
deliberative process. Such a system also minimises the 'needless and accidental
termination of many jury trials'112 and, thus, satisfies Kirby J's concern that the
institution should continue to hold public confidence.
Requirement of Leave to Re-Open a Case
The Attorney-General of the Commonwealth sought leave to re-open the decision in
Brown v The Queen.113 As Gleeson CJ and McHugh J state in their judgment, '[h]e
accepted that he needed leave'.114 During the course of the hearing, a majority of the
Court refused leave to re-open Brown v The Queen.115 The premise underlying the
refusal of leave to re-open a case is that leave to re-open is required. A question arises
as to whether the requirement that leave be obtained is incompatible with the
Constitution.
Justice Kirby was the only judge to consider this issue. His Honour was of the view
that leave is not required as such a procedure is incompatible with the Constitution.116
His Honour was echoing similar comments made by Deane J in Evda Nominees Pty Ltd
v Victoria.117 Given the nature of the Constitution as an enduring document, Kirby J
was of the view that 'it is imperative to keep the mind open to the possibility that a
new context, presenting different needs and circumstances and fresh insights, may
_____________________________________________________________________________________
sufficient reserve jurors to have a jury of twelve persons including replacements – see
s 18(5) of the Juries Act 1957 (WA).
110 See High Court transcript of proceedings, application for special leave to appeal, 5 August
1996. The Court comprised Dawson, McHugh and Kirby JJ for the hearing of the special
leave application.
111 Ibid.
112 Brownlee v The Queen (2001) 75 ALJR 1180, 1210 (Kirby J).
113 (1986) 160 CLR 171.
114 Brownlee v The Queen (2001) 75 ALJR 1180, 1186.
115 Ibid (Gleeson CJ and McHugh J); 1189 (Gaudron, Gummow and Hayne JJ); 1216
(Callinan J); 1199 (Kirby J dissenting).
116 Ibid, 1199.
117 (1984) 154 CLR 311, 316.
2001
337
____________________________________________________________________________________
convince the Court, in later times and of later composition, that its predecessors had
adopted an erroneous view of the Constitution'.118 His Honour continued:
It is a party's right to advance before this Court any argument that may assist the Court
to reach the correct exposition of the meaning of the Constitution. It is incompatible with
the constitutional function of the Court to impose on a party a procedural obstacle that
might impede that party's submissions to the Court on such a subject.119
Justice Kirby's choice of words in restricting the right to a 'party' was deliberate. His
Honour was not convinced that the position of the interveners would be the same.
However, since the Commonwealth Director of Public Prosecutions adopted the
Commonwealth's submissions as to the re-opening of Brown v The Queen, it was not
necessary for his Honour to explore the question of an intervener's right further.120
If leave to re-open a case is not required, it is unclear why the position would differ
depending upon whether the leave is sought by a party or an intervener. If the
objective is to reach 'the correct exposition of the meaning of the Constitution', then
surely this goal can be facilitated by an intervener in the same way as it can be
achieved by a party. This is especially so in light of the important role of the AttorneysGeneral of the Commonwealth and States in constitutional cases as reflected in s 78A
of the Judiciary Act 1903 (Cth).
Re-Opening of Brown v The Queen
As indicated, the Attorney-General for the Commonwealth applied for leave to reopen the High Court's decision in Brown v The Queen.121 A majority of the Court in
Brown v The Queen held that a trial by jury could not be waived by an accused. It was
argued by the Attorney-General for the Commonwealth that the applicant in Brownlee
v The Queen had waived his right to a trial by jury by not objecting to the discharge of
the first juror, and by applying to have the second juror discharged.
Because of the way that the Justices (other than Kirby J) resolved the issues, it was
unnecessary for their Honours to consider the question of whether the applicant had
waived his right to a trial by jury and, thus, it was unnecessary for their Honours to
consider whether Brown v The Queen should be overruled. Justice Kirby, however,
approached the issues from the other end. In his Honour's view, if a trial by jury could
be waived, and if the applicant had in fact waived that right, then it would be
unnecessary to consider whether the trial received by the applicant conformed with the
constitutional description of a 'trial … by jury' in s 80.
As a question of fact, his Honour held that the applicant had waived his right to a
'trial … by jury'.122 His Honour accepted that the applicant at trial had raised no
objection to the discharge of the first juror and had joined in the request that the
second juror be discharged. As far as separation of the jury was concerned, his Honour
noted that the applicant did not object to that course of action. Thus, his Honour was of
the view that a waiver of a right to a 'trial … by jury' could be effected by an inference
from a failure to act. Given that his Honour considered that the 'guarantee' in s 80 is a
_____________________________________________________________________________________
119 Ibid.
120 Ibid.
121 (1986) 160 CLR 171.
338
Federal Law Review
Volume 29
____________________________________________________________________________________
'fundamental law',123 it appears inconsistent with such a view that the right could be
waived in the absence of a clear indication by an accused. Indeed, his Honour
recognised the possibility that the want of objection by the applicant might have been
explained by oversight.124
Having concluded that the applicant in fact waived his right, his Honour turned to
consider whether such a waiver was constitutionally possible. Thus, his Honour
turned to consider the correctness of the Court's decision in Brown v The Queen. His
Honour held that the existence of a privilege to waive 'trial … by jury' is not
'incompatible with the essential characteristics of jury trial or with the purposes for
which s 80 of the Constitution provides that mode of trial'.125 Given that the applicant
had, in his Honour's view, waived his right to the constitutionally prescribed 'trial …
by jury', then it was unnecessary for his Honour to consider whether the trial received
by the applicant conformed with the constitutional description of a 'trial … by jury' in s
80. Therefore, strictly, his Honour's comments on those issues were obiter dicta.
Only five Justices of the Court sat to hear Brown v The Queen, and the majority
comprised three separate judgments. This is an unsatisfactory precedent for such a
central issue to s 80. The framework for the consideration of the compatibility between
a law and s 80 has now developed from those adopted by the Justices in Brown v The
Queen. As Kirby J has illustrated, there is at least an argument within this new
framework that the waiver of s 80 is not incompatible with s 80. To the extent that the
institution of a 'trial … by jury' is intended to be 'an efficient instrument in the
administration of justice'126, the following passage by McHugh J in Cheng v The Queen
is pertinent:
Many accused persons would not regard the mandatory requirement of a jury trial as
conferring any benefit on them. Those charged with offences likely to arouse public
indignation, such as cases involving sexual or other crimes against children, for example,
of those accused who have raised mental illness as a defence, often prefer trial by judge to
trial by jury when they are able to elect for trial by judge. To some accused, trial by jury is
not a boon.127
It is hoped that the High Court will accept the opportunity to reconsider Brown v
The Queen when that opportunity next arises.
CONCLUSION
It would appear that the Court has developed a generally accepted framework for the
consideration of what constitutes a 'trial … by jury' for the purposes of s 80 of the
Constitution. Such a framework differentiates between essential functional attributes
and the means adopted for the achievement of those essential attributes. The task of
identifying those functional attributes is undertaken by reference to the purposes for
which the institution of jury trial was included in s 80. Whether a current practice or
procedure for jury trial is compatible with the constitutional concept of 'trial … by jury'
is an inquiry undertaken in the contemporary context, but it is undertaken by reference
to an institution that has enduring functional attributes.
_____________________________________________________________________________________
123 Ibid, 1194.
124 Ibid, 1201.
125 Ibid, 1203.
126 Ibid, 1194 (Gaudron, Gummow and Hayne JJ).
127 Cheng v The Queen (2000) 74 ALJR 1482, 1508.
2001
339
____________________________________________________________________________________
Most of the Justices did not take up the invitation to elucidate a general approach to
constitutional interpretation. However, the Court implicitly has recognised that the
wider task of constitutional interpretation will depend upon the provision being
interpreted. Thus, any attempt to assign a label to that inquiry may unnecessarily
'distract'128 attention from the task at hand, that is, to ascertain the meaning of the
relevant provisions of the Constitution. How the Court approaches that task
necessarily must depend on the precise provision being interpreted. Therefore, when
interpreting s 80 of the Constitution, it is essential to bear in mind that s 80 takes its
place in Chapter III of the Constitution: it is an institution of government included in
the Constitution for certain purposes and to achieve certain ends.
_____________________________________________________________________________________
128 In other contexts, the High Court has emphasised the need to focus on the task at hand and
to avoid unnecessary 'distractions' – John Pfeiffer Pty Ltd v Rogerson (2000) 74 ALJR 1109,
1114 (Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ).

- Federal Law Review

Transcription

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