2015 Week 4 Lecture PLSI

Public Law & Statutory Interpretation

WEEK 4 LECTURE

Constitutional Limits on Parliamentary

Sovereignty at Federal Level and State Level

Ms Victoria Danambasis

• We came across this concept in Week 3.

• The English concept that Parliament is supreme.

• This idea is not entirely adaptable to the Australian legal environment.

• The Commonwealth Constitution provides points of departure from Parliamentary Sovereignty:

Australia has Constitutional Supremacy.

Parliamentary Sovereignty

• Commonwealth Parliament is given heads of power under Section 51 of the Constitution, in 39 placita (singular placitum).

• These heads of power are necessary for a nation to legislate to be able to function both internally and internationally.

• …the Commonwealth does not have power to make law at large.

• All statutes that emerge from Parliament may be challenged in Court (the High Court) as to their validity.

• The question: was the law enacted pursuant to a specific head of power?

The Reach of Commonwealth Legislative Power


• The determination of that issue is for the Court.

• Parliament may not assert by recital that it has power, if the power is in fact inadequate.

• This was most famously determined in the Communist Party case (1951) 83 CLR 1.

• The High Court made it clear that the Parliament could not recite itself into legislative power, which it had attempted to do by asserting that the Act for the suppression of the Communist Party was supported by the Defence power: see Clark, page 260 [10.30].


• The Constitution contains very few inhibitions (direct prohibitions) on Commonwealth legislative power

Eg: s 116: regarding no established religion or requirement for religious observance.

s 99: not giving preference to any State over another (so the Commonwealth can regulate

interstate trade, but not in a discriminatory manner, whereas s 92 forbids the States

from interfering at all with interstate trade and commerce): see Clark page 107 [5.7] and

[5.9].

• Section 92 has been a most fruitful area of litigation for constitutional lawyers.


• Legislature formally consists of:

the deliberative part (two Houses in bi-cameral parliaments),

The Crown representative: the monarch in the UK, and the vice-regal representative in Australia (Governor-General or Governor).

• A Bill only becomes an Act when the Crown representative assents.

• However, this is historically a formality as the last time the Crown refused to assent was in 1708.


• Queen Anne refused to assent to the Scottish Militia Bill for fear of inflaming Scottish opinion.

• This last date for such Crown intervention fits with the matters we discussed in Week One (Scotland uniting with England in 1707 and the diminishing of Crown independence and influence with the Bill of Rights 1688 and the Act of Settlement 1701.)

• See Clark page 110 [5.12].

Limits on State Legislative Power

• State parliaments receive legislative power from State Constitutions [which in turn, as rewritten during the C20th, rested on the grants of power from Westminster in the C19th and from s 106 of the Commonwealth Constitution]: see Clark pages 110-2 [5.13]ff.

• The general amplitude of State legislative power is very great: we have referred to ‘peace, order and good government’ previously.

• Clark lists three limitations on this general breadth:

1. The Commonwealth Constitution (esp. s 109)

2. Manner and Form provisions

3. Territoriality.

Limits on State Legislative Power: Territoriality

• We have touched on the first two but what of the third?

• The theory in the colonial period had been that Colonies could legislate only for their territory.

• No off-shore legislative capacity.

• This view slowly evolved to a more sophisticated view regarding the States in the course of the C20th.

• Litigation in the early 1970s forced a review of the position and a move towards Commonwealth-State negotiation that came to make what was previously a highly litigious area.

• The Cth accepted SAs claim that it must control the two gulfs and the waters around KI.

Limits on State Legislative Power: Territoriality

• The upshot was Cth and State legislation that accepted that:

the States could legislate out to sea for 12 nautical miles (about 20 kms) and

the Cth claimed a maritime zone that it could control for up to 300kms out to sea.

• 1998: the Cth agreed that State law could be enforced in this wide marine zone, on the basis of Cth support.

• One can see how important these zones are for enforcing fisheries laws.

• See Clark pages 128-130 [5.52]-[5.54].

Limits on State Legislative Power: How far can the Cth bind the States and vice versa?

• A further problem was the issue of how far Cth and State laws bound each other.

• This problem has been fought out against a backdrop of the common law presumption that the Crown will not be bound by statutes.

• That presumption has been much weakened by the decision of the High Court in Bropho v Western Australia (1990) 171 CLR 1.

• The issue now is whether statutes of ‘sovereigns’ should affect other ‘sovereigns’.

• States are not sovereigns, as they have no international profile, but they do have complete self-government.

Limits on State Legislative Power: How far can the Cth bind the States and vice versa?

• The sporadic litigation on this subject finally attracted another round of 1970s co-operative legislation.

• The Commonwealth passed the Commonwealth (Application of Laws) Act 1970 with each Sates passing mirroring legislation.

• This allows State laws to apply to Commonwealth places eg Post Offices and Airfields by agreement with the Commonwealth: see Clark pages 124-27[5.42]-[5.47].

Limits on State Legislative Power: State Courts capable of federal jurisdiction

• This fourth area of inhibition is a late arrival in the field of legislative limitation.

• Founded on the concept that all State courts must be capable of carrying federal jurisdiction.

• The theory: State courts must answer to a minimum standard of ‘courtliness’ to be accepted as capable of carrying federal jurisdiction.

• It follows that if State Parliaments legislate to bend State Courts ‘out of shape’ they may no longer be capable of carrying federal jurisdiction.

• In that event, State legislation purporting to perform the curial distortion would be determined to be invalid.


• The capacity of State courts to carry federal jurisdiction under Chapter III of the Constitution is paramount.

• The bones of this theory were clothed with flesh in1996 in the case of Kable v Director of Public Prosecutions (NSW) (1996) 189 CLR 51.

• Facts:

NSW legislation purported to provide for the NSW Supreme Court to make determinations for keeping a prisoner imprisoned on the basis of representations from the Government, and not on the basis of a trial on criminal charges.


The legislation arose from the threatening behaviour of Mr Kable, who while imprisoned following his conviction on serious charges, kept threatening people with harm when he was released.

• High Court held (4:2 Kirby J joined the Court too late to be involved in the argument):

The NSW statute laid powers and duties on the State Court that were incompatible with and repugnant to the qualities required of a Chapter III court.

The statute was invalidated.


• Key words describing necessary court structure that have emerged in the nearly two decades since Kable, have been variously:

Impartiality;

Integrity; and

Independence.

• Kable gained no traction until 2009, when a split High Court applied the principle in International Finance Trust v NSW Crime Commission (2009) 240 CLR 319.

• It has since been applied twice in ‘bikie legislation’ cases: SA v Totani (2010) 242 CLR 1 and Wainohu v NSW (2011) 243 CLR 181: see Clark at pages 87-94.


• The impulse to allow State legislation to remain on foot may cause the High Court to extend common law concepts.

• In K-Generation v Liquor Licensing Court (2009) 237 CLR 501 and in Condon v Pompano Pty Ltd (2013) 87 ALJR 458, the High Court held State statutes valid, despite the appearance that they destroyed common law natural justice in State courts.

• What is natural justice?

• The presumption that a person whose interests were at stake in litigation would be able to know the case against him/her and put on a reply to that case.


• The High Court reasoned that natural justice was adequately delivered by the ability of the courts to see to basic fairness, and supply the examination and response that would normally be supplied by the affected party.

• This does not match any known description of common law natural justice, but nonetheless, was used to validate South Australian and Queensland statutes.

NEXT WEEK…..

THE SPECIAL NATURE OF THE CROWN AT LAW AND THE NEED TO KEEP THE

EXECUTIVE ACCOUNTABLE: ‘THE RULE OF LAW

2015 Week 4 Lecture PLSI

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