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date: 11 April 2021

(p. v) Foreword

(p. v) Foreword

The Oxford Handbook of the Australian Constitution is a remarkable publication. It consists of forty four chapters, each written by leading constitutional lawyers. Collectively the chapters cover virtually every significant aspect of the Australian constitutional system. Each chapter is directed to a particular aspect of that system and, generally speaking, sets it in its historical, political, and conceptual context, identifies the problems which have arisen, and attempts to track its future development.

Two unique features of the Australian Constitution were: (a) non-recognition of Australia’s indigenous peoples and (b) the absence of a guarantee of a range of human rights and fundamental freedoms. The two features are explicable by reference to the history of the British settlement of Australia and that of the six Australian colonies which were united in a federation by the Commonwealth of Australia Constitutional Act 1900 by a statute of the Imperial Parliament at Westminster. Non-recognition of Australia’s indigenous peoples has been an ongoing problem but, as chapter 1 ‘First Peoples’ of this book suggests, a solution may be just around the corner.

The Australian Constitution had its origins in (a) English public law and the tradition of responsible government and (b) the United States Constitution with its provisions relating to federation, representative government, and separation of powers. Initially, the High Court of Australia, established by the Constitution as a constitutional court and general final court of appeal, subject to an appeal to the Privy Council (limited in relation to constitutional matters) until 1975, was influenced by decisions of the Supreme Court of the United States on constitutional cases, but subsequently gave greater weight to English decisions before developing a distinctive Australian public law jurisprudence.

The High Court has continued to make selective use of comparative law, the most notable example being the adoption by a narrow majority in McCloy v NSW1 of the doctrine of structured proportionality, a doctrine with German and European antecedents, in determining the validity of legislation claimed to infringe the implied freedom of political communication, a matter discussed by Susan Kiefel in chapter 21 ‘Standards of Review in Constitutional Review of Legislation’.

(p. vi) The Australian Constitution, now 117 years old, has exhibited astonishing resilience. Despite the reluctance of the electorate to approve proposals for amendment of the Constitution under section 128—only eight out of forty four have succeeded—the Constitution has significantly evolved in a number of ways as discussed in chapter 4 ‘Independence’. Yet it seems to have in large measure reflected the will of the people over its long life.

The Constitution’s resilience and the apparent absence of popular support for amendment under section 128 may be explained by two considerations. First, the Constitution is in essence a framework for government concerned with powers, not rights. In this respect, the Australian Constitution is a conservative instrument, leaving the protection of the interests of the individual to institutions and the political process, following the British and colonial tradition of responsible government. The adoption of a constitutional separation of powers amounted to a rejection of the United Kingdom doctrine of parliamentary supremacy. As is noted in chapter VI, the Australian Constitution has generated a distinctive constitutional order.

Secondly, the High Court of Australia has interpreted the Constitution in such a way that its provisions have applied to the changing conditions and circumstances that have come to pass since 1900. In doing so, the Court has not adopted a particular theory of interpretation, such as originalism, and has, in some instances, given the constitutional provisions an application which would not have been foreseen or contemplated by the founders of the Constitution or the Australian community in 1900. Moreover, the Court has achieved this outcome by interpretive methodologies which have been characterised in chapter 4 as largely legalistic. The characteristics of Australian legalism are discussed in chapter 23 ‘Techniques of Adjudication’.

Although the Court’s approach to the Constitution has been regarded as legalistic, the Court has not been averse to making implications. Chapter CXI of the Constitution, dealing with judicial power, is the principal source of these implications. They have been designed to reinforce the separation of powers, particularly the separation of judicial power, to protect effectively the independence of the judiciary, to generate the concept of a uniform common law for Australia, and to preserve the capacity of the courts to supervise, by means of judicial review, the legality of legislative and executive action. A core element in judicial review of executive action has been the judicial insistence on the existence of jurisdictional error as an indispensable element in a remedy by way of judicial review. The insistence on jurisdictional error has been accompanied by an emphasis on the requirement of procedural fairness and due process in the administrative decision-making process.

The process of implication has resulted in the constitutionalization of aspects of the common law with a corresponding impairment of legislative capacity to make different dispositions. On the other hand, constitutionalization has made Australian (p. vii) public law more coherent. The effect of constitutionalization is illustrated by the link between the limits of judicial power under the Constitution and the scope of statutory interpretation in accordance with common law rules of interpretation. The most dramatic example of constitutionalization, however, is the constitutionalization of administrative law, discussed in detail in chapter 29 ‘The Constitutionalization of Administrative Law’, the effect of which is to deny the efficacy of a privative clause in matters of jurisdictional error and to preserve the Court’s jurisdiction to review discretionary exercises of power for legal unreasonableness.

The vitality of Australian constitutional jurisprudence is attested by the emergence of the Kable2 principle, which prohibits State legislatures from conferring on their courts functions or jurisdiction the exercise of which would compromise the integrity of those courts as recipients of federal jurisdiction. The Australian Constitution is unique in its provisions which authorize the Commonwealth Parliament to invest State courts with federal jurisdiction. The High Court has experienced no little difficulty in determining what are the functions or jurisdiction the grant or deprivation of which will compromise the integrity of State courts, but the Court has generally taken the view that the grant of functions or jurisdiction that are inconsistent with the essential characteristics of a court will be invalid. Likewise, a law which excludes an essential characteristic of a court will be invalid.

An off-shoot of the Kable principle has been the Kirk3 principle, where the High Court held that the essential characteristics of State Supreme Courts included powers and functions which they historically exercised and that they in turn included the exercise of supervisory jurisdiction for jurisdictional error. In recognising the State Supreme Courts, the Constitution gave constitutional force to their essential characteristics so that a clause denying such a characteristic is of no effect.

Both the Kable and Kirk principles reflect the Court’s vision of Chapter CXI of the Constitution as providing for an integrated judicial system with the High Court at the apex of the system, exercising both its original and appellate jurisdictions. In order to convert the vision into comprehensive practical reality, further decisions by the High Court may be required.

The implication of freedom of political communication4 has its primary source in the representative government for which Chapter I of the Constitution specifically provides. In its relatively short life, the implied freedom has generated many judicial decisions. In the light of a subsequent decision, Murphy v Electoral Commission,5 the status and scope of structured proportionality in Australian constitutional law, embraced earlier in McCloy v NSW, remains uncertain.

(p. viii) Although the federal character of the Constitution was of dominant importance in its early days, giving rise to federal implications which were overthrown in 1920,6 when an interpretation favouring a broad view of Commonwealth legislative powers was adopted, the subsequent interpretation of the Constitution has seen an ever-increasing expansion of Commonwealth power to the detriment of the States. By means of High Court decisions and constitutional amendment,7 the Commonwealth has become the dominant player in the financial affairs of the nation and in other areas as well, mainly by means of the grants power under section 96 of the Constitution. While this development is not consistent with the federal character of the Constitution, it is a development that accords with the emergence of Australia as a nation with a strong sense of national identity and national economy.

The discussion of the federal principle in chapter 35 ‘The Federal Principle’ identifies the shortcomings in the Constitution in its failure to protect the position of the States, particularly in matters of finance. And the discussion also identifies the failure of the High Court to devise limits on the scope of Commonwealth legislative powers, based on the federal principle, with a view to protecting the States. As things stand, the implications designed to protect the institutional integrity of the States as polities within the federation seem to be less than adequate, though there are some signs of a revival of federalism as a constitutional consideration.

A parallel development has been the recognition, already mentioned, that, unlike the United States, Australia has a uniform Australian common law. This implication arises from section 73 of the Constitution and the doctrine of precedent.8 Although the constitutionally based uniform Australian common law does not prevent a State legislature from directly amending by statute the common law as it applies in that State, it impairs State courts from amending the common law in the State by reference to a new statutory policy expressed only in a statute of that State.9 Other consequences of the uniform common law concept remain to be identified.

This development is an illustration of the growing influence of the Constitution on the common law, as well as statute law. The stand out example of this influence is Lange v Australian Broadcasting Corporation10 where the High Court held that:

the development of the common law cannot run counter to constitutional imperatives. The common law and the Constitution cannot be at odds.11

(p. ix) So, in that case, the common law of defamation was reformulated in order to comply with the Constitution.

The exposition of the executive power of the Commonwealth in section 61 of the Constitution is a recent important development, discussed in depth by Cheryl Saunders in chapter 26 ‘Separation of Legislative and Executive Power’. Important questions concerning the executive power remain to be resolved.

My final reference is to chapter 44 ‘Legality’ by Dan Meagher. In the absence of an entrenched national bill of rights, the inaptly named ‘principle of legality’ has much work to do in Australia. Chapter 44 contains a profound examination of the principle and its place in Australian law, its competing rationales, and its uncertainties. The author links its future development with the Constitution, its values, and the values on which it is based. The author makes the further point that these values might well include the federal principle and thus require a statute to be expressed with the utmost clarity if it encroaches upon the core constitutional powers and functions of the States. The author also suggests the High Court should clarify the rights and freedoms which are protected by the principle and should adopt a more flexible approach to the degree of clarity required in a statute in order to displace the application of this principle, the degree of clarity varying, according to the nature and importance of the value at stake.

In conclusion, I have no hesitation in saying that the forty four chapters of this book present an invaluable repository of insights into the history and development of Australian Constitutional Law, a lengthy catalogue of uncertainties and questions that await resolution and intriguing and perceptive suggestions for their future resolution.

Sir Anthony Mason (p. x)

Notes:

(1) (2015) 257 CLR 178.

(2) Kable v Director of Public Prosecutions (NSW) (1996) 189 CLR 51.

(3) Kirk v Industrial Court (NSW) (2010) 239 CLR 531.

(4) See Lange v Australian Broadcasting Corporation (1997) 189 CLR 520.

(5) [2016] HCA 36; (2016) 90 ALJR 1027.

(6) Amalgamated Society of Engineers v Adelaide SS Co Ltd (the Engineers’ Case) (1920) 28 CLR 129.

(7) Australian Constitution, s 105A.

(8) Lange v Australian Broadcasting Corporation (1997) 189 CLR 520 at 562-566; Lipohar v The Queen (1999) 200 CLR 485, [26], [46], [50].

(9) Esso Resources Australia v Commissioner of Taxation (1999) 201 CLR 49, [25]-[27] [97].

(10) (1997) 189 CLR 520.

(11) ibid 566.