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Public Law & Statutory Interpretation

WEEK 4 LECTURE

Constitutional Limits on
Parliamentary Sovereignty at
Federal Level and State Level
Ms Victoria Danambasis

Parliamentary Sovereignty
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.

The Reach of Commonwealth Legislative Power


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 Reach of Commonwealth Legislative Power


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.

The Reach of Commonwealth Legislative Power


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.

The Reach of Commonwealth Legislative Power


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.

Limits on State Legislative Power: State Courts


capable of federal jurisdiction
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.

Limits on State Legislative Power: State Courts


capable of federal jurisdiction
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.

Limits on State Legislative Power: State Courts


capable of federal jurisdiction
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.

Limits on State Legislative Power: State Courts


capable of federal jurisdiction
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.

Limits on State Legislative Power: State Courts


capable of federal jurisdiction
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