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Stefanie Wilkins[*]
The introduction of the Human Rights Act 2004 (ACT) ('the HRA'), although contentious,[1] is indicative of a move towards the introduction of bills of rights at State or Territory level in Australia.[2] The HRA is modelled on the UK Human Rights Act[3] and the New Zealand Bill of Rights Act,[4] and has precipitated discussion in several States on the merits of introducing their own bills of rights,[5] with Victoria enacting the Charter of Human Rights and Responsibilities Act 2006 (Vic).[6]
However, one significant area of uncertainty, which has been given little consideration,[7] is how the HRA (and equivalent legislation at State level) will operate within Australia's constitutional framework. Section 32 of the HRA enables the ACT Supreme Court to issue a 'declaration of incompatibility' when a provision of ACT legislation is incompatible with a right enunciated in the HRA.[8] However, this declaration is intended to initiate 'dialogue' between the judiciary and the legislature:[9] it does not invalidate the legislation, or affect the rights of the parties in the dispute in which the declaration is made.[10] This article will address the constitutional limits that may be placed on the exercise of this novel 'remedy'. Some of these constitutional limits are unique to the ACT and its Supreme Court, while many will also be applicable to bills of rights introduced by a State.
A consideration of the Australian constitutional framework requires recognition that Chapter III of the Australian Constitution establishes an integrated judicial system, with the High Court as the ultimate appellate court.[11] One effect of this framework is the creation of a uniform system of common law[12] and a unitary federal jurisdiction[13] throughout Australia. However, in conferring power on the parts of the system not created by the Commonwealth Parliament, Parliament must take these courts as it finds them.[14] Thus, courts not created by Commonwealth Parliament may be able to exercise powers which cannot be exercised by the High Court due to the limits placed on the High Court by Chapter III. In some cases, this may frustrate the intended integrated system: there may be certain powers which, when exercised by a State or Territory court, cannot be reviewed by the High Court.[15]
The availability of an appeal from a 'declaration of incompatibility' issued by a Territory (or State) court is critical. If no appeal can be made to the High Court, human rights jurisprudence may develop independently in each State or Territory. This could create uncertainty in the law[16] and have adverse practical consequences.[17] As the HRA is based on the International Covenant on Civil and Political Rights,[18] the nature of Australia's international obligations may also be interpreted independently by State and Territory courts if no appeal can be made to the High Court.
There are two primary limits placed on the exercise of power by the High Court: it must exercise solely judicial power (or power ancillary thereto)[19] only in relation to matters.[20] The application of these limits to s 32 depends on a careful analysis of the effect and nature of a declaration.
In Part One, I will address the effect and nature of a declaration, before considering whether this represents an exercise of judicial power. In Part Two, I will consider the position of the ACT Supreme Court in the Australian constitutional framework to identify the circumstances in which appeals may be made from it to the High Court, and compare the position of State Supreme Courts. Part Three will address the relationship between judicial power and 'matter', and the question of whether a declaration of incompatibility can constitute a 'matter'. Finally, in Part Four, I will consider whether s 32 of the HRA is invalidated by the Kable[21] principle.
I will demonstrate that there are substantial constitutional hurdles which may preclude the High Court from reviewing the exercise of the power conferred by s 32, or may even render the power invalid. The aim of this article is to identify the constitutional issues arising from the HRA and to consider the arguments relating to each of these issues.
In order for s 32 to be a valid conferral of power on the Supreme Court, and for a declaration to be capable of appeal to the High Court, a favourable response to each and every constitutional issue is required. Some of the questions relating to the application of the HRA have two possible resolutions, of which one leads to a conclusion that the declaration is beyond review by the High Court, thus rendering other questions moot. However, the areas of law addressed in this article are contentious, and may have an uncertain application to the HRA, and consequently the conclusions drawn are tentative. Thus, these issues will be addressed separately (as far as possible), so that an adverse conclusion on one issue does not preclude analysis of other issues.
The HRA confers two roles on the judiciary.[22] The first of these is statutory interpretation. Section 30 provides that '[i]n working out the meaning of a Territory law, an interpretation that is consistent with human rights is as far as possible to be preferred.'[23]
Section 32 provides the second role: 'If the Supreme Court is satisfied that [a] Territory law is not consistent with [a] human right, the court may declare that the law is not consistent with the human right' and thus issue a 'declaration of incompatibility'.[24] A declaration must be given to the Attorney-General,[25] who must present it to the Legislative Assembly,[26] and must also provide to the Assembly a written response to the declaration.[27] However, the Assembly is not required to amend the legislation and the declaration does not affect the validity of the law or 'the rights or obligations of anyone'.[28] A declaration can only be made if an issue about the consistency of a Territory law with the human rights enunciated in the HRA[29] arises in the course of a proceeding before the Supreme Court.[30] It will be assumed for the purpose of the analysis in this article that the Supreme Court is exercising Territory jurisdiction when issuing a declaration of incompatibility. Although it is possible that the Supreme Court could be considering contemporaneously 'matters' arising under federal jurisdiction, the extent of the Supreme Court's power to make a declaration when exercising federal jurisdiction is beyond the scope of this article.
The ACT Supreme Court has not yet issued any declarations of incompatibility. There have, however, been several cases in which the Supreme Court has referred to the HRA. In some of these cases the Court merely referred to the Act without any analysis or application to the particular circumstances.[31] The HRA has been used to support a particular construction of a statutory provision,[32] and to demonstrate that there is now a statutory basis for a long-accepted common law principle.[33] It is conceivable that even where a provision of the HRA mirrors a common law interpretative principle, the HRA could be used as an interpretative aid in a wider range of circumstances as its application is not limited to resolving ambiguity.
Although enacted relatively recently, the introduction of the HRA has already led to some novel developments in the law.[34] There is some authority to suggest that the Act will be used to expand the application of pre-existing remedies: in R v Upton[35] Connolly J granted a stay of proceedings and an order of costs for an accused whose trial date had been altered twice, using s 22(2)(c), which guarantees the right to a trial without undue delay. There is also some support for the concept of awarding damages for breaches of the Act.[36]
In using the HRA as an interpretative aid, the ACT Supreme Court has referred to the decisions of UK courts and the New Zealand Court of Appeal.[37] However, little guidance can be gleaned from other jurisdictions in relation to declarations of incompatibility. Like the ACT HRA, the UK Human Rights Act expressly provides for declarations of incompatibility.[38] However, very few declarations have in fact been issued and courts have been more inclined towards creatively interpreting impugned legislation in accordance with the Act.[39] Further, the transmittal of a declaration to either the executive or the legislature is not required,[40] and the process of interpretation and remedial development is influenced by the existence of a right of appeal to the European Court of Human Rights.[41]
The New Zealand Bill of Rights Act 1990 (NZ) does not contemplate any form of declaration of incompatibility. However, the New Zealand Court of Appeal has determined, from the purpose of the Act,[42] that the Court 'necessarily … [has] the power, and on occasions the duty, to indicate that although a statutory provision must be enforced according to its proper meaning, it is inconsistent with the Bill of Rights'.[43] Nevertheless, these 'indications' are the creation of judicial decision and are thus not subject to the unique statutory procedure established by the HRA, which is critical to the analysis of a declaration in the Australian context.
Despite the absence of a remedies provision in the New Zealand Act,[44] the New Zealand Court of Appeal has taken a very active approach towards creating and expanding remedies.[45] These developments have been justified by the language of the Act, which requires the 'promotion' and 'protection' of human rights;[46] similar language has been used in the ACT HRA.[47] The New Zealand Court of Appeal has employed the logic that provisions of the Bill of Rights Act 1990 (NZ) must be intended to have some effect and consequently the Act should be interpreted as expansively as necessary to ensure that there is some effect;[48] a similar logic was applied by Connolly J in R v Upton.[49] Similarly, the Human Rights Act 1998 (UK) compels the judiciary to act in accordance with its provisions.[50] This is generally regarded as requiring UK courts to develop common law principles and remedies in accordance with human rights principles.[51] Thus, a similar approach has been adopted by UK courts and the New Zealand Court of Appeal, utilising different provisions of their respective Acts.
If a similar approach is adopted in the ACT, a declaration may be accompanied by the granting of a remedy.[52] The effect of such a development on the constitutional position of the HRA will be considered in subsequent parts. However, it is important to note that despite the similarities in the legislation, the experiences of New Zealand and the UK are of limited application to Australia, due to the unique content of the Australian Constitution, and in particular its strong separation of powers.[53]
Although the requirements of ss 30 and 32 are generally regarded as establishing two separate functions[54] — interpretation of Territory laws and making declarations — it is arguable that the declaration of incompatibility is merely an extension of the interpretative process.[55] Perceived this way, the role of the Supreme Court is to interpret a Territory law in accordance with human rights principles as far as possible, and, when it is no longer possible, issue a declaration of incompatibility — a novel addition to an existing role of the Court.
Conversely, however, the description of the declaration process is clearly separated in the Act from the interpretative process,[56] and an interpretation may affect the rights and obligations of the parties while a declaration will not.[57] Further, there is a legislative intention that a declaration initiates 'dialogue' between the legislature and the judiciary, a role not envisaged in relation to the interpretative process.[58] The more likely position is therefore that the declaration process will be regarded as separate from interpretation.
As noted above, a declaration of incompatibility must be forwarded to the Attorney-General, who must forward the declaration and, later, a response to the Legislative Assembly.[59] The role of the Attorney-General in responding to the declaration is comparable to the Attorney-General's 'statutory requirement'[60] in the legislative process (that is, issuing a compatibility statement when a Bill is introduced to Parliament)[61] and comports with the notion of responsible government.[62] A declaration of incompatibility therefore compels some — albeit limited — action by the executive government in the form of a response to the declaration, and provides advice to the legislature, upon which it may or may not act, at its discretion.[63]
The declaration of incompatibility therefore has two effects: first, to provide some legal opinion to the legislature via the establishment of 'dialogue',[64] and secondly, to compel action by the Attorney-General.[65] A distinction between the two effects is evident in the Explanatory Memorandum accompanying the HRA, which contrasts the application of the declaration to these two branches, stating that while s 33 'imposes an obligation' on and 'requires' action by the Attorney-General, the government and Assembly are not bound.[66]
It is submitted that an analogy may be drawn between the executive limb of a declaration of incompatibility and the overturning of an administrative decision on the ground that the decision-maker failed in some aspect of their duty. For example, the administrative decision in Minister for Immigration and Ethnic Affairs v Teoh[67] was set aside and remitted to the original decision-maker because they had not addressed the applicant's legitimate expectation that Australia's international obligations would be considered. However, the applicant in Teoh was not entitled to the fulfilment of their legitimate expectation, but merely to receive notice if the international obligations were not considered. Thus, the only practical entitlement of the applicant arising from the appeal was the fulfilment of a formality by the executive government and the possibility of a reconsideration of the original decision. Teoh granted a right to a particular procedure (and a corresponding obligation on the Minister) rather than a right to a particular outcome. Similarly, the High Court in Abebe[68] referred to an individual's right to have the Refugee Review Tribunal consider their case, and in Croome v Tasmania[69] referred to an individual's right to have the validity of a State law considered.
This is in many ways similar to, and arguably analogous to, the entitlement of a successful applicant for a declaration of incompatibility — there are no substantive rights arising from the declaration, but they are entitled to a process: a response from the Attorney-General (albeit one directed to the Legislative Assembly), and the possibility of a reconsideration (albeit of a law rather than of an administrative decision). A declaration of incompatibility may therefore be seen as a novel procedure of the sort envisaged by the majority in In re Judiciary and Navigation Acts,[70] giving rise to a novel remedy.
The characterisation of the declaration of incompatibility is relevant to whether it represents an exercise of judicial power, and whether it could constitute a 'matter' to be appealed to the High Court: issues which will be considered further below. It is now necessary to consider whether the ACT Supreme Court could compel the performance of the Attorney-General's obligations, which is critical to whether we can regard a declaration as a novel procedure giving rise to a remedy (by analogy with Teoh, Abebe, and Croome).
Although a declaration imposes some obligation on the Attorney-General, this obligation is directed to the Legislative Assembly. However, the High Court in Egan v Willis[71] demonstrated a reluctance to interfere with a legislature's ability to regulate its own affairs: could this principle preclude an application of mandamus being made to compel action by the Attorney-General?
The jurisprudence relating to parliamentary privileges and powers demonstrates that courts will not investigate conduct 'relate[d] only to the internal procedure of a House of Parliament.'[72] Consequently, the High Court in Egan emphasised that there were limits to courts' ability to review what had occurred in a legislative chamber, and courts could review the existence but not exercise of a chamber's powers. [73] However, in Egan, the obligation of the Minister was imposed by a motion of a chamber pursuant to its Standing Orders. Conversely, the Attorney-General's obligation under a declaration is not a matter of internal procedure, in the nature of tabling requested documents:[74] it is required by court order and the operation of law, and arises from a dispute between two interested parties.[75] Evaluating the compliance of the Attorney-General with the HRA requires a consideration of the occurrence of events in the Legislative Assembly rather than the propriety of those events.[76]
Additionally, the Court in Egan noted the importance of judicial review in the Australian constitutional system in supplementing the principle of responsible government.[77] It is therefore likely that a court asked to compel compliance with s 32 of the HRA would regard this provision, clearly intended to supplement the principle of responsible government, as within the court's power to enforce. Thus, it is submitted that the Egan principle does not preclude the executive component of a declaration from being compellable by mandamus (and thus enforceable by the courts) and therefore being treated as giving rise to an obligation and corresponding right. In any event, it is unclear to what extent Egan would be applicable to the ACT Parliament, given that, unlike the NSW Parliament, its powers and privileges are defined by legislation.[78]
In re Judiciary and Navigation Acts treated advisory opinions as being within the scope of judicial power, but not within the scope of 'matter', and therefore beyond the power of the High Court (and possibly State courts)[79] to issue.[80] The High Court was able to dispose of the question of whether there was an exercise of judicial power very simply: 'Parliament desired to obtain from this Court not merely an opinion but an authoritative declaration of the law. To make such a declaration is clearly a judicial function'.[81]
However, it is submitted that In re Judiciary and Navigation Acts is not authority for regarding all advisory opinions as exercises of judicial power, but merely the particular advisory opinion sought in that case, which was judicial because of its particular characteristics. Further, it is important to note that the High Court refused to give the required advisory opinion not because of any prohibition against advisory opinions explicit or implicit in the Constitution, but because there was no 'matter' — there was no link to any controversy whatsoever.
Commentators have subsequently identified several 'forms' of advisory opinions.[82] Nevertheless, a monolithic approach to advisory opinions has informed subsequent commentary: for example, in analysing the High Court's treatment of advisory opinions as not constituting a 'matter', Zines suggests that the question could more appropriately be addressed by considering whether an advisory opinion is non-judicial and therefore a violation of the Boilermakers' principle.[83]
The current approach to advisory opinions is therefore to consider whether a particular function is an advisory opinion, before either following the conventional view of advisory opinions as judicial but not constituting 'matters', or following Zines' approach that advisory opinions could be regarded as non-judicial. However, it is difficult to reconcile the existence of several types of advisory opinion with a monolithic approach to these: for example, if the existence of judicial power is dependent in part on its enforceability,[84] it is difficult to regard a non-binding advisory opinion as judicial.[85]
It is therefore submitted that it is irrelevant for present purposes to enquire whether a declaration of incompatibility falls within one of the suggested definitions or categories of 'advisory opinion'.[86] The Constitution makes no reference to advisory opinions, only to judicial power and to 'matters'. Rather than following either of these approaches, this article therefore will focus instead on the particular characteristics of a declaration to determine, first, whether it is an exercise of judicial power, and secondly (in Part Three) to determine whether it constitutes a 'matter'. The importance of separating these two concepts will be addressed in Part Three.
It is important now to consider whether a declaration of incompatibility is an exercise of judicial power for two reasons: first, whether judicial power is exercised affects both the availability of an appeal to the High Court and the type of review which the High Court may undertake, which will be addressed in Part Three. Secondly, whether there is an exercise of judicial power is important to the application of the Kable principle, which will be considered in Part Four. The characterisation of the declaration is complicated by the fact that a declaration, in theory, affects both the executive and legislature: these effects will be considered separately below.
The paradox of the importance of the separation of judicial power for the Australian constitutional framework, despite the absence of a conclusive definition of judicial power, has long been recognised.[87] Various criteria have been proposed for defining judicial power, with courts often emphasising the ability of a tribunal to enforce its orders,[88] and whether the tribunal's decision is 'binding and authoritative'.[89] The majority in Fencott v Muller stated that:
The unique and essential function of the judicial power is the quelling of … controversies by ascertainment of the facts, by application of the law and by exercise, where appropriate, of judicial discretion.[90]
Conversely, it has been held that neither the mere fact of making a final decision, nor the act of making decisions affecting the rights of parties make a body a court.[91] Ultimately, it has been recognised that an 'exhaustive definition' may not be possible.[92] It is therefore necessary to weigh the relevant features of the executive and legislative components of a declaration in light of existing authority.
If one considers the effect of a declaration on the legislature in isolation, there are some arguments that the making of a declaration is not an exercise of judicial power. First, In re Judiciary and Navigation Acts concluded that there was an exercise of judicial power, based partly on a legislative intention that an interpretation pursuant to Part XII of the Judiciary Act 1903 (Cth) (‘the Judiciary Act’) would be 'final and conclusive'.[93] This principle operates with the opposite result in the present situation. The legislative intention expressed in the HRA that a declaration will have no binding effect, and will rather 'draw to the attention of the Government'[94] any inconsistency, and initiate 'dialogue' (in which Parliament has the final say) weighs against any conferral of judicial power.[95] However, this legislative intention must be considered in light of the functions that the Attorney-General 'must' perform and the contrary intention suggested by this obligation.[96] Further, one must distinguish between Parliamentary sovereignty — which connotes that Parliament is the ultimate arbiter of legal validity — and legislative supremacy, which stipulates that legislation cannot be invalidated (as in the HRA).[97] If one recognises that the HRA does not establish the pre-eminence of Parliament, it follows that it also does not necessarily establish the inferiority of the judiciary.[98]
Secondly, the rights identified in the HRA are, to a large extent, aspirational and provide a basis for contextual and purposive interpretation which diverges from many of the traditional maxims of statutory interpretation.[99] In interpreting legislation and, in particular, in issuing a declaration, the Supreme Court may consequently be driven by considerations of practicality and social utility,[100] and an intention to 'assist' and 'advise' the legislature.[101] Such considerations, and the evaluation of legislation against normative values, are historically within the role of the legislature. An analogy may therefore be drawn with the role of the West Australian Supreme Court envisaged by the Electoral Act 1904 (WA) and considered by the High Court in Holmes v Angwin.[102] Griffith CJ noted that the determinative features of the role in question were that the legislature had 'always asserted the right' to make a determination of the type required by the Act and 'whenever they have thought fit to delegate a part of that duty to another tribunal … they have nevertheless retained control to a certain extent'.[103] The analogy with the role of the Court in the HRA continues in the judgment of Barton J, who expounded that the legislature
transferred the right to a separate tribunal, not on the ground that it wished to deal with these questions as matters of litigation; but … on the ground that it wished to remit such matters to men of experience and known fairness of mind, who should merely declare their findings upon the questions involved, and any enforcement of such decision was … quite out of the question.[104]
The conclusion reached by the majority was that the Supreme Court in 'assisting' the legislature was not acting as the 'Supreme Court' within the meaning of s 73, but was a 'new tribunal consisting of a Judge of the Supreme Court as a persona designata'.[105] Thus, a Supreme Court could make a finding, which had no direct legal effect, to assist the legislature in the performance of its duties — but it would not be a 'Supreme Court' for the purposes of s 73 when it did so.
Such an argument could be applied to the legislative aspect of a declaration: the evaluation of legislation against normative standards is a role traditionally associated with the legislature and a declaration is a finding without legal effect on the parties,[106] by persons of 'experience and known fairness of mind', for the purposes of assisting the legislature.[107] Although the HRA confers power on the 'Supreme Court', Holmes[108] indicates that this is not conclusive. Could the ACT Supreme Court (or a State Supreme Court) be regarded as a persona designata tribunal when issuing a declaration, and thus be regarded as exercising a power incidental to the legislative power?
A consideration of the effect of a declaration on the legislature in isolation, in light of Holmes,[109] suggests that it may be a non-judicial function. However, there are some difficulties in regarding a declaration as an exercise of non-judicial power, which will be identified in relation to the application of a declaration to the executive.
It has been argued that a declaration of incompatibility binds the executive and that the Supreme Court would be able to enforce this aspect of the declaration via an order of mandamus. If this view is accepted, the role of the Court would therefore fall squarely within the definition of 'judicial determination' as being 'an enforceable decision reached by applying the relevant principles of law to the facts as found.'[110] Further, if the executive component is regarded as a novel procedure by which the Court's determination is prescribed by Parliament, as envisaged by In re Judiciary and Navigation Acts,[111] (and giving rise to a novel remedy) it is logical to regard that component as a modification to the exercise of judicial power, rather than the conferral of a novel, non-judicial power.
However, even if this characterisation of the executive component is not accepted, and a declaration is regarded as unenforceable by the ACT Supreme Court, this is not necessarily determinative.[112] First, a declaration of incompatibility will only arise in the context of a pre-existing dispute, which the Court would be resolving in exercise of its judicial power. It is difficult to regard the Court as simultaneously exercising judicial and non-judicial power in relation to one dispute,[113] particularly when the same evidence and arguments would be likely to go towards both the resolution of the dispute and the declaration.
Further, it is submitted that there are several factors which point towards the exercise of judicial power, some of which arise as a consequence of the context of a pre-existing dispute in which a declaration will be made. A declaration is an exercise of 'the power of inquiry and determination'[114] by a court which is open to the public,[115] and requires the finding of facts, forming of legal opinion and the exercise of judicial discretion.[116] Further, a declaration will be reached by an application of law to facts,[117] which entails the application of pre-existing standards.[118] These considerations apply equally to the legislative and executive elements of a declaration. If the jurisprudence of the New Zealand Court of Appeal continues to guide the Supreme Court, declarations under the HRA may ultimately be coupled with a more traditional remedy which would strengthen the case for saying that judicial power was being exercised.
Finally, another implication may be drawn from the context of the pre-existing dispute. It is common for courts, and, significantly, the High Court, to make non-binding statements regarding the law: for example, to make statements of obiter dicta, or suggestions for law reform based on a difficulty in a particular case.[119] The fact that this aspect of a court's deliberation has no legal consequence for the parties does not preclude the Court from being regarded as exercising judicial power, or power ancillary thereto.[120] Consequently, it is submitted that the relevant features of a declaration of incompatibility lead to the conclusion that it entails an exercise of judicial power, or power ancillary thereto.
It has been argued that a declaration of incompatibility may most appropriately be regarded as judicial or ancillary thereto, with the declaration forming a novel procedure giving rise to a novel remedy. However, in the following Parts I will also consider the implications of the alternative position that a declaration is non-judicial in nature. This characterisation is relevant to the availability of an appeal from a declaration of incompatibility, and the type of review which the High Court could undertake, which will be addressed in Part Three. However, prior to considering the particular issues pertaining to appeals from declarations, it is necessary in Part Two to address the general constitutional position of appeals from Territory Supreme Courts.
In the previous Part, the nature of the declaration process was considered. It was argued that this could be conceived of as a novel procedure giving rise to a novel remedy, and could also be regarded as an exercise of judicial power (although its status is contentious). In this Part, the constitutional status of rights of appeals from the ACT Supreme Court will be considered, and compared to that of the State Supreme Courts. Secondly, the requirements for appeal cases to be heard by the High Court will be identified. Whether a declaration of incompatibility can satisfy these requirements will be considered in Part Three.
The availability of an appeal from a declaration of incompatibility made pursuant to a State or Territory bill of rights is important because, if an appeal to the High Court is not available, individual State and Territory Supreme Courts will determine the congruity of the law with human rights principles independently of each other, which could lead to the development of separate principles and interpretations of Australia's human rights obligations. The potential for a 'multiplicity of opinions' creating uncertainty in the law was identified by the former federal Attorney-General as one reason for opposing state-based bills of rights,[121] and would be inconsistent with the existence of one common law and a unitary federal jurisdiction in Australia.[122]
Although there are some arguments that appeals from a Territory Supreme Court to the High Court are guaranteed by s 73 of the Constitution,[123] the predominant view is that there is no such guarantee.[124] Further, it is accepted that, when applying Territory law, a Territory Supreme Court is not a federal court or a court exercising federal jurisdiction for the purposes of s 73.[125] Thus, on the currently predominant view, appeals from the ACT Supreme Court to the High Court are not constitutionally guaranteed unless the Supreme Court is exercising federal jurisdiction in the facts of the particular case and therefore falls within s 73(ii).
The Commonwealth Parliament has enabled appeals to the High Court from all Territory Supreme Courts in s 35AA of the Judiciary Act. This provision has been treated by the High Court as falling within the Parliament's power under s 122 'to make laws for the government of any territory'.[126] Consequently, the predominant view is that s 122 allows Parliament to supplement the jurisdiction of the High Court,[127] although some locate Parliament's power in other sections of the Constitution.[128]
However, this construction creates difficulties: Chapter III's status as the sole source of federal judicial power underpins many constitutional principles, including the implied separation of powers.[129] Further, Chapter III has been authoritatively regarded as 'exclusive and exhaustive'.[130] Consequently, it has been recognised that this use of s 122 is theoretically flawed.[131] Finally, although s 122 is increasingly regarded as an integrated part of the Constitution,[132] the effects of the absence of the words 'subject to this Constitution', which preface the legislative powers of ss 51 and 52, are unsettled.[133] Thus, the relationship between Chapter III and s 122 is somewhat fraught:[134] although it is settled, for example, that judges of the ACT Supreme Court are not subject to the terms of s 72,[135] citizens of the ACT have been held to enjoy the right to freedom of political communication implied from the Constitution[136] and it has been held that s 90 of the Constitution applies to the Territories.[137]
Many of the difficulties inherent in determining the constitutional position of the Territories, and the lack of settled law in the area, are the product of the changing nature of the Territories since Federation and the disparate nature of the Territories renders the development of universal principles more difficult.[138] For example, the decision in R v Bernasconi,[139] while influenced by the particular context of trial procedure in New Guinea, articulated a principle of general application to the Territories: that the whole of Chapter III was inapplicable to the Territories. In Spratt v Hermes[140] the High Court was divided on whether this broad principle was good law.[141] The issue was recently canvassed again in Eastman,[142] in which the majority were again divided on the nature of the relationship between s 122 and Chapter III. In the time between Bernasconi and Eastman, the extent of Australia's Territories changed significantly: for example, Papua, New Guinea and Nauru were no longer territories[143] and the ACT and NT had become self-governing.[144] Further, the constitutional position of the States had evolved.[145]
The 'separatist'[146] view of Bernasconi and Boilermakers',[147] in which s 122 was regarded as independent of the remainder of the Constitution, has given way to a more 'integrated' approach, by which s 122 is subject to at least some constitutional constraints.[148] However, as Eastman demonstrates, the jurisprudence relating to the Territories is still heavily influenced by decisions made in circumstances alien to those of the present Territories,[149] rests heavily on the 'shaky foundations'[150] of early cases (in particular, Bernasconi), and some members of the High Court have expressly stated that a new approach to the issue is precluded by a reluctance to disturb the line of authority.[151] Further, the current diversity of Australian Territories,[152] and the availability of appeals from non-territories to the High Court,[153] creates difficulties for the Court in expounding principles of general application to all Territories and all circumstances of appellate jurisdiction.
One area of contention is whether s 35AA confers original or appellate jurisdiction on the High Court. Section 76 of the Constitution states that 'the Parliament may make laws conferring original jurisdiction on the High Court…', before specifying particular categories of laws which the Parliament can make. However, there is no equivalent enabling provision in relation to appellate jurisdiction. This has led some members of the High Court to conclude that the categories of appellate jurisdiction in s 73 are exhaustive.[154]
The question then becomes: when Parliament enables an appeal to the High Court from a Territory Supreme Court, does s 122 enable the conferral of appellate jurisdiction on the High Court, notwithstanding the apparently exhaustive list of courts in s 73 from which appeals to the High Court may be heard?[155] This question has not been answered definitively: however, the approach of Kirby J in Ruhani v Director of Police provides a logical solution.[156] Kirby J recognised that the categories of appellate jurisdiction in s 73 were not exhaustive, providing the example of appeals from Territories, and demonstrated how nonsensical it would be to regard an 'appeal' as an exercise of original jurisdiction.[157] Because s 122 has been accepted as anomalous in enabling the extension of federal judicial power outside Chapter III, it would be a logical extension to treat s 122 as anomalous in enabling Parliament to supplement the High Court's s 73 jurisdiction. Although Kirby J was in dissent in Ruhani, his Honour's reasoning is more pertinent to the ACT than that of the majority. (The appeal in Ruhani originated from Nauru, leading the majority to find that there was original jurisdiction because it was the first time that judicial power was engaged in Australia, thus employing logic which is inapplicable to the ACT.[158])
It is accepted that the categories of 'matters' in which the High Court has original jurisdiction cannot be expanded.[159] Given that a law made by the ACT Parliament is not a law 'made by the Parliament' for the purposes of s 76(ii),[160] a declaration of incompatibility could not be made by the High Court in exercise of its original jurisdiction. Consequently, there can be no appeal to the High Court unless a declaration falls within the appellate jurisdiction.
The view adopted in this article is that s 122 enables the expansion of the appellate jurisdiction of the High Court under s 73. Consequently, appeals to the High Court will be subject to the restrictions imposed by s 73. This assumption is necessary for the discussion in Part Three of whether an appeal from a declaration of incompatibility would be possible.[161]
It is arguable that if s 122 vests appellate jurisdiction in the High Court separate to s 73, that jurisdiction should not be constrained by the requirement that there be a 'matter', since 'matter' is not referred to in s 122. If this argument is correct, and it is determined that a declaration does not satisfy the requirement of 'matter', the absence of a 'matter' may not be fatal to the declaration being reviewed by the High Court. Whether this argument is correct is also contingent on whether a separatist or integrated approach to s 122 is adopted.
The High Court has the power to 'hear and determine appeals from all judgments, decrees, orders, and sentences' made by a State Supreme Court,[162] thus guaranteeing the right of appeal from these courts.[163] At first glance, this appears to differ from jurisdiction conferred by s 75, which limits the original jurisdiction of the High Court to 'matters'. However, the distinction between the wording of the two sections does not affect the nature of the cases which the High Court will review. The difference between the restriction to 'matters' in s 75 and the restriction to 'judgments, decrees, orders, and sentences' in s 73 is a consequence of the different contexts in which the phrases arise.
A 'matter' is not the actual proceeding, but 'the subject matter for determination in a legal proceeding'.[164] For the purposes of further analysis in Part Three, the following distinction will be drawn: in s 75, the 'matter' is the legal question which the High Court may address in its original jurisdiction, whereas in s 73, the 'judgment, decree, order or sentence' is the legal answer which the High Court can review in its appellate jurisdiction. This view comports with the reference to a 'matter' in the second paragraph of s 73, and with the consistent references to appeals from judgments etc juxtaposed against the references to jurisdiction in 'matters'. It is also consistent with the accepted interpretation of 'matter' in In re Judiciary and Navigation Acts, where the majority identified that '[t]he word "matter" is used several times in Chapter III of the Constitution (ss 73, 74, 75, 76, 77), and always, we think, with the same meaning'.[165]
Thus, while cases heard in both the appellate and original jurisdictions of the High Court must be 'matters', there is an additional requirement for the exercise of appellate jurisdiction that the original decision must be a 'judgment, decree, order, or sentence' of a court mentioned in s 73 (or, by operation of s 122, a Territory Supreme Court).[166] In Part Three, it will be considered whether a declaration falls within these requirements.
It was assumed above that the High Court exercised appellate jurisdiction when hearing appeals from the ACT Supreme Court, and that this jurisdiction (which is generally viewed as being conferred by s 122) is constrained by s 73. The requirements for an appeal to be heard by the High Court will be the same whether the appeal emanates from a State or a Territory court.[167] Thus, the analysis in Part Three is applicable to both the HRA and equivalent bills of rights introduced by States.
The importance of the High Court hearing appeals from declarations was discussed in Part Two. It was noted that the constitutional position of appeals from Territory Supreme Courts remains controversial, although the predominant position is that such appeals are not guaranteed by the Constitution.[168] This controversy is currently moot, as the Judiciary Act enables appeals from the Territory Supreme Courts.[169] However, a more pertinent question is whether the jurisdiction exercised by the High Court in hearing appeals from the Territories is appellate or original. The conclusion drawn in Part Two was that the jurisdiction was appellate, and that for an appeal to be heard, it must pertain to a legal question (a 'matter') and a legal answer (a 'judgment, decree, order or sentence').
In Part One, it was stated that the question of whether a declaration was an exercise of judicial power would affect both the availability and the nature of an appeal to the High Court. Thus, Part Three will first address the relationship between 'matter' and the exercise of judicial power, before identifying types of appeals and the requirements of each. This Part will also address the requirements of 'matter' and 'judgment, decree, order or sentence', before addressing whether a declaration of incompatibility falls within these requirements and could therefore be reviewed by the High Court.
As will be demonstrated in considering the requirements of 'matter', the nature of the relationship between the exercise of judicial power and the existence of a 'matter' is currently unsettled. However, in those decisions where the issue is canvassed, some relationship between the two concepts is often implicit. For example, in Kable, Gummow J opined that the meaning of 'judicial power' within Chapter III of the Constitution was narrower than the ordinary meaning of 'judicial power' due to the additional constraint in Chapter III that judicial power must be exercised in respect of a 'matter'[170] (as expressed in In re Judiciary and Navigation Acts). Thus, his Honour implied that a 'matter' is some subset of an exercise of ordinary 'judicial power'. Similarly, many of the High Court's definitions of judicial power appear to conflate the requirements of 'matter' and 'judicial power'.[171]
However, a formulation of 'matter' that is coextensive with a formulation of judicial power is difficult to reconcile with such cases as Kable. It was accepted by the High Court in that case that the NSW Supreme Court was required by the impugned legislation to perform functions which were described as 'repugnant to'[172] and the 'antithesis of the judicial process',[173] and 'inconsistent'[174] with the exercise of federal judicial power. Nevertheless, the decision made by the NSW Supreme Court in pursuance of this non-judicial function was the subject of an appeal to the High Court, and thus presumably yielded a 'matter' within the meaning of s 73 (although the issue was never addressed). Certainly, the imprisonment of an individual for an indefinite period, which was the question before the NSW Supreme Court, would fall within any of the mooted definitions of 'matter', as it imposes an immediate duty on the individual and affects his or her present rights, as would a constitutional challenge to legislation purporting to effect such imprisonment, which was the question before the High Court. Thus, although the High Court reviewed the decision of the NSW Supreme Court, it engaged in consideration of a different 'matter', or legal question. Consequently, the Kable principle supports the view that in its appellate jurisdiction, the High Court will consider 'matters' arising from 'judgment, decrees, orders and sentences' even if there is no valid exercise of judicial power in the original decision. For this reason, the questions of judicial power and 'matter' have been treated separately in this article.
Consequently, although there are arguments for and against the characterisation of a declaration of incompatibility as an exercise of judicial power, this characterisation may not be determinative of the existence of an appeal from a declaration. However, as will be discussed in the next section, the question of whether a declaration represents an exercise of judicial power is critical to the question of the type and extent of review that the High Court can undertake.
In Part Two, it was identified that for an appeal from a Territory Supreme Court to be heard by the High Court, the case must satisfy the dual requirements of s 73 that there be a legal question and a legal answer.[175] However, there is an additional requirement: that the High Court, in exercising its appellate jurisdiction, is exercising judicial power.[176] As identified in the previous section, this is most appropriately treated as a separate requirement, despite some High Court authority that the question of 'matter' and judicial power are related. Although the term 'appeal' connotes 'a judicial proceeding for the purpose of revising a judicial proceeding'[177] — and thus connotes the exercise of judicial power at both original and appellate levels — Kable demonstrates that the absence of judicial power at first instance is not necessarily fatal to the ability of the High Court to engage in some review. It may mean, however, that the 'appeal' is merely a one-off judicial review of the constitutional validity of the legislation which purported to confer a power on a court, as was the case in Kable.[178] Thus, there are four possible responses of the High Court to a declaration of incompatibility:
Effect of Existence of Matter and Judicial Power on Nature of High Court Jurisdiction (with examples of cases in which the scenarios arose)
|
|
Matter
|
Not Matter
|
|
Judicial Power
|
Conventional appeal
|
Review of legislation conferring power on court
(In re Judiciary and Navigation
Acts)[179]
|
|
Non-judicial Power
|
Review of legislation conferring power on court
|
No jurisdiction
|
Thus, if a declaration is both a 'matter' and an exercise of judicial power, the High Court would be able to review the merits of a declaration on appeal. In this case, the High Court could overturn an existing declaration, or make a declaration where the ACT Supreme Court had failed to do so. However, if the ACT Supreme Court is not exercising judicial power, the High Court may nevertheless hear the 'matter', but not to review its merits — rather, to conduct a once-off judicial review of the legislation, as was done in Kable and Holmes. Conversely, if there is judicial power, the High Court may hear the case to determine whether the legislation gives rise to a 'matter', as was done in In re Judiciary and Navigation Acts. In these cases, the High Court would potentially be able to review the formality of the decision rather than its substance (to ensure, for example, congruity with the exercise of federal judicial power).
It was argued in Part One that a declaration of incompatibility could be regarded as a novel procedure giving rise to a novel remedy.[182] If this is the case, the High Court might be more likely to consider such a procedure as amenable to review. In contemplating whether a State legislature could confer a new jurisdiction on a Supreme Court but preclude appeal to another court regarding the exercise of the new jurisdiction, Griffith CJ in Holmes found that the answer 'depends upon the Constitution… there might be considerable difficulty in saying that any words could deprive this Court of its jurisdiction to entertain an appeal from a decision made in the exercise of the new jurisdiction',[183] thus indicating the High Court's reluctance to regard new processes or powers as beyond review ab initio.[184] There is also the argument that if a novel procedure is devised by a legislature, the High Court as the apex appellate court and the ultimate arbiter of judicial questions should be able to determine its validity.[185] Such an argument also justifies the High Court's review of an exercise of non-judicial power in Kable: it was precisely because the power being exercised by the NSW Supreme Court was non-judicial that the High Court heard an appeal from the decision and reviewed the legislation which purported to confer the power.
There is very little jurisprudence relating to which decisions fall within the definition of 'judgment, decree, order or sentence'. In those cases which have addressed the question, the High Court has emphasised the existence a legal question — by addressing, for example, whether judicial power is exercised,[186] whether there is a 'matter',[187] and whether the proceedings at first instance were conducted by a Supreme Court or a judge persona designata.[188] Once the requirement of a legal question is satisfied, the High Court has regarded the corresponding answer as being a decision which falls within the Court's power under s 73, provided it is a final answer rather than an interlocutory decision[189] or a jury's finding.[190] A declaration is not interlocutory and therefore is a permissible 'answer'. Consequently, the requirement of a 'judgment, decree, order or sentence' at first instance will not independently preclude an appeal to the High Court in relation to a declaration. What is critical is the nature of the legal question; the existence of judicial power was considered in Part One and it is now necessary to address the requirement of a 'matter'.
The High Court expounded the meaning of 'matter' in In re Judiciary and Navigation Acts,[191] a case which has never been overruled, but has been reinterpreted to the extent that its binding force is questionable. The majority defined 'matter' as 'the subject matter for determination in a legal proceeding' and opined that 'there can be no matter … unless there is some immediate right, duty or liability to be established by the determination of the Court'.[192] The majority stated that Parliament 'cannot authorize this Court to make a declaration of the law divorced from any attempt to administer that law'[193] and previous cases in which a 'matter' had been found to exist were distinguished by the majority on the grounds that '[a]ll [those] questions affect[ed] actual existing rights of parties to a dispute'.[194]
As discussed in Part One, the majority very quickly determined that judicial power was being exercised, without considering whether, and in what way, this influenced the existence of a 'matter'. The majority's failure to define any nexus between these two concepts seems strange when juxtaposed against their distinction of other cases partially on the ground that 'their decision [was] an exercise of the judicial power within the provisions of section 76 of the Constitution'[195] and their requirement of a 'legal proceeding' and of the existence of 'rights, duties and liabilities', which imply that a 'matter' must be a legal controversy requiring the exercise of judicial power. This nexus appears to be recognised in subsequent decisions, without any explanation of how this later analysis comports with the majority in In re Judiciary and Navigation Acts. For example, in Croome, the majority stated that '[t]he "matter" is not the proceeding but the subject of the controversy which is amenable to judicial determination in the proceeding'.[196]
In Mellifont, the majority stated that there were 'two critical concepts' emanating from In re Judiciary and Navigation Acts: first, 'the notion of an abstract question of law not involving the right or duty of any body or person' and, secondly, 'the making of a declaration of law divorced or dissociated from any attempt to administer it'.[197] This statement differs from the formulation of In re Judiciary and Navigation Acts: the requirements of immediacy and that there be an existing dispute between the parties are absent from the Mellifont formulation. However, these 'critical concepts' have often been described as the principles for which In re Judiciary and Navigation Acts stands.[198]
Thus in Croome,[199] the High Court was faced with an application for a declaration of invalidity under s 109 of several provisions of the Tasmanian Criminal Code[200] which were said to be inconsistent with the Commonwealth Human Rights (Sexual Conduct) Act 1994 (Cth). One might argue that the prohibition of certain sexual conduct created an 'immediate duty' in the sense of a duty to obey the law and refrain from such conduct. However, there had been no attempt to administer the impugned legislation, and consequently no 'matter' in the sense of there being any subject for determination in a legal proceeding, nor any existing rights of parties to a dispute.
The facts in Croome clearly did not fall within the limits envisaged by the majority in In re Judiciary and Navigation Acts. However, rather than expressly expanding the ratio of the earlier case, the majority in Croome did not directly address this issue.[201] Rather, they drew an analogy between the applicants and the position of a State Attorney-General, concluding that 'it is a long-standing doctrine that a "matter" may consist of a controversy between a person who has a sufficient interest in the subject and who asserts that a purported law is invalid and the polity whose law it purports to be'.[202] The requirement of some 'right' to be determined was satisfied by a 'right' to a declaration of invalidity under the Constitution, although there was no legal right arising from the impugned law.[203]
The minority (who reached the same conclusion) found that the proposition that Parliament 'cannot authorise this Court to make a declaration of law divorced from any attempt to administer that law' merely established the exhaustive nature of Chapter III's conferral of judicial power.[204] Again, this statement did not comport with the anomalous position of s 122. Further, the minority considered that this proposition did not support the conclusion that the existence of legal proceedings against an individual was critical to the existence of a 'matter',[205] without explaining how this result could be reconciled with In re Judiciary and Navigation Acts.[206]
In summary, although In re Judiciary and Navigation Acts enunciates a clear principle which is frequently cited by the High Court, the cases in which its ratio has been applied have resulted in outcomes which do not appear to comport with the ratio of the majority. In particular, the decisions in Mellifont and Croome indicate that the case is being cited for propositions that do not strictly adhere to the original ratio, and is being applied alongside principles which have an uncertain relationship with the central doctrine, such as the nexus between the existence of a 'matter' and the exercise of judicial power. Thus, the current extent of the 'matter' requirement is unclear, though nevertheless critical to determining whether the High Court could hear an appeal from a declaration.[207]
In Part One, several different ways of characterising a declaration were identified. If a declaration is perceived as a mere extension of the interpretative process, then the High Court would be able to review the declaration — not as a separate 'matter', but as an incident to the legislative interpretation which would be necessary to the determination of the substantive dispute.
However, it was argued that it would be more likely that the High Court would consider a declaration to be a separate process.[208] Viewed in this way, a declaration will not confer any right on an applicant in the same manner as an award of damages or the imposition of a punitive sentence. However, the notion of a 'right' has been very widely defined. For example, in Abebe, Gummow and Hayne JJ stated (in relation to the status of the judicial review of a proceeding before the Refugee Review Tribunal by the Federal Court) that
what is significant for immediate purposes is that the Tribunal has a duty to reach its decision according to law and an applicant to that Tribunal has a right enforceable in the exercise of federal judicial power to have it do so.[209]
Similarly, in Croome, the majority referred to the 'right' to a declaration of invalidity under s 109, provided the claimant had a 'sufficient interest to raise a justiciable controversy'.[210] Conversely, in Abebe Gleeson and McHugh JJ stated that '[t]he existence of a "matter" … cannot be separated from the existence of a remedy to enforce the substantive right, duty or liability.'[211] It can thus be seen that there are two — perhaps opposing — ways in which rights have been defined by courts: cases following the seminal judgment of Ashby v White[212] draw a link between the existence of a right and the existence of a remedy or outcome,[213] whereas Teoh, Croome and Abebe suggest that the requirement of 'right' may be satisfied by a mere right to some judicial or administrative consideration or determination of an issue. (These views may be reconciled by considering a process as a remedy in itself). When viewed in this light, and considering the perception by plaintiffs that declarations are a desirable 'remedy',[214] it is submitted that it is open to the High Court to regard a declaration as constituting a 'matter', even if one only considers its effect on the legislature.
Further, if one accepts that a declaration imposes an obligation on the Attorney-General, the expansive meaning given to 'right' in Teoh, Croome and Abebe supports the view that a declaration can be viewed as a 'liability' for the purpose of giving rise to a 'matter'. The absence of a 'right' is generally regarded as determinative of the existence of a 'matter' in situations where there is only an abstract or hypothetical question, with no related dispute (or parties).[215] A declaration does not have these features. It is therefore submitted that a consideration of all the relevant features of a declaration leads to the conclusion that it could conceivably be regarded as a 'matter' by the High Court.[216] It should be noted that there are other approaches to the question of the existence of a 'matter' which yield the same conclusion.[217]
It has been emphasised that the requirements of 'matter' are unclear, and in many cases the formulations which have been proposed are not well-suited to application to declarations of incompatibility. The arguments made here in support of there being a 'matter' also rest, in part, on earlier arguments regarding the characterisation of the declaration, which are also contentious. Consequently, it is necessary to consider what would happen if no 'matter' was found to exist: given that a declaration only arises out of a pre-existing dispute, would the High Court be able to review a declaration in tandem with hearing an appeal from the substantive dispute? Further, a declaration may also, if the law progresses in the same way as it has in New Zealand and the UK, give rise to more traditional rights and liabilities in its own right. Would this enable the High Court to review a declaration even if the declaration itself did not constitute a matter?
In Abebe, the High Court addressed the question of whether the Commonwealth Parliament could confer jurisdiction on a federal court in relation to only a part of a dispute. On the current view, appeals to the High Court (a federal court) from a Territory Supreme Court are within jurisdiction conferred by the Commonwealth Parliament under s 122. Would it then be possible for the High Court not to hear the full extent of the dispute (which would include the declaration of incompatibility)? Gleeson CJ and McHugh J in Abebe found that
nothing in the terms of s 77 or Ch III of the Constitution requires the Parliament to give a federal court authority to decide every legal right, duty, liability or obligation inherent in a controversy… merely because it has jurisdiction over some aspect of the controversy.[218]
Consequently, if a state of affairs potentially gives rise to a variety of rights, duties and obligations, the jurisdiction of a federal court (such as the High Court) to hear a 'matter' in relation to that state of affairs does not have to extend to all parts of the controversy.[219]
A federal court's accrued jurisdiction encompasses federal claims and non-federal claims which are based on the same facts and are not severable.[220] However, the fact that the High Court may have jurisdiction in relation to one part of a factual substratum does not mean that it has jurisdiction in relation to all 'matters' arising from those facts,[221] or, presumably, all controversies which are not 'matters', if part of that factual substratum is severable. Whether a declaration would be severable is likely to be contingent on its initial characterisation: if it is an incident of the interpretative process, it might be more readily regarded as non-severable than if it was regarded as an entirely separate process.[222]
What would be the position if a declaration was viewed as non-judicial? It is accepted that the Boilermakers' principle requires that a federal court may only exercise 'the judicial power of the Commonwealth or a power ancillary or incidental thereto'.[223] If a declaration is not an exercise of judicial power, could it be an exercise of power 'auxiliary or incidental thereto'?[224] Again, the answer to this question would depend on the initial characterisation of the declaration as discussed in Part One: if it is an extension of the interpretative process, it would be logical to conclude that it is ancillary to the judicial process and thus able to be reviewed; if it is a separate process, this view may be more difficult.[225]
There is another way in which a declaration of incompatibility may be associated with a decision from which an appeal may be heard. An analogy may be drawn with MacDonald v South Australian Railways Commissioner.[226] In that case, the High Court did not reconsider a decision of the South Australian Supreme Court regarding the sum of compensation owed to a landowner, on the basis that the Supreme Court was not exercising judicial power. However, the High Court indicated that the critical feature of the original decision which precluded its review was that it was 'merely an ascertainment of the value to which the appellants are entitled … [which] cannot have the force of a judgment of the Supreme Court until a successful action is brought upon it'.[227] In other words, once that value became the subject of a recognised action, the High Court would review not only the action, but the original decision of value — even though the original decision could not be reviewed by itself.[228]
It was argued in Part One that if the Attorney-General failed to fulfil the obligations imposed by the HRA, an order of mandamus could be sought. This order of mandamus could be appealed to the High Court. Based on the High Court's reasoning in MacDonald,[229] it is arguable that if the High Court is able to review mandamus compelling a response to a declaration, it is logical that the High Court would also consider the declaration which precipitated the mandamus.
It has been argued that a declaration may be viewed as an exercise of judicial power, and may also be regarded as constituting a 'matter'. If these arguments are accepted, a declaration may be the subject of an appeal to the High Court for a full review of the merits of the declaration.
However, there are substantial arguments against this position. In particular, the intention that the Court will advise the legislature weighs against the existence of judicial power, and the fact that a declaration does not affect the parties' rights weighs against the existence of a 'matter'. In Part Four, it will be considered whether the issuing of a declaration would violate the Kable principle.
The Kable principle precludes State courts from exercising power which is incompatible with their status as repositories of federal judicial power.[230] Thus, the rationale for the restriction on the powers which may be conferred on these courts is the position that they hold in the Australian judicial system established by Chapter III.[231] It is accepted that the Kable principle applies to Northern Territory courts.[232] However, the position of ACT courts in the Australian judicial system differs due to the differing federal judicial power vested in the Court.[233] It is therefore necessary to consider whether the ACT Supreme Court is able to exercise federal judicial power — which is a condition precedent to the Kable principle having any application to the HRA — before addressing whether the HRA complies with the requirements of Kable.
A distinction must be drawn between federal judicial power and federal jurisdiction,[234] although the phrases are occasionally used interchangeably.[235] The nature of judicial power was discussed in Part One.[236] Federal jurisdiction is the 'the authority to adjudicate [in a particular dispute] derived from the Commonwealth Constitution and laws'.[237] The High Court has adopted a very expansive approach to the extent of federal jurisdiction:[238] a court may exercise federal jurisdiction without realising it[239] — for example, in dismissing an argument that a State law is invalidated by the Australian Constitution.[240] Section 71 states that any court which is invested with federal jurisdiction is consequently vested with federal judicial power.[241]
The extent of the federal jurisdiction of the ACT Supreme Court is unsettled.[242] However, it is accepted that a Territory Supreme Court can exercise federal jurisdiction,[243] and is therefore vested with federal judicial power.[244] Consequently, the Kable principle will be applicable to the ACT Supreme Court. This view was approved by the majority in Bradley, who accepted that 'courts created pursuant to s 122 may also be invested with the judicial power of the Commonwealth',[245] and that 'it should now be recognised, consistently with the decision in Kable, that the Constitution also requires that those courts be constituted by persons who are impartial and who appear to be impartial.'[246]
The High Court in Kable held that State courts could not exercise powers which were repugnant to or inconsistent with the exercise of the federal power of the Commonwealth, and that a State law conferring such powers would be invalid.[247] The functions conferred upon the NSW Supreme Court in Kable were 'antithetical' to the judicial process, thus compromising the integrity of the court, which was significantly affected by the public perception of impartiality and independence from the executive and legislative arms of government.[248] The Kable principle was explained by three judges in Forge v Australian Securities and Investments Commission[249] as being founded upon the 'maintenance of the defining characteristics of a "court"', and that a court’s institutional integrity would only be compromised if the court in some way lost the unique characteristics of a court.[250] The Kable principle is therefore closely associated with the question of the nature and characteristics of judicial power, considered earlier in this article.
The High Court considered the Kable principle in Fardon.[251] Despite some similarities between the legislation in question in that case and in Kable, the High Court did not invalidate the impugned legislation, with McHugh J in particular noting the limited applicability of the Kable principle.[252] Courts have consistently highlighted the 'extraordinary' nature of the impugned legislation in Kable,[253] and Kirby J, who was in dissent in Forge, noted that the Kable principle had only once been applied to render a law invalid.[254] However, several members of the Court have expressly left open the possibility of other applications of the principle[255] — including, in particular, determining the validity of the conferral of additional power on judges.[256]
The Kable principle requires the independence of the judiciary from both the legislature and the executive. However, given the distinction drawn by some judges between judicial power and federal judicial power,[257] it is theoretically possible that even a conferral of judicial power (in a broad sense) on a State court could be incompatible with its exercise of federal judicial power.[258]
Even if a declaration of incompatibility was regarded as a non-judicial function, there is no analogy between the type of function required of the Court by the HRA and the function of the court under the Kable legislation. The source of the repugnancy or incompatibility with the judicial function in Kable, which has been emphasised in subsequent cases,[259] was the fact that it made the judiciary a tool of the executive[260] but enabled the other arms of government 'to cloak their work in the neutral colours of judicial action'.[261]
Even if the function of making a declaration is perceived to be non-judicial and perhaps executive or legislative in nature, this characterisation is separate from the question of whether the function would diminish the appearance of impartiality of the Court.[262] It is submitted that even if a declaration is non-judicial, it is unlikely that the judiciary in making a declaration would appear to be merely effecting the will of the executive or legislature — a declaration would be more likely to have the opposite appearance.[263] Nor is the function of making a declaration 'closely connected with the legislature or executive', or to be performed on the advice of either of these branches, considerations which were critical in Wilson.[264] It is not 'of a purely governmental nature' as would be a power to make government policy.[265]
The institutional integrity of the judiciary[266] is in fact protected by various provisions of the HRA, including ss 21, 22, 24 and 25.[267] Further, the role of the Court in s 30 is within the normal process of judicial interpretation and s 32 enables judicial discretion.[268] The context of a pre-existing dispute indicates that the ordinary rules of procedural fairness, impartiality and hearing will be observed, and thus a declaration will be made in a judicial manner.[269]
However, 'the essential notion [of Kable] is that of repugnancy to or incompatibility with [the] institutional integrity of the State courts',[270] of which the ability of impugned legislation to diminish public confidence is an 'important consideration'.[271] Public confidence may be diminished in other ways: for example, by diminishing the appearance of a court as an authoritative body whose declarations are final and conclusive.[272] It may also be diminished if a court is perceived to be engaging in considerations of policy and social utility beyond the scope of its institutional competence.[273] This diminution in public confidence may occur even if the power to make a declaration is regarded as judicial in nature.
The role of public confidence should not be overstated: it is one thing to say that a particular function diminishes public confidence in the judiciary, but quite another to say that this diminution leads to 'incompatibility with [the] institutional integrity' of a court. Further, the principle has been frequently distinguished and has rarely been applied to invalidate other legislation, even legislation with many of the same features.[274] It is therefore unlikely that the Kable principle would invalidate s 32 of the HRA, even if a declaration was found to be an exercise of non-judicial power.
This article has addressed the constitutional limitations which may apply to s 32 of the HRA. It was argued that the process surrounding a declaration, established by the HRA, could be viewed as a novel judicial procedure giving rise to a novel remedy, as it establishes an obligation on the Attorney-General and a corresponding right. Analogies were drawn between the 'remedy' established by s 32 and the High Court jurisprudence in which a right to a process (rather than to a particular outcome) has been regarded as giving rise to a 'matter'. If this characterisation is accepted, it is much simpler to regard a declaration as representing an exercise of judicial power, and constituting a 'matter'. Thus, the nature of the declaration process may be critical to the availability of an appeal to the High Court: the scope of the process should therefore be considered carefully by States and Territories contemplating their own bills of rights.
Many of the applicable areas of law are contentious, and their application to a novel provision such as s 32 introduces further uncertainty. Suggestions were made in this article as to how courts might address the various questions arising under s 32. The constitutional questions were considered independently in this article so that the full gamut of issues could be canvassed.
The operation of the Kable principle, or a finding that a declaration does not give rise to an exercise of judicial power or a 'matter' will render a declaration unable to be appealed to the High Court, or even an invalid conferral of power on the ACT Supreme Court. Consequently, this article has demonstrated that there are several constitutional hurdles associated with the introduction of a bill of rights by a State or Territory, any of which may limit its application or lead to the development of jurisprudence which cannot be reviewed by the High Court.
[*] LLB (Hons), BE (Civil) (Hons), GDLP. This article was originally submitted as an Honours Dissertation at the University of Adelaide. I would like to thank Professor John Williams for his comments and guidance in the preparation of this article. I would also like to thank Professor Geoffrey Lindell for his comments on earlier version of this paper.
[1] See, eg, Bill Stefaniak, 'Our Laws Are Enough', The Canberra Times (Canberra), 25 April 2002, 11; see also ACT Bill of Rights Consultative Committee, Towards an ACT Human Rights Act (2003) 17–21, 33–7, 39–41.
[2] See, eg, ACT Bill of Rights Consultative Committee, above n 1, 38.
[3] Human Rights Act 1998 (UK) c 42.
[4] Bill of Rights Act 1990 (NZ).
[5] Australian Associated Press, NSW: Iemma Willing to Consider Charter of Rights Proposal (20 March 2006) ACT Human Rights Act Research Project <http://acthra.anu.edu.au/news/index.html> at 29 May 2006; Judy Jackson, 'Human Rights Reference to Law Reform Institute' (Press Release, 9 February 2006); Ben Spencer, 'McGinty Considers Bill of Rights', The West Australian (Perth), 1 April 2006, 62; Nick Lenaghan, Victoria to Adopt Human Rights Charter (2 May 2006) ACT Human Rights Act Research Project <http://acthra.anu.edu.au/news/index.html> at 29 May 2006; contra Standing Committee on Law and Justice, Parliament of New South Wales, A NSW Bill of Rights (2001); Victorian Human Rights Consultation Committee, Draft Charter of Human Rights and Responsibilities (2005).
[6] This article does not address the content of that Act; however, where sections of the HRA are discussed, references are provided to the equivalent sections in the Victorian Act.
[7] James Stellios, 'Federal Dimensions to the ACT Human Rights Act' [2005] AIAdminLawF 21; (2005) 47 AIAL Forum 33; Standing Committee on Legal Affairs, ACT Legislative Assembly, Scrutiny of Bills and Subordinate Legislation Report No 42 (2004) 11–12.
[8] Human Rights Act 2004 (ACT) s 32(2).
[9] ACT Bill of Rights Consultative Committee, above n 1; Explanatory Memorandum, Human Rights Bill 2003 (ACT).
[10] Human Rights Act 2004 (ACT) s 32(3).
[11] Breavington v Godleman [1988] HCA 40; (1988) 169 CLR 41, 120–5 (Deane J); Kable v Director of Public Prosecutions (NSW) [1996] HCA 24; (1996) 189 CLR 51, 112–14 (McHugh J), 137–9 (Gummow J) ('Kable'); Abebe v Commonwealth [1999] HCA 14; (1999) 197 CLR 510, 559 (Gaudron J) ('Abebe'); Kruger v Commonwealth [1997] HCA 27; (1997) 190 CLR 1, 175 (Gummow J); Australian Law Reform Commission, The Judicial Power of the Commonwealth, Report No 92 (2001) [2.34], [2.67]; Gould v Brown (1998) 193 CLR 346, 479 (Kirby J).
[12] Lipohar v The Queen (1999) 200 CLR 485, 500 (Gleeson CJ), 505–6 (Gaudron, Gummow and Hayne JJ) ('Lipohar'); Lange v Australian Broadcasting Corporation [1997] HCA 25; (1997) 189 CLR 520, 563–7 (per curiam) ('Lange').
[13] John Pfeiffer Pty Ltd v Rogerson [2000] HCA 36; (2000) 203 CLR 503, 514, 518 (Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ) ('Pfeiffer'); Commonwealth v Mewett (1997) 191 CLR 471, 524–5 (Gaudron J) ('Mewett').
[14] Kable [1996] HCA 24; (1996) 189 CLR 51, 68 (Brennan CJ), 96 (Toohey J), 101–2 (Gaudron J), 110 (McHugh J); Le Mesurier v Connor [1929] HCA 41; (1929) 42 CLR 481, 495–8 (Knox CJ, Rich and Dixon JJ); Federated Sawmill, Timberyard and General Woodworkers' Employes' Association (Adelaide Branch) v Alexander [1912] HCA 42; (1912) 15 CLR 308, 313 (Griffith CJ).
[15] See, eg, Holmes v Angwin [1906] HCA 64; (1906) 4 CLR 297 ('Holmes'); C A MacDonald Ltd v The South Australian Railways Commissioner [1911] HCA 14; (1911) 12 CLR 221; cf Kable [1996] HCA 24; (1996) 189 CLR 51, 85–6 (Dawson J).
[16] Malcolm Farr, 'States Rights Push Wrong', The Daily Telegraph (Sydney), 7 April 2006, 17.
[17] Australian Law Reform Commission, above n 11, [2.65].
[18] International Covenant on Civil and Political Rights, opened for signature 16 December 1966, 999 UNTS 171 (entered into force 23 March 1976).
[19] R v Kirby; Ex parte Boilermakers' Society of Australia [1956] HCA 10; (1956) 94 CLR 254 ('Boilermakers' Case').
[20] In re Judiciary and Navigation Acts [1921] HCA 20; (1921) 29 CLR 257.
[21] Kable [1996] HCA 24; (1996) 189 CLR 51.
[22] The judicial functions are fully set out in Part 4.
[23] Human Rights Act 2004 (ACT) s 30(1); cf Charter of Human Rights and Responsibilities Act 2006 (Vic) s 32.
[24] Human Rights Act 2004 (ACT) s 32(2); cf Charter of Human Rights and Responsibilities Act 2006 (Vic) s 36(2).
[25] Human Rights Act 2004 (ACT) s 32(4); cf Charter of Human Rights and Responsibilities Act 2006 (Vic) s 36(4).
[26] Human Rights Act 2004 (ACT) s 33(2); cf Charter of Human Rights and Responsibilities Act 2006 (Vic) s 37.
[27] Human Rights Act 2004 (ACT) s 33(3); cf Charter of Human Rights and Responsibilities Act 2006 (Vic) s 37.
[28] Human Rights Act 2004 (ACT) s 32(3); cf Charter of Human Rights and Responsibilities Act 2006 (Vic) s 36(5).
[29] Human Rights Act 2004 (ACT) pt 3.
[30] Human Rights Act 2004 (ACT) s 32(1); cf Charter of Human Rights and Responsibilities Act 2006 (Vic) s 36(1).
[31] See, eg, Firestone v Australian National University [2004] ACTSC 76 (Unreported, Higgins CJ, 1 September 2004) [47]–[48]; Robertson v Australian Capital Territory [2005] ACTSC 35 (Unreported, Crispin J, 29 April 2005) [7]; Skaramuca v Craft [2005] ACTSC 61 (Unreported, Higgins CJ, 22 July 2005) [105]; IF v ACT Commissioner for Housing [2005] ACTSC 80 (Unreported, Crispin J, 26 July 2005) [59]–[62]; R v Khajehnoori [2005] ACTSC 76 (Unreported, Gyles J, 9 August 2005) [30].
[32] R v YL [2004] ACTSC 115 (Unreported, Crispin J, 27 October 2004) [31], [79]; R v Trevitt [2005] ACTSC 48 (Unreported, Higgins CJ, 7 June 2005) [25]–[26]; In the Matter of an Application for the Adoption of TL [2005] ACTSC 49 (Unreported, Connolly J, 1 July 2005) [11]; SI bhnf CC v KS bhnf IS [2005] ACTSC 125 (Unreported, Higgins CJ, 2 December 2005) [23]; R v Caruso [2006] ACTSC 45 (Unreported, Crispin J, 15 May 2006) [30]; R v PJ [2006] ACTSC 37 (Unreported, Connolly J, 2 May 2006) [11]–[13].
[33] See, eg, R v O'Neill [2004] ACTSC 64 (Unreported, Connolly J, 30 July 2004) [13], which cites s 24 to support the view that the protection from double jeopardy is deeply ensconced in law; Szuty v Smith [2004] ACTSC 77 (Unreported, Higgins CJ, 1 September 2004) [129], [131], which cites s 16 to support the availability of the defence of fair comment in defamation proceedings; SI bhnf CC v KS bhnf IS [2005] ACTSC 125 (Unreported, Higgins CJ, 2 December 2005) [72] and Stock v Hyde [2006] ACTSC 11 (Unreported, Connolly J, 3 February 2006) [18], which cite s 21 to support the principle of a right to due process; see also R v YL [2004] ACTSC 115 (Unreported, Crispin J, 27 October 2004) [90], [108]; A v Chief Executive of Department of Disability, Housing & Community Services [2006] ACTSC 43 (Unreported, Crispin J, 10 May 2006), which discusses the importance of the family unit.
[34] See, eg, R v Martiniello [2005] ACTSC 9 (Unreported, Connolly J, 31 January 2005) [30] conferring a positive duty on the DPP to ensure sufficient evidence is available when the matter is set down for trial; In the Matter of an Application for the Adoption of TL [2005] ACTSC 49 (Unreported, Connolly J, 1 July 2005) [14] and R v Upton [2005] ACTSC 52 (Unreported, Connolly J, 1 July 2005) [10], [16]–[18], which held that judges must consider the HRA in exercising discretion conferred by statute; see also Fletcher v Harris [2005] ACTSC 27 (Unreported, Higgins CJ, 18 April 2005).
[35] [2005] ACTSC 52 (Unreported, Connolly J, 1 July 2005).
[36] R v Upton [2005] ACTSC 52 (Unreported, Connolly J, 1 July 2005) [24].
[37] See, eg, Stock v Hyde [2006] ACTSC 11 (Unreported, Connolly J, 3 February 2006) [18]; R v Upton [2005] ACTSC 52 (Unreported, Connolly J, 1 July 2005) [19]–[24]. For further discussion of the developments in New Zealand and the UK, see Carolyn Evans, 'Responsibility for Rights: The ACT Human Rights Act' (2004) 32 Federal Law Review 291, 299, 303–4, 306–8.
[38] Human Rights Act 1998 (UK) c 42, s 4.
[39] See, eg, R v A [2002] 1 AC 45, 64–8 (Lord Steyn), cf 86–8 (Lord Hope).
[40] Cf Human Rights Act 1998 (UK) c 42, s 10; Andrew Butler, 'Judicial Review, Human Rights and Democracy' in Grant Huscroft and Paul Rishworth (eds), Litigating Rights: Perspectives from Domestic and International Law (2002) 47, 65–6.
[41] European Convention for the Protection of Human Rights and Fundamental Freedoms, opened for signature 4 November 1950, 213 UNTS 221, art 1 (entered into force 3 September 1953); see also Ian Leigh, 'The UK's Human Rights Act 1998: An Early Assessment' in Grant Huscroft and Paul Rishworth (eds), Litigating Rights: Perspectives from Domestic and International Law (2002) 323, 327–31; Andrew Butler, 'The Bill of Rights Debate: Why the New Zealand Bill of Rights Act 1990 is a Bad Model for Britain' (1997) 17 Oxford Journal of Legal Studies 323, 339.
[42] Bill of Rights Act 1990 (NZ) ss 4, 5.
[43] Moonen v Film and Literature Board of Review [1999] NZCA 329; [2000] 2 NZLR 9, 17 (emphasis added); see also Quilter v A-G [1997] NZCA 207; [1998] 1 NZLR 523, 554 (Thomas J); Manga v A-G of New Zealand [2000] 2 NZLR 65, 84 (Hammond J); Lord Steyn, 'Democracy Through Law' (Occasional Paper No 12, New Zealand Centre for Public Law, 2002) 16; contra Paul Rishworth, 'Civil Remedies for Breach of the Bill of Rights' in Paul Rishworth, Grant Huscroft, Scott Optican and Richard Mahoney (eds), The New Zealand Bill of Rights (2003) 811, 819.
[44] Simpson v A-G (Baigent's Case) [1994] 3 NZLR 667, 698–9 (Hardie Boys J), see also at 676 (Cooke P).
[45] See, eg, Simpson v A-G (Baigent's Case) [1994] 3 NZLR 667; Lange v Atkinson and ACP NZ Ltd [1997] 2 NZLR 22, 32 (Elias J); Moonen v Film and Literature Board of Review [1999] NZCA 329; [2000] 2 NZLR 9; R v Goodwin (No 2) [1993] 2 NZLR 390; R v Poumaha [2000] NZCA 69; [2000] 2 NZLR 695; cf R v Pora [2000] NZCA 403; [2001] 2 NZLR 37; cf R v Shaheed [2002] 2 NZLR 377; Manga v A-G of New Zealand [2000] 2 NZLR 65; see also Victorian Human Rights Consultation Committee, Rights, Responsibilities and Respect: The Report of the Human Rights Consultation Committee (2005) 126–8; contra Rishworth, 'Civil Remedies for Breach of the Bill of Rights', above n 43, 811, 819.
[46] Bill of Rights Act 1990 (NZ) preamble; Simpson v A-G (Baigent's Case) [1994] 3 NZLR 667, 676 (Cooke P), 691 (Casey J), 717–18 (McKay J), cf at 702 (Hardie Boys J); the New Zealand Court of Appeal considered Maharaj v A-G of Trinidad and Tobago (No 2) [1978] UKPC 3; [1979] AC 385, 396, 399 (Lord Diplock); Nilabati Bahera v State of Orissa (1993) Cri LJ 2899, 2912 (Anand J) (Supreme Court of India); State (Quinn) v Ryan [1965] IR 70, 122 (Ó Dálaigh CJ) (Irish Supreme Court); Byrne v Ireland [1972] IR 241 (Walsh J) (Irish Supreme Court).
[47] Human Rights Act 2004 (ACT) preamble, long title; Explanatory Memorandum, Human Rights Bill 2003 (ACT) 2; cf Charter of Human Rights and Responsibilities Act 2006 (Vic) s 1.
[48] Cf Bill of Rights Act 1990 (NZ) s 4; see, eg, Simpson v A-G (Baigent's Case) [1994] 3 NZLR 667, 693 (Hardie Boys J), 717 (McKay J); see also Butler, 'The Bill of Rights Debate' above n 41, 332, 334.
[49] R v Upton [2005] ACTSC 52 (Unreported, Connolly J, 1 July 2005) [18]; see also Victorian Human Rights Consultation Committee, Rights, Responsibilities and Respect, above n 45, 116.
[50] Human Rights Act 1998 (UK) c 42, s 6(3)(a); cf Bill of Rights Act 1990 (NZ) s 3.
[51] See, eg, Venables v News Group Newspapers [2001] 1 All ER 908, 917–18 (Butler-Sloss J); Douglas v Hello! Ltd [2000] EWCA Civ 353; [2001] 2 All ER 289, 320–4 (Sedley LJ); Anthony Lester and David Pannick (eds), Human Rights Law and Practice (1999) 31–2; Murray Hunt, 'The Horizontal Effect of the Human Rights Act' (1998) Public Law 423, 434–5; Douglas Vick, 'The Human Rights Act and the British Constitution' (2002) 37 Texas International Law Journal 329, 358–61; Gavin Phillipson, 'The Human Rights Act, "Horizontal Effect" and the Common Law: A Bang or a Whimper?' (1999) 62 Modern Law Review 824, 826; Lord Steyn, above n 43, 14; Murray Hunt, 'Human Rights Review and the Public–Private Distinction' in Grant Huscroft and Paul Rishworth (eds), Litigating Rights: Perspectives from Domestic and International Law (2002) 73, 75–88; see also Solicitor-General v Radio New Zealand [1993] NZHC 423; [1994] 1 NZLR 48; Duff v Communicado [1996] 2 NZLR 89; cf Paul Rishworth, 'Liberty, Equality and the New Establishment' in Grant Huscroft and Paul Rishworth (eds), Litigating Rights: Perspectives from Domestic and International Law (2002) 91, 97.
[52] See also Evans, above n 37, 308; cf Victorian Human Rights Consultation Committee, Rights, Responsibilities and Respect: The Summary and Recommendations (2005) 12 (recommendation 31).
[53] R v Davison [1954] HCA 46; (1954) 90 CLR 353, 380–2 (Kitto J); R v Trade Practices Tribunal; Ex parte Tasmanian Breweries Pty Ltd [1970] HCA 8; (1970) 123 CLR 361, 389–93 (Windeyer J); cf Vick, above n 51, 331–6; cf Paul Rishworth, 'The Rule of International Law?' in Grant Huscroft and Paul Rishworth (eds), Litigating Rights: Perspectives from Domestic and International Law (2002) 267, 269; contra Victorian Human Rights Consultation Committee, Summary and Recommendations, above n 52, 1.
[54] See, eg, Stellios, above n 7.
[55] Cf Butler, 'The Bill of Rights Debate', above n 41, 336; cf Noort v MOT; Curran v Police [1992] NZCA 51; [1992] 3 NZLR 260, 294 (Gault J).
[56] Human Rights Act 2004 (ACT) ss 30, 32.
[57] Cf Butler, 'The Bill of Rights Debate', above n 41, 340, 344.
[58] Explanatory Memorandum, Human Rights Bill 2003 (ACT); see also Victorian Human Rights Consultation Committee, Summary and Recommendations, above n 52, 3; cf Butler, 'The Bill of Rights Debate', above n 41, 344.
[59] Human Rights Act 2004 (ACT) ss 32, 33.
[60] Explanatory Memorandum, Human Rights Bill 2003 (ACT) 7.
[61] Human Rights Act 2004 (ACT) s 37.
[62] Cf Butler, 'The Bill of Rights Debate', above n 41, 326.
[63] The potential administrative law implications of the HRA are discussed in Evans, above n 37, 302–4.
[64] ACT Bill of Rights Consultative Committee, above n 1, 2, 5, 61–2; Explanatory Memorandum, Human Rights Bill 2003 (ACT).
[65] Human Rights Act 2004 (ACT) s 33; Standing Committee on Legal Affairs, above n 7, 13.
[66] Explanatory Memorandum, Human Rights Bill 2003 (ACT) 6; see also Victorian Human Rights Consultation Committee, Summary and Recommendations, above n 52, 10 (recommendation 21).
[67] [1995] HCA 20; (1995) 183 CLR 273 ('Teoh').
[68] [1999] HCA 14; (1999) 197 CLR 510, 571 (Gummow and Hayne JJ).
[69] [1997] HCA 5; (1997) 191 CLR 119, 126 (Brennan CJ, Dawson and Toohey JJ) ('Croome').
[70] [1921] HCA 20; (1921) 29 CLR 257, 366. The majority said that the legislature may
prescribe the means by which the determination of the Court is to be obtained, and for that purpose may … adopt any existing method of legal procedure or invent a new one. But it cannot authorize this Court to make a declaration of the law divorced from any attempt to administer that law.
[71] [1998] HCA 71; (1998) 195 CLR 424 ('Egan').
[72] Ibid 461 (McHugh J) (emphasis added), see also 466–7 (McHugh J); see also Bradlaugh v Gossett (1884) 12 QBD 271, 275 (Lord Coleridge CJ).
[73] Egan [1998] HCA 71; (1998) 195 CLR 424, 446 (Gummow, Gaudron and Hayne JJ) (following R v Richards; Ex parte Fitzpatrick and Brown [1955] HCA 36; (1955) 92 CLR 157, 162), 460, 462–4 (McHugh J), 495 (Kirby J); 509 (Callinan J).
[74] See, eg, Egan [1998] HCA 71; (1998) 195 CLR 424; see also Bradlaugh v Gossett (1884) 12 QBD 271.
[75] Egan [1998] HCA 71; (1998) 195 CLR 424, 471 (McHugh J) emphasises the distinction between standing orders and legislation.
[76] Prebble v Television New Zealand [1995] 1 AC 321, 337, cited with approval in Egan [1998] HCA 71; (1998) 195 CLR 424, 490 (Kirby J).
[77] Egan [1998] HCA 71; (1998) 195 CLR 424, 451–2 (Gaudron, Gummow and Hayne JJ), see also 492–3 (Kirby J).
[78] See Australian Capital Territory (Self-Government) Act 1988 (Cth) s 24; Egan [1998] HCA 71; (1998) 195 CLR 424, 446–8.
[79] Commonwealth v Queensland [1975] HCA 43; (1975) 134 CLR 298, 327 (Jacobs J).
[80] In re Judiciary and Navigation Acts [1921] HCA 20; (1921) 29 CLR 257; see also Commonwealth v Queensland [1975] HCA 43; (1975) 134 CLR 298, 326 (Jacobs J); cf the approach in Canada: A-G (Ontario) v A-G (Canada) [1912] AC 571; cf Reference re Secession of Quebec [1998] 2 SCR 217; see also Grant Huscroft, 'Rights, Bills of Rights, and the Role of Courts and Legislatures' in Grant Huscroft and Paul Rishworth (eds), Litigating Rights: Perspectives from Domestic and International Law (2002) 3, 12.
[81] In re Judiciary and Navigation Acts [1921] HCA 20; (1921) 29 CLR 257, 264 (emphasis added).
[82] See, eg, Helen Irving, 'Advisory Opinions, the Rule of Law, and the Separation of Powers' [2004] MqLawJl 6; (2004) 4 Macquarie Law Journal 105, 105–6.
[83] Leslie Zines, Federal Jurisdiction in Australia (3rd ed, 2002) 15. This would be consistent with the pre-Federation view that advisory opinions would be precluded because they were non-judicial: see Irving, above n 82, 109; Boilermakers' Case [1956] HCA 10; (1956) 94 CLR 254, 272; contra Commonwealth v Queensland [1975] HCA 43; (1975) 134 CLR 298, 326–7 (Jacobs J).
[84] Brandy v Human Rights and Equal Opportunity Commission [1995] HCA 10; (1995) 183 CLR 245.
[85] Cf Irving, above n 82, 111.
[86] But see ibid 105–6.
[87] See, eg, John Quick and Robert Garran, The Annotated Constitution of the Australian Commonwealth (1901) 720–1.
[88] Abebe [1999] HCA 14; (1999) 197 CLR 510, 538 (Gleeson CJ and McHugh J); Ruhani v Director of Police [2005] HCA 42; (2005) 219 ALR 199, [289]–[292] (Callinan and Heydon JJ) ('Ruhani'); Waterside Workers' Federation of Australia v J W Alexander Ltd [1918] HCA 56; (1918) 25 CLR 434, 451–3 (Barton J), 463 (Isaacs and Rich JJ); Federal Commissioner of Taxation v Munro [1926] HCA 58; (1926) 38 CLR 153, 176 (Isaacs J); Rola Co (Australia) Pty Ltd v Commonwealth [1944] HCA 17; (1944) 69 CLR 185, 198–9 (Latham CJ, McTiernan J agreeing); Huddart Parker & Co Pty Ltd v Moorehead [1909] HCA 36; (1909) 8 CLR 330, 357 (Griffith CJ).
[89] Huddart Parker & Co Pty Ltd v Moorehead [1909] HCA 36; (1909) 8 CLR 330, 357 (Griffith CJ); see also Australian Law Reform Commission, above n 11, 6; contra Ruhani [2005] HCA 42; (2005) 219 ALR 199, [13] (McHugh J).
[90] Fencott v Muller (1983) 152 CLR 570, 608 (Mason, Murphy, Brennan and Deane JJ); Wilson v Minister for Aboriginal and Torres Strait Islander Affairs [1996] HCA 18; (1996) 189 CLR 1, 11 ('Wilson'); but see Commonwealth v Queensland [1975] HCA 43; (1975) 134 CLR 298, 309, 315 (Gibbs CJ), 331 (Murphy J).
[91] Shell Co of Australia v Federal Commissioner of Taxation [1931] AC 275, 297.
[92] See, eg, Brandy v Human Rights and Equal Opportunity Commission [1995] HCA 10; (1995) 183 CLR 245, 257; following Precision Data Holdings Ltd v Wills (1991) 173 CLR 167, 188–9.
[93] In re Judiciary and Navigation Acts [1921] HCA 20; (1921) 29 CLR 257, 264.
[94] Explanatory Memorandum, Human Rights Bill 2003 (ACT) 6.
[95] Ibid; see also Victorian Human Rights Consultation Committee, Rights, Responsibilities and Respect, above n 45, 114.
[96] Human Rights Act 2004 (ACT) s 33; Explanatory Memorandum, Human Rights Bill 2003 (ACT) 6; the Standing Committee on Legal Affairs, above n 7, 2, describes the declaration as a 'judicial power of review', see also 8, contra 11.
[97] Cf Butler, 'The Bill of Rights Debate', above n 41, 340; cf Rishworth, 'The Rule of International Law?', above n 53, 267, 272; cf Victorian Human Rights Consultation Committee, Draft Charter, above n 5, s 31.
[98] This is also relevant to whether the function is incompatible with the judicial function: Wilson [1996] HCA 18; (1996) 189 CLR 1, 25 (Gaudron J).
[99] See, eg, Explanatory Memorandum, Human Rights Bill 2003 (ACT) 4.
[100] Standing Committee on Legal Affairs, above n 7, 4–5, 9–10; see also Lord Steyn, above n 43, 14. For an example of courts interpreting rights and legislation by reference to practicality and social utility, see Classroom Crucifix Case (1995) 93 BverfGE 1 (German Constitutional Court), extracted and translated in Donald Kommers, The Constitutional Jurisprudence of the Federal Republic of Germany (2nd ed, 1997); R v Big M Drug Mart 1985 CANLII 69; [1985] 1 SCR 295 (Canadian Supreme Court), extracted in Patrick Macklem et al, Canadian Constitutional Law (2nd ed, 1997); Government of the RSA v Grootboom [2000] ZACC 19; (2001) (1) SA 46 (Constitutional Court of South Africa).
[101] ACT Bill of Rights Consultative Committee, above n 1, 67–8.
[102] [1906] HCA 64; (1906) 4 CLR 297.
[103] Ibid 305.
[104] Ibid 308; see also Webb v Hanlon [1939] HCA 8; (1939) 61 CLR 313, 323–5 (Starke J), 327–8 (Dixon J), 329–30 (Evatt J) ('Webb').
[105] Holmes [1906] HCA 64; (1906) 4 CLR 297, 306–7; see also Wilson [1996] HCA 18; (1996) 189 CLR 1, 8–9 (Brennan CJ, Dawson, Toohey, McHugh and Gummow JJ); cf Hilton v Wells [1985] HCA 16; (1985) 157 CLR 57, 67–74 (Gibbs CJ, Wilson and Dawson JJ).
[106] Human Rights Act 2004 (ACT) s 32.
[107] ACT Bill of Rights Consultative Committee, above n 1, 67–8.
[108] [1906] HCA 64; (1906) 4 CLR 297.
[109] Ibid.
[110] Brandy v Human Rights and Equal Opportunity Commission [1995] HCA 10; (1995) 183 CLR 245, 258 (Mason CJ, Brennan and Toohey JJ); see also R v Davison [1954] HCA 46; (1954) 90 CLR 353, 369.
[111] [1921] HCA 20; (1921) 29 CLR 257, 266 (Knox CJ, Gavan Duffy, Powers, Rich and Starke JJ); see above n 70 and accompanying text.
[112] Brandy v Human Rights and Equal Opportunity Commission [1995] HCA 10; (1995) 183 CLR 245, 257, 269 (Deane, Dawson, Gaudron and McHugh JJ); In re Judiciary and Navigation Acts [1921] HCA 20; (1921) 29 CLR 257, 264 (Knox CJ, Gavan Duffy, Powers, Rich and Starke JJ); cf Rishworth, 'Civil Remedies for Breach of the Bill of Rights', above n 43, 811, 835.
[113] Cf Commonwealth v Queensland [1975] HCA 43; (1975) 134 CLR 298, 310 (Gibbs CJ), 322, 326 (Jacobs J).
[114] Re Ranger Uranium Mines Pty Ltd; Ex parte Federated Miscellaneous Workers' Union of Australia [1987] HCA 63; (1987) 163 CLR 656, 666; see also Commonwealth v Queensland [1975] HCA 43; (1975) 134 CLR 298, 322 (Jacobs J).
[115] Commonwealth v Queensland [1975] HCA 43; (1975) 134 CLR 298, 323 (Jacobs J).
[116] Precision Data Holdings Ltd v Wills (1991) 173 CLR 167, 188–9.
[117] Brandy v Human Rights and Equal Opportunity Commission [1995] HCA 10; (1995) 183 CLR 245, 258 (Mason CJ, Brennan and Toohey JJ).
[118] See Brandy v Human Rights and Equal Opportunity Commission [1995] HCA 10; (1995) 183 CLR 245, 259 (Mason CJ, Brennan and Toohey JJ), considering Prentis v Atlantic Coast Line, [1908] USSC 160; 211 US 210, 226 (1908) (Holmes J); 268 (Deane, Dawson, Gaudron and McHugh JJ), considering R v Gallagher; Ex parte Aberdare Collieries Pty Ltd (1963) 37 ALJR 40, 43 (Kitto J).
[119] See, eg, Stack v Coast Securities (No 9) Pty Ltd [1983] HCA 36; (1983) 154 CLR 261.
[120] Wilson [1996] HCA 18; (1996) 189 CLR 1, 20 (Brennan CJ, Dawson, Toohey, McHugh and Gummow JJ).
[121] Farr, above n 16; cf Australian Law Reform Commission, above n 11, [2.65]; see also Stephen McDonald, 'Territory Courts and Federal Jurisdiction' [2005] FedLawRw 3; (2005) 33 Federal Law Review 57, 71.
[122] Lipohar (1999) 200 CLR 485, 500 (Gleeson CJ), 505–6 (Gaudron, Gummow and Hayne JJ); Lange [1997] HCA 25; (1997) 189 CLR 520, 563–7 (per curiam); Pfeiffer [2000] HCA 36; (2000) 203 CLR 503, 514, 518 (Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ); Mewett (1997) 191 CLR 471, 524–5 (Gaudron J).
[123] Ruhani [2005] HCA 42; (2005) 219 ALR 199, [189]–[191] (Kirby J); Northern Territory v GPAO (1999) 196 CLR 553, 605 (Gaudron J) ('GPAO'); see also Re Governor, Goulburn Correctional Centre; Ex parte Eastman (1999) 200 CLR 322, 341 (Gaudron), 356, 375 (Kirby J) ('Eastman'); cf McDonald, above n 121, 70.
[124] Capital TV & Appliances Pty Ltd v Falconer [1971] HCA 10; (1971) 125 CLR 591 ('Falconer'); cf Eastman (1999) 200 CLR 322 (Gummow and Hayne JJ).
[125] Falconer [1971] HCA 10; (1971) 125 CLR 591, cited with approval in GPAO (1999) 196 CLR 553, 621 (McHugh and Callinan JJ); Eastman (1999) 200 CLR 322; see also Porter v The King; Ex parte Yee [1926] HCA 9; (1926) 37 CLR 432, 438 (Knox CJ and Gavan Duffy J), 442–3 (Isaacs J), 449–50 (Starke J) ('Porter'); cf Eastman (1999) 200 CLR 322, 356 (Kirby J).
[126] See, eg, Eastman (1999) 200 CLR 322, 346 (Gummow and Hayne JJ).
[127] Peter Hanks, Patrick Keyzer and Jennifer Clarke, Australian Constitutional Law: Materials and Commentary (7th ed, 2004) ch 12, 1097; Ruhani [2005] HCA 42; (2005) 219 ALR 199, [176]–[177], [181], [184] (Kirby J); Porter [1926] HCA 9; (1926) 37 CLR 432, 440–1 (Isaacs J), 446 (Higgins J); contra 438 (Knox CJ and Gavan Duffy J).
[128] See, eg, Ruhani [2005] HCA 42; (2005) 219 ALR 199, [194] (Kirby J); see also Tom Pauling, 'The Constitutional Differences between Territories and States' (2000) 20 Australian Bar Review 187, 190–2; cf, Eastman (1999) 200 CLR 322, 377 (Kirby J); Zines, above n 83, 177; cf McDonald, above n 121, 77–8, 80–1.
[129] Boilermakers' Case [1956] HCA 10; (1956) 94 CLR 254, 275 (Dixon CJ, McTiernan, Fullagar and Kitto JJ).
[130] Porter [1926] HCA 9; (1926) 37 CLR 432, 438 (Knox CJ and Gavan Duffy J); Re Wakim; Ex parte McNally (1999) 198 CLR 511; see also Ruhani [2005] HCA 42; (2005) 219 ALR 199, [5] (Gleeson CJ); Boilermakers' Case [1956] HCA 10; (1956) 94 CLR 254, 270 (Dixon CJ, McTiernan, Fullagar and Kitto JJ); Commonwealth v Queensland [1975] HCA 43; (1975) 134 CLR 298, 328 (Jacobs J).
[131] Eastman (1999) 200 CLR 322, 337 (Gaudron J); Ruhani [2005] HCA 42; (2005) 219 ALR 199, [119] (Gummow and Hayne JJ); Gould v Brown (1998) 193 CLR 346, 426–8 (McHugh J).
[132] See, eg, Lamshed v Lake [1958] HCA 14; (1958) 99 CLR 132, 144–5 (Dixon CJ), discussing Australian National Airways Pty Ltd v Commonwealth [1945] HCA 41; (1945) 71 CLR 29. The majority in Lamshed rejected the broad proposition expounded in R v Bernasconi [1915] HCA 13; (1915) 19 CLR 629. See also Pauling, above n 128.
[133] See, eg, Kruger v Commonwealth [1997] HCA 27; (1997) 190 CLR 1, 166 (Gummow J); the absence of these words was regarded as immaterial in Newcrest Mining (WA) Ltd v Commonwealth [1997] HCA 38; (1997) 190 CLR 513, 653 (Kirby J); see also Eastman (1999) 200 CLR 322, 373 (Kirby J); Australian Law Reform Commission, above n 11, 621; Pauling, above n 128, 189–90; contra Porter [1926] HCA 9; (1926) 37 CLR 432, 446 (Higgins J); cf Newcrest Mining (WA) Ltd v Commonwealth [1997] HCA 38; (1997) 190 CLR 513, 580–1, 585 (McHugh J), 606–7 (Gummow J).
[134] GPAO (1999) 196 CLR 553, 602 (Gaudron J); Gould v Brown (1998) 193 CLR 346, 426–8 (McHugh J); Spratt v Hermes [1965] HCA 66; (1965) 114 CLR 226, 274 (Windeyer J); see also Eastman (1999) 200 CLR 322, 337 (Gaudron J), 354 (Kirby J); Australian Law Reform Commission, above n 11, 626–7; Pauling, above n 128.
[135] Spratt v Hermes [1965] HCA 66; (1965) 114 CLR 226; Falconer [1971] HCA 10; (1971) 125 CLR 591; Eastman (1999) 200 CLR 322.
[136] Australian Capital Television Pty Ltd v Commonwealth [1992] HCA 45; (1992) 177 CLR 106.
[137] Capital Duplicators Pty Ltd v Australian Capital Territory [1992] HCA 51; (1992) 177 CLR 248, 268–84 (Brennan, Deane, Toohey and Gaudron JJ); see also Kruger v Commonwealth [1997] HCA 27; (1990) 190 CLR 1 (which doubted that section 116 applied to the Territories); R v Bernasconi [1915] HCA 13; (1915) 19 CLR 629 (s 80 does not apply); Newcrest Mining (WA) Ltd v Commonwealth [1997] HCA 38; (1997) 190 CLR 513 (s 51(xxxi) applies to Territories); contra Teori Tau v Commonwealth [1969] HCA 62; (1969) 119 CLR 564; see also Australian Constitution ss 92, 117; ACT Bill of Rights Consultative Committee, above n 1, [2.46]–[2.51]; not subject to s 55 of the Constitution in Buchanan v Commonwealth [1913] HCA 29; (1913) 16 CLR 315; the ability to provide for Territory representatives in the federal Parliament is not affected by Ch I: Western Australia v Commonwealth [1975] HCA 46; (1975) 134 CLR 201; Queensland v Commonwealth [1977] HCA 60; (1977) 139 CLR 585.
[138] Eastman (1999) 200 CLR 322, 331 (Gleeson CJ, McHugh and Callinan JJ).
[139] [1915] HCA 13; (1915) 19 CLR 629.
[140] [1965] HCA 66; (1965) 114 CLR 226.
[141] See, eg, Spratt v Hermes [1965] HCA 66; (1965) 114 CLR 226, 243–8 (Barwick CJ).
[142] (1999) 200 CLR 322.
[143] Hanks, Keyzer and Clarke, above n 127, 1054.
[144] Australian Capital Territory (Self-Government) Act 1988 (Cth).
[145] See, eg, Eastman (1999) 200 CLR 322, 332 (Gleeson CJ, McHugh and Callinan JJ).
[146] See, eg, Porter [1926] HCA 9; (1926) 37 CLR 432, 441, 443 (Isaacs J), 448 (Rich J); Buchanan v Commonwealth [1913] HCA 29; (1913) 16 CLR 315; Teori Tau v Commonwealth [1969] HCA 62; (1969) 119 CLR 564.
[147] Boilermakers' Case [1956] HCA 10; (1956) 94 CLR 254, 290 (Dixon CJ, McTiernan, Fullagar, Kitto JJ); GPAO (1999) 196 CLR 553, 621–3 (McHugh and Callinan JJ); A-G (Cth) v The Queen [1957] AC 288, 320; Gould v Brown (1998) 193 CLR 346, 427 (McHugh J); cf Ruhani [2005] HCA 42; (2005) 219 ALR 199 [4] (Gleeson CJ).
[148] See, eg, Capital Duplicators Pty Ltd v Australian Capital Territory [1992] HCA 51; (1992) 177 CLR 248, 272, (Brennan, Deane and Toohey JJ); see also Lamshed v Lake [1958] HCA 14; (1958) 99 CLR 132; Berwick Ltd v Grey [1976] HCA 12; (1976) 133 CLR 603; Kruger v Commonwealth [1997] HCA 27; (1997) 190 CLR 1; Newcrest Mining (WA) Ltd v Commonwealth [1997] HCA 38; (1997) 190 CLR 513; Spratt v Hermes [1965] HCA 66; (1965) 114 CLR 226, 270 (Menzies J); Pauling, above n 128.
[149] See, eg, Eastman (1999) 200 CLR 322, 349 (Gummow and Hayne JJ), 359 (Kirby J).
[150] Ibid 382 (Kirby J); see GPAO (1999) 196 CLR 553, 618–21 (McHugh and Callinan JJ); see also Spratt v Hermes [1965] HCA 66; (1965) 114 CLR 226, 244 (Barwick CJ); Falconer [1971] HCA 10; (1971) 125 CLR 591, 605–6 (Menzies J); GPAO (1999) 196 CLR 553, 591 (Gleeson CJ and Gummow J).
[151] See, eg, Spratt v Hermes [1965] HCA 66; (1965) 114 CLR 226, 257 (Kitto J), 265 (Menzies J); cf Eastman (1999) 200 CLR 322, 340 (Gaudron J), 354–6 (Kirby J); Falconer [1971] HCA 10; (1971) 125 CLR 591, 598–600 (Barwick CJ); contra Gould v Brown (1998) 193 CLR 346, 427 (McHugh J).
[152] Eastman (1999) 200 CLR 322, 331 (Gleeson CJ, McHugh and Callinan JJ).
[153] See, eg, Nauru (High Court Appeals) Act 1976 (Cth).
[154] See, eg, Croome [1997] HCA 5; (1997) 191 CLR 119, 136 (Gaudron, McHugh and Gummow JJ); Gould v Brown (1998) 193 CLR 346, 421 (McHugh J); cf Ruhani [2005] HCA 42; (2005) 219 ALR 199 [5] (Gleeson CJ).
[155] Cf Ruhani [2005] HCA 42; (2005) 219 ALR 199, [176]–[177] (Kirby J).
[156] Ibid [148]–[172] (Kirby J).
[157] Ibid; see also Australian Law Reform Commission, above n 11, 92.
[158] Ruhani [2005] HCA 42; (2005) 219 ALR 199, [10] (Gleeson CJ), [108] (Gummow and Hayne JJ); cf [172] (Kirby J), [281]–[286] (Callinan and Heydon JJ), [51] (McHugh J).
[159] Gould v Brown (1998) 193 CLR 346, 422 (McHugh J); Re Wakim; Ex parte McNally (1999) 198 CLR 511, 545–6 (Gleeson CJ), 558–9 (McHugh J), 575 (Gummow and Hayne JJ, Gaudron J agreeing); Zines, above n 83; Porter [1926] HCA 9; (1926) 37 CLR 432, 447 (Higgins J).
[160] Capital Duplicators Pty Ltd v Australian Capital Territory [1992] HCA 51; (1992) 177 CLR 248; Falconer [1971] HCA 10; (1971) 125 CLR 591; cf GPAO (1999) 196 CLR 553; Hanks, Keyzer and Clarke, above n 127, 1093; cf the position of common law and existing legislation operating in the ACT by virtue of the Seat of Government Acceptance Act 1909 (Cth) and the Seat of Government (Administration) Act 1910 (Cth), summarised in O'Neill v Mann [2000] FCA 1180; (2000) 101 FCR 160, 167–9.
[161] Cf Ruhani [2005] HCA 42; (2005) 219 ALR 199, [39] (McHugh J).
[162] Australian Constitution s 73(ii).
[163] But see Judiciary Act 1903 (Cth) ss 34, 35, 35A.
[164] In re Judiciary and Navigation Acts [1921] HCA 20; (1921) 29 CLR 257, 265; Commonwealth v Queensland [1975] HCA 43; (1975) 134 CLR 298, 327 (Jacobs J).
[165] In re Judiciary and Navigation Acts [1921] HCA 20; (1921) 29 CLR 257, 266.
[166] See, eg, Mellifont v A-G (Qld) [1991] HCA 53; (1991) 173 CLR 289 ('Mellifont'), discussed in Zines, above n 83, 20.
[167] But see McDonald, above n 121, 69.
[168] Refer to Part Two.
[169] Judiciary Act 1903 (Cth) s 35AA.
[170] Kable [1996] HCA 24; (1996) 189 CLR 51, 136–7 (Gummow J); see also Commonwealth v Queensland [1975] HCA 43; (1975) 134 CLR 298, 325 (Jacobs J) (discussion of Minister for Works (Western Australia) v Civil and Civil Pty Ltd [1967] HCA 18; (1967) 116 CLR 273, 277).
[171] See, eg, Abebe [1999] HCA 14; (1999) 197 CLR 510, 555 (Gaudron J).
[172] Kable [1996] HCA 24; (1996) 189 CLR 51, 134 (Gummow J).
[173] Ibid 106 (Gaudron J).
[174] Ibid 103 (Gaudron J).
[176] Boilermakers' Case [1956] HCA 10; (1956) 94 CLR 254.
[177] Quick and Garran, above n 87, 740; cf Ruhani [2005] HCA 42; (2005) 219 ALR 199, [163]–[172] (Kirby J), [38] (McHugh J); cf Eastman v The Queen [2000] HCA 29; (2000) 203 CLR 1, 32–5, 40–1 (McHugh J); R v Commonwealth Court of Conciliation & Arbitration; Ex parte Brisbane Tramways Co Ltd (No 1) [1914] HCA 15; (1914) 18 CLR 54, 59–62 (Griffith CJ).
[178] See, eg, Ruhani [2005] HCA 42; (2005) 219 ALR 199, [79] (McHugh J).
[179] [1921] HCA 20; (1921) 29 CLR 257.
[180] [1996] HCA 24; (1996) 189 CLR 51.
[181] [1906] HCA 64; (1906) 4 CLR 297.
[182] See above nn 67–70 and accompanying text.
[183] Holmes [1906] HCA 64; (1906) 4 CLR 297, 304 (Griffith J).
[184] See also Webb [1939] HCA 8; (1939) 61 CLR 313, 321–2 (Latham CJ).
[185] See, eg, Lipohar (1999) 200 CLR 485, 500 (Gleeson CJ), 505–6 (Gaudron, Gummow and Hayne JJ); Lange [1997] HCA 25; (1997) 189 CLR 520, 563–7 (per curiam); Pfeiffer [2000] HCA 36; (2000) 203 CLR 503, 514, 518 (Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ); Mewett (1997) 191 CLR 471, 524–5 (Gaudron J).
[186] Mellifont [1991] HCA 53; (1991) 173 CLR 289, 299–300 (Mason CJ, Deane, Dawson, Gaudron and McHugh JJ); Saffron v The Queen [1953] HCA 51; (1953) 88 CLR 523, 527–8 (Dixon CJ); Commonwealth v Brisbane Milling Co Ltd [1916] HCA 39; (1916) 21 CLR 559, 577–80 (Higgins J); Webb [1939] HCA 8; (1939) 61 CLR 313, 319–20 (Latham CJ), 330 (Evatt J) (discussing Smith v Mann [1932] HCA 30; (1932) 47 CLR 426), 335 (McTiernan J); Victorian Railways Commissioner v McCartney and Nicholson [1935] HCA 28; (1935) 52 CLR 383; Medical Board of Victoria v Meyer [1937] HCA 47; (1937) 58 CLR 62.
[187] Fisher v Fisher [1986] HCA 61; (1986) 161 CLR 438, 450 (Gibbs CJ, Wilson J agreeing); Webb [1939] HCA 8; (1939) 61 CLR 313, 319–21 (Latham CJ), 326 (Dixon J), 335 (McTiernan J).
[188] Holmes [1906] HCA 64; (1906) 4 CLR 297; Webb [1939] HCA 8; (1939) 61 CLR 313, 319 (Latham CJ), 327–8 (Dixon J); cf Zines, above n 83, 20.
[189] Webb [1939] HCA 8; (1939) 61 CLR 313, 321 (Latham CJ), 322 (Rich J).
[190] Commonwealth v Brisbane Milling Co Ltd [1916] HCA 39; (1916) 21 CLR 559, 567 (Barton J), 577–80 (Higgins J); see also R v Snow [1915] HCA 90; (1915) 20 CLR 315, 355 (Higgins J).
[191] [1921] HCA 20; (1921) 29 CLR 257.
[192] Ibid 265.
[193] Ibid 266.
[194] Ibid 268, cf 275–6 (Higgins J).
[195] Ibid 268.
[196] Croome [1997] HCA 5; (1997) 191 CLR 119, 124–5 (Brennan CJ, Dawson and Toohey JJ) (emphasis added). See also Commonwealth v Queensland [1975] HCA 43; (1975) 134 CLR 298, 327 (Jacobs J); see also Abebe [1999] HCA 14; (1999) 197 CLR 510, 524 (Gleeson CJ and McHugh J), cf 555 (Gaudron J), 561 (Gummow and Hayne JJ); see also South Australia v Victoria [1911] HCA 17; (1911) 12 CLR 667, 674–5 (Griffith CJ); Collins v Charles Marshall Pty Ltd [1955] HCA 44; (1955) 92 CLR 529, 541–2 (Dixon CJ, McTiernan, Wilson, Webb, Fullagar and Kitto JJ); Fencott v Muller (1983) 152 CLR 570, 591 (Gibbs CJ).
[197] Mellifont [1991] HCA 53; (1991) 173 CLR 289, 303 (Mason CJ, Deane, Dawson, Gaudron and McHugh JJ).
[198] See, eg, Croome [1997] HCA 5; (1997) 191 CLR 119.
[199] Ibid.
[200] Criminal Code Act 1924 (Tas) sch 1.
[201] The Court was in fact split 3:3 on the decision; the judgment in which the Chief Justice concurred will be referred to as the 'majority' judgment for convenience.
[202] Croome [1997] HCA 5; (1997) 191 CLR 119, 125 (Brennan CJ, Dawson and Toohey JJ).
[203] Ibid 126 (Brennan CJ, Dawson and Toohey JJ). The minority referred to the fact that the applicants were in breach of the criminal law of Tasmania (despite the DPP having stated in an affidavit that he would not prosecute Croome) and were also in breach of their lease agreement for their rental property, which had as a term of its contract that the applicants not engage in illegal activity on the premises: at 131–2 (Gaudron, McHugh and Gummow JJ).
[204] Ibid 136 (Gaudron, McHugh and Gummow JJ).
[205] Ibid.
[206] Cf Abebe [1999] HCA 14; (1999) 197 CLR 510; cf Gould v Brown (1998) 193 CLR 346, 431–2 (McHugh J).
[207] Zines states that 'The rigour of this rule preventing the conferring on federal courts of power to give advisory opinions has been mitigated by the broad scope which the High Court has given to the declaratory judgment remedy in public law litigation': above n 83, 15–16.
[208] See above nn 54–8 and accompanying text.
[209] Abebe [1999] HCA 14; (1999) 197 CLR 510, 571 (emphasis added).
[210] Croome [1997] HCA 5; (1997) 191 CLR 119, 127 (Brennan CJ, Dawson and Toohey JJ).
[211] Abebe [1999] HCA 14; (1999) 197 CLR 510, 528.
[212] [1790] EngR 55; [1703] 2 Ld Raym 938; (1703) 92 ER 126, 953 (Holt CJ); see also Victorian Human Rights Consultation Committee, Rights, Responsibilities and Respect, above n 45, 115.
[213] See above nn 87–92 and accompanying text.
[214] Rishworth, 'Civil Remedies for Breach of the Bill of Rights', above n 43, 811.
[215] Ruhani [2005] HCA 42; (2005) 219 ALR 199, [295] (Callinan and Heydon JJ); University of New South Wales v Moorhouse [1975] HCA 26; (1975) 133 CLR 1, 9–11 (Gibbs CJ); Forster v Jododex Australia Pty Ltd [1972] HCA 61; (1972) 127 CLR 421, 437–9 (Gibbs CJ).
[216] Contra Standing Committee on Legal Affairs, above n 7, 12.
[217] See, eg, Geoffrey Lindell, 'The Statutory Protection of Rights and Parliamentary Sovereignty: Guidance from the United Kingdom?' (2006) 17 Public Law Review 188, 204–7.
[218] Abebe [1999] HCA 14; (1999) 197 CLR 510, 525 (Gleeson and McHugh JJ), see also 589 (Kirby J).
[219] Cf ibid 556–7 (Gaudron J), 591 (Kirby J).
[220] Stack v Coast Securities (No 9) Pty Ltd [1983] HCA 36; (1983) 154 CLR 261, 278; Fencott v Muller (1983) 152 CLR 570; Abebe [1999] HCA 14; (1999) 197 CLR 510, 533–4 (Gleeson CJ and McHugh J); for a discussion of the extent of accrued jurisdiction see Zines, above n 83, 137–47.
[221] Abebe [1999] HCA 14; (1999) 197 CLR 510, 530 (Gleeson CJ and McHugh J).
[222] Stellios, above n 7.
[223] Abebe [1999] HCA 14; (1999) 197 CLR 510, 547 (Gaudron J); Boilermakers' Case [1956] HCA 10; (1956) 94 CLR 254, 271–2 (Dixon CJ, McTiernan, Fullagar and Kitto JJ).
[224] Kable [1996] HCA 24; (1996) 189 CLR 51, 78 (Dawson J).
[225] See above nn 54–8 and accompanying text.
[226] [1911] HCA 14; (1911) 12 CLR 221.
[227] Ibid 232 (Barton J).
[228] C A MacDonald Ltd v The South Australian Railways Commissioner [1911] HCA 14; (1911) 12 CLR 221; Webb [1939] HCA 8; (1939) 61 CLR 313, 319–20 (Latham CJ).
[229] C A MacDonald Ltd v The South Australian Railways Commissioner [1911] HCA 14; (1911) 12 CLR 221.
[230] Kable [1996] HCA 24; (1996) 189 CLR 51, 94–6 (Toohey J), 100, 104 (Gaudron J), 116–17 (McHugh J).
[231] Ibid 102–3 (Gaudron J), 112–14 (McHugh J), 137–9 (Gummow J), see also 479 (Kirby J); Gould v Brown (1998) 193 CLR 346.
[232] North Australian Aboriginal Legal Aid Service Inc v Bradley [2004] HCA 31; (2004) 218 CLR 146; see also Hanks, Keyzer and Clarke, above n 127, 1094.
[233] Cf Australian Law Reform Commission, above n 11, 620, 629–636; see also Stellios, above n 7, 36; Judiciary Act 1903 (Cth) ss 39A, 69B; Australian Capital Territory (Self-Government) Act 1988 (Cth) s 48A; contra Judiciary Act 1903 (Cth) s 68(2); see also McDonald, above n 121, 90–1.
[234] Kable [1996] HCA 24; (1996) 189 CLR 51, 95 (Toohey J) citing with approval Patrick Lane, The Australian Federal System (2nd ed, 1979) 446.
[235] See, eg, Kable [1996] HCA 24; (1996) 189 CLR 51, 101 (Gaudron J).
[236] See above nn 87–92 and accompanying text.
[237] Baxter v Commissioner of Taxation (NSW) [1907] HCA 76; (1907) 4 CLR 1087, 1142 (Isaacs J); see also Gould v Brown (1998) 193 CLR 346, 422 (McHugh J); Anderson v Eric Anderson Radio & TV Pty Ltd [1965] HCA 61; (1965) 114 CLR 20, 30 (Kitto J); Lorenzo v Carey [1921] HCA 58; (1921) 29 CLR 243, 252 (Knox CJ, Gavan Duffy, Power, Rich and Starke JJ); Hanks, Keyzer and Clarke, above n 127, 1092; GPAO (1999) 196 CLR 553, 589–90 (Gleeson CJ and Gummow J); Australian Law Reform Commission, above n 11, 89–91; Peter Nygh and Peter Butt (eds), Butterworths Concise Australian Legal Dictionary (2nd ed, 1998).
[238] See, eg, Agtrack v Hatfield [2005] HCA 38; (2005) 218 ALR 677, 683–4 (Gleeson CJ, McHugh, Gummow, Hayne and Heydon JJ).
[239] See, eg, Hume v Palmer [1926] HCA 50; (1926) 38 CLR 441, 451 (Isaacs J).
[240] Kable [1996] HCA 24; (1996) 189 CLR 51, 94 (Toohey J), see also 136 (Gummow J); see also Felton v Mulligan [1971] HCA 39; (1971) 124 CLR 367, 372–3 (Barwick CJ), 402–4 (Walsh J).
[241] The ACT is not a federal court within the meaning of s 71: Porter [1926] HCA 9; (1926) 37 CLR 432, 446 (Higgins J).
[242] See, eg, Gould v Brown (1998) 193 CLR 346, 402–3 (Gaudron J); Eastman (1999) 200 CLR 322, 338–9, 341 (Gaudron J), 347 (Gummow and Hayne JJ); cf Australian Law Reform Commission, above n 11, 101, 629–36; see also Stellios, above n 7, 34, 36; contra Judiciary Act 1903 (Cth) s 68(2); see also Zines, above n 83; McDonald, above n 121.
[243] See, eg, Australian Law Reform Commission, above n 11, 106; Pfeiffer [2000] HCA 36; (2000) 203 CLR 503; Gould v Brown (1998) 193 CLR 346, 402–3 (Gaudron J); GPAO (1999) 196 CLR 553, 604–5 (Gaudron J); Eastman (1999) 200 CLR 322, 339–40 (Gaudron J), 347–9 (Gummow, Hayne JJ); cf Stack v Coast Securities (No 9) Pty Ltd [1983] HCA 36; (1983) 154 CLR 261.
[244] Australian Constitution s 71.
[245] North Australian Aboriginal Legal Aid Service Inc v Bradley [2004] HCA 31; (2004) 218 CLR 146, 162 (McHugh, Gummow, Kirby, Hayne, Callinan and Heydon JJ) quoting Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337, 363 (Gaudron J); following GPAO (1999) 196 CLR 553, 603–4 (Gaudron J) and Eastman (1999) 200 CLR 322, 336–40 (Gaudron J), 348 (Gummow and Hayne JJ), cf 354–6 (Kirby J).
[246] North Australian Aboriginal Legal Aid Service Inc v Bradley [2004] HCA 31; (2004) 218 CLR 146, 162–3 (McHugh, Gummow, Kirby, Hayne, Callinan and Heydon JJ) quoting Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337, 363 (Gaudron J).
[247] Kable [1996] HCA 24; (1996) 189 CLR 51, 104 (Gaudron J), 116, 118, 121 (McHugh J).
[248] Ibid 98 (Toohey J), 107 (Gaudron J), 117 (McHugh J), 132 (Gummow J); see also Wilson [1996] HCA 18; (1996) 189 CLR 1, 11, 14 (Brennan CJ, Dawson, Toohey, McHugh and Gummow JJ).
[249] [2006] HCA 44; (2006) 228 CLR 45 ('Forge').
[250] Ibid 75–6 (Gummow, Hayne and Crennan JJ), see also 121–2 (Kirby J).
[251] Fardon v A-G (Qld) [2004] HCA 46; (2004) 223 CLR 575 ('Fardon').
[252] Ibid 601–2 (McHugh J).
[253] Kable [1996] HCA 24; (1996) 189 CLR 51, 134 (Gummow J); John Williams, 'Inter-Constitutional Relations' in Clement Macintyre and John Williams (eds), Peace, Order and Good Government (2003) 178.
[254] Forge [2006] HCA 44; (2006) 228 CLR 45, 125 (Kirby J). The Kable principle was used by the Queensland Court of Appeal to invalidate a legislative provision in Re Criminal Proceeds Confiscation Act 2002 [2003] QCA 249; [2004] 1 Qd R 40
[255] North Australian Aboriginal Legal Aid Service Inc v Bradley [2004] HCA 31; (2004) 218 CLR 146, 162 (McHugh, Gummow, Kirby, Hayne, Callinan and Heydon JJ), referring to John Fairfax Publications Pty Ltd v A-G (NSW) [2000] NSWCA 198; (2000) 181 ALR 694, 698 (Spigelman CJ); cf Hadba v The Queen [2004] ACTSC 62 (Unreported, Higgins CJ, Crispin and Gyles JJ, 27 July 2004), [15] (Higgins CJ and Crispin J); SI bhnf CC v KS bhnf IS [2005] ACTSC 125 (Unreported, Higgins CJ, 2 December 2005), [103]–[107].
[256] See, eg, Fardon [2004] HCA 46; (2004) 223 CLR 575, 601–2 (McHugh J). In Forge [2006] HCA 44; (2006) 228 CLR 45, the Kable principle was considered in the context of the validity of a provision enabling the appointment of acting judges to the Supreme Court of New South Wales.
[257] See above nn 170–1 and accompanying text; see, eg, Kable [1996] HCA 24; (1996) 189 CLR 51, 136–7 (Gummow J); Commonwealth v Queensland [1975] HCA 43; (1975) 134 CLR 298, 325 (Jacobs J); Gould v Brown (1998) 193 CLR 346, 421 (McHugh J).
[258] Cf Gould v Brown (1998) 193 CLR 346, 420–1 (McHugh J)
[259] See, eg, North Australian Aboriginal Legal Aid Service Inc v Bradley [2004] HCA 31; (2004) 218 CLR 146; Fardon [2004] HCA 46; (2004) 223 CLR 575, 591 (Gleeson CJ).
[260] Kable [1996] HCA 24; (1996) 189 CLR 51, 98 (Toohey J), 108 (Gaudron J), 119, 122 (McHugh J), 134 (Gummow J); Forge [2006] HCA 44; (2006) 228 CLR 45, 76 (Gummow, Hayne and Crennan JJ).
[261] Kable [1996] HCA 24; (1996) 189 CLR 51, 133 (Gummow J) quoting Mistretta v United States, [1989] USSC 9; 488 US 361, 407 (1989); Grollo v Palmer [1995] HCA 26; (1995) 184 CLR 348, 377–8 (McHugh J), 392 (Gummow J); see also Wilson [1996] HCA 18; (1996) 189 CLR 1, 8 (Brennan CJ, Dawson, Toohey, McHugh and Gummow JJ); Fardon [2004] HCA 46; (2004) 223 CLR 575, 615 (Gummow J), 647 (Hayne J, agreeing with Gummow J).
[262] See, eg, Wilson [1996] HCA 18; (1996) 189 CLR 1, 10–16 (Brennan CJ, Dawson, Toohey, McHugh and Gummow JJ); Grollo v Palmer [1995] HCA 26; (1995) 184 CLR 348, 377–8 (McHugh J).
[263] Contra Standing Committee on Legal Affairs, above n 7, 9.
[264] [1996] HCA 18; (1996) 189 CLR 1, 17 (Brennan CJ, Dawson, Toohey, McHugh and Gummow JJ); cf Fardon [2004] HCA 46; (2004) 223 CLR 575, 621 (Gummow J).
[265] Kable [1996] HCA 24; (1996) 189 CLR 51, 117 (McHugh J).
[266] See Fardon [2004] HCA 46; (2004) 223 CLR 575, 591–3 (Gleeson CJ), 598 (McHugh J), 617–18, 621 (Gummow J), 647 (Hayne J, agreeing with Gummow J)), 653, 655–6 (Callinan and Heydon JJ).
[267] Cf Forge [2006] HCA 44; (2006) 228 CLR 45, 68–9 (Gleeson CJ), 146–8 (Heydon J) where safeguards to protecting judicial independence and impartiality were considered relevant in evaluating the validity of the legislation.
[268] See, eg, Pappas v Noble [2006] ACTSC 39 (Unreported, Master Harper, 27 April 2006) [17]–[18]; cf Fardon [2004] HCA 46; (2004) 223 CLR 575, 592 (Gleeson CJ).
[269] Wilson [1996] HCA 18; (1996) 189 CLR 1, 17 (Brennan CJ, Dawson, Toohey, McHugh and Gummow JJ), 24 (Gaudron J).
[270] Fardon [2004] HCA 46; (2004) 223 CLR 575, 617 (Gummow J), 647 (Hayne J, agreeing with Gummow J).
[271] Wilson [1996] HCA 18; (1996) 189 CLR 1, 25 (Gaudron J).
[272] Standing Committee on Legal Affairs, above n 7, 5–6.
[273] Ibid; see also above nn 99–102 and accompanying text.
[274] See, eg, Fardon [2004] HCA 46; (2004) 223 CLR 575; see also Williams, above n 253, 178.
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