Introduction to Australian Public Law. [5 ed.] 9780409342604, 0409342602

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Introduction to Australian Public Law 5TH EDITION

David Clark BA (Hons), LLB (Otago), D Phil (Oxon) Professor, School of Law, Flinders University

LexisNexis Butterworths Australia 2016

AUSTRALIA

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National Library of Australia Cataloguing-in-Publication entry Author: Title: Edition: ISBN: Notes: Subjects: Dewey Number:

Clark, David. Introduction to Australian Public Law. 5th edition. 9780409342598 (pbk). 9780409342604 (ebk). Includes index. Public law — Australia. 342.94.

© 2016 Reed International Books Australia Pty Limited trading as LexisNexis. First edition, 2003; second edition, 2007; third edition, 2010; fourth edition, 2013 (reprinted, 2015). This book is copyright. Except as permitted under the Copyright Act 1968 (Cth), no part of this publication may be reproduced by any process, electronic or otherwise, without the specific written permission of the copyright owner. Neither may information be stored electronically in any form whatsoever without such permission. Inquiries should be addressed to the publishers. Typeset in Gotham and IowanOldSt BT. Printed in China. Visit LexisNexis Butterworths at www.lexisnexis.com.au

Preface This fifth edition of Introduction to Australian Public Law keeps the structure and dimensions of the previous edition, but includes several important substantive changes. These additions are: problem questions added to Chapters 2, 3, 5, 6, 7, 8, 9, 12 and 13; material on co-operative federalism in Chapter 1; details of the new stolen generations compensation fund introduced in 2015 in South Australia in Chapter 2; the rule of law implications of the incident involving Jonny Depp’s dogs in Chapter 3; an account of the contempt cases involving Peter Slipper and Gordon Nuttall in Chapter 6; the question of vacation of a parliamentary seat in Chapter 7, with comments on the Billy Gordon incident in Queensland and that of Bernard Finnigan in South Australia; new material in Chapter 11 on the office of the Auditor-General, a longstanding and crucial public office that ensures financial accountability in the use of public money; and a section on sovereign state immunity in Chapter 13. I would like to thank the team at LexisNexis Butterworths in Sydney for their great support, especially my editor Georgia O’Neill, whose energy and precision were what every author needs in the home stretch. At Flinders University, law librarian Heidi Savilla met my myriad requests with her usual good humor and efficiency, as did other members of her staff. Finally, I want to thank my wife, Kay, who tolerated with good cheer the pressing demands

of authorship, especially over the Christmas holiday period, when much work had to be done. David Clark 1 January 2016

Table of Cases References are to paragraph numbers

A A v Hayden (No 2) (1984) 156 CLR 532; 56 ALR 82 …. 1.34, 3.9, 3.19, 3.20, 4.3, 8.43 A Raptis & Son v South Australia (1977) 138 CLR 346; 15 ALR 223 …. 5.53 Aboriginal and Torres Strait Islander Commission v Commonwealth Ombudsman (1995) 63 FCR 163; 134 ALR 238 …. 11.26 Aboriginal Legal Service of Western Australia Inc v State of Western Australia (1993) 9 WAR 297 …. 6.5 Acraman v Herniman (1851) 16 QB 998; 117 ER 1164 …. 5.23 Adler v District Court of New South Wales (1990) 19 NSWLR 317 …. 3.4, 12.33, 12.34 Ahmed v H M Treasury [2010] 2 AC 534 …. 10.10 Aid/Watch Inc v Commissioner of Taxation (2010) 241 CLR 539; 272 ALR 417 …. 1.20 Ainsworth v Ombudsman (1988) 17 NSWLR 276 …. 11.28, 11.31 Albarran v Members of the Companies Auditors and Liquidators Disciplinary Board; Gould v Magarey (2007) 231 CLR 350; 234 ALR 618 …. 4.24 Alberta Ombudsman Act, Re (1970) 10 DLR (3d) 47 …. 11.10 Alice Springs Town Council v Watts (1982) 5 ALD 150; 18 NTR 1 …. 11.32 Al-Kateb v Godwin (2004) 219 CLR 562; 208 ALR 124 …. 3.18 Allders International Pty Ltd v Commissioner of State Revenue (Victoria) (1996) 186 CLR 630; 140 ALR 189 …. 5.45

Amalgamated Society of Engineers v Adelaide Steamship Co Ltd (1920) 28 CLR 129; 26 ALR 337 …. 4.3 Amann Aviation Pty Ltd v Commonwealth (1988) 19 FCR 223; 81 ALR 710 …. 6.17, 6.26 Anti-Discrimination Commissioner v Acting Ombudsman (2003) 11 Tas R 343 …. 11.17, 11.26, 11.30 Antunovic v Dawson (2010) 30 VR 355 …. 12.5 Applicant NAFF of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 221 CLR 1; 211 ALR 660 …. 13.24 Arena v Nader (1997) 42 NSWLR 427 …. 6.37 Armon v Katz [1976] 2 GLR 115 …. 13.41 Armstrong v Budd [1969] 1 NSWR 649; (1969) 71 SR (NSW) 386 …. 6.10 Article 36 of the Constitution and Bobby Eoe, Re [1988] SPLR 220 …. 6.13 Assistant Commissioner Condon v Pompano Pty Ltd (2013) 252 CLR 38; 87 ALJR 458 …. 5.8 Attorney-General v Brown (1847) 1 Legge 312 …. 2.15 — v De Keyser’s Royal Hotel Ltd [1920] AC 508 …. 8.44, 8.45, 8.48 — v Lawrence [2014] 2 Qd R 504 …. 4.32 — v Ngati Apa [2003] 3 NZLR 643 …. 2.5 — v Williams (1913) 13 SR (NSW) 295 …. 8.21 Attorney-General (Cth) v Alinta Ltd (2008) 233 CLR 542; 242 ALR 1 …. 4.22 — v MacFarlane [1972] ALR 619; (1971) 18 FLR 150 …. 6.40 — v R (1957) 95 CLR 529; [1957] ALR 489 …. 4.45 Attorney-General (Cth); Ex rel McKinlay v Commonwealth (1975) 135 CLR 1; 7 ALR 593 …. 7.31

Attorney-General (ex rel Schmidt) v District Council of West Torrens [1926] SASR 5 …. 11.39 Attorney-General for Canada v Attorney-General for Ontario [1937] AC 326 …. 13.13 Attorney-General (NSW) v MacPherson (1870) LR 3 PC 268 …. 6.31 — v Quin (1990) 170 CLR 1; 93 ALR 1 …. 9.31, 10.23 — v Trethowan (1931) 44 CLR 394; [1931] ALR 101 …. 5.25 Attorney-General (Qld) v Francis (2008) 250 ALR 555 …. 4.43 — v Gibbon (1887) 12 App Cas 442 …. 7.27 Attorney-General (Vic) (Ex rel Dale) v Commonwealth (1945) 71 CLR 237; [1945] ALR 435 …. 10.29 Attorney-General (WA) v Marquet (2003) 217 CLR 545; 202 ALR 233 …. 5.28, 8.30 Austin v Commonwealth of Australia (2003) 215 CLR 185; 195 ALR 321 …. 9.34 Australian Alliance Assurance Co Ltd v John Goodwyn, The Insurance Commissioner [1916] St R Qd 225 …. 8.72 Australian Broadcasting Corporation v Chatterton (1986) 46 SASR 1 …. 6.25 Australian Capital Television Pty Ltd v Commonwealth (No 2) (1992) 177 CLR 106; 108 ALR 577 …. 4.10, 7.31, 7.72, 12.54 Australian Communist Party v Commonwealth (Communist Party case) (1951) 83 CLR 1; [1951] ALR 129 …. 3.17, 10.27, 10.32 Australian Competition and Consumer Commission v Malaysian Airline System Berhad (2010) 271 ALR 91; [2010] FCA 757 …. 13.47 Australian Federation of Islamic Councils v Westpac (1988) 17 NSWLR 623 …. 13.34

Australian International Islamic College Board Inc IA 30976 v Kingdom of Saudi Arabia [2014] 2 Qd R 1; (2013) 298 ALR 655 …. 13.48 Australian National Airways Pty Ltd & Guinea Airways Ltd v Commonwealth (1945) 71 CLR 29; [1946] ALR 1 …. 1.2, 1.3, 5.2

B Baker v Carr 369 US 186 (1962) …. 7.31 — v Liberal Party of Australia (SA Division) (1997) 68 SASR 366 …. 7.34 — v R (2004) 223 CLR 513; 210 ALR 1 …. 4.39 Baker’s Election, Re; Ex parte Clemente [1965] Tas SR 152 …. 7.66 Baldwin v Everingham [1993] 1 Qd R 10 …. 7.34 Barber v State of Victoria (No 2) [2013] VSC 71 …. 6.17 Bare v IBAC [2015] VSCA 197 …. 1.20 Barnwell v Attorney-General [1994] 3 LRC 30 …. 9.26 Barry R Liggins Pty Ltd v Comptroller-General of Customs (1991) 32 FCR 112; 103 ALR 565 …. 13.28 Barton v Commonwealth (1974) 131 CLR 477; 3 ALR 70 …. 8.44, 8.45 Beitzel v Crabb [1992] 2 VR 121 …. 6.25, 6.27 Berrill’s Petition, Re (1976) 134 CLR 470; 13 ALR 301 …. 7.50 Bird v Volker [1995] FCA 228 …. 9.43 Bluett v Fadden (1956) SR (NSW) 254 …. 13.13 Blunden v Commonwealth (2003) 218 CLR 330; 203 ALR 189 …. 13.45 Bonner (dec’d), Re [1963] Qd R 488 …. 8.37, 8.40 Booth v Dillon (No 1) [1976] VR 291 …. 11.20, 11.23 — v — (No 2) [1976] VR 434 …. 11.21, 11.23

Botany Council v Ombudsman (1995) 37 NSWLR 357 …. 11.27 BP Australia Ltd v Amann Aviation Pty Ltd (1996) 62 FCR 451; 137 ALR 447 …. 1.30 Brackstone v Police [1999] SASC 35 …. 5.39 Bradley v Commonwealth (1973) 128 CLR 557; 1 ALR 241 …. 13.14 Brandy v Human Rights and Equal Opportunity Commission (1995) 183 CLR 245; 127 ALR 1 …. 4.30 Brannigan v Commonwealth of Australia (2000) 110 FCR 566 …. 11.17 Bray v Milera [1935] SASR 210 …. 12.14 Breavington v Godleman (1988) 169 CLR 41; 80 ALR 362 …. 5.50 Breen v Williams (1996) 186 CLR 71; 138 ALR 259 …. 1.11 Brett Goyne and Australian National Audit Office [2015] AICmr 9 …. 11.39 Bridge v Bowen (1916) 21 CLR 582 …. 7.77 British American Tobacco Australia Ltd v Secretary, Department of Health and Aging (2011) 195 FCR 123; 281 ALR 75 …. 6.27 British Broadcasting Corporation v Johns [1965] 1 Ch 32 …. 8.36 British Coal Corporation v R [1935] AC 500 …. 5.20 Broken Hill South Limited v Deputy Commissioner of Taxation (NSW) (1937) 56 CLR 337; [1937] ALR 221 …. 12.33 Brown v West (1990) 169 CLR 195; 91 ALR 197 …. 8.45 Browne v Cowley (1895) 6 QLJ 254 …. 6.11 Bruce v Cole (1998) 45 NSWLR 163 …. 9.5, 9.30 Bruton v Estate Agents Licensing Authority [1996] 2 VR 274 …. 6.5, 6.27 Buchanan, Re (1964) 65 SR (NSW) 9 …. 3.32

Burdett v Abbott (1811) 14 East 1; 104 ER 501 …. 6.1 Burns v Ransley (1949) 79 CLR 101; [1949] ALR 817 …. 12.9

C Cachia v Hanes (1991) 23 NSWLR 304 …. 13.26 Cadia Holdings Pty Ltd v New South Wales (2010) 242 CLR 195; 269 ALR 204 …. 8.35, 8.73 Calder v Attorney-General of British Columbia (1969) 8 DLR (3d) 59 …. 2.5 Caltabiano v Electoral Commission of Queensland (No 4) [2009] QSC 294; [2010] 2 Qd R 1 …. 7.58 Cameron v Becker (1995) 64 SASR 238 …. 7.71 — v Hogan (1934) 51 CLR 358; [1934] ALR 298 …. 7.33, 7.34 Campbell’s Cash and Carry Pty Ltd v Fostif Pty Ltd (2006) 229 CLR 386; 229 ALR 58 …. 4.28 Capital Duplicators Pty Ltd v Australian Capital Territory (1992) 177 CLR 248; 109 ALR 1 …. 4.14, 5.18 Carbone v Police (1997) 68 SASR 200 …. 5.21, 12.35 — v South Australian Police (1995) 126 FLR 1 …. 12.35 Carter v Attorney-General for the State of Queensland [2012] QSC 234 …. 8.40 Chanter v Blackwood (No 2) (1904) 1 CLR 121 …. 7.77 Cheatle v R (1993) 177 CLR 541; 116 ALR 1 …. 1.29, 4.22, 5.44 Cheesman v Waters and Attorney-General (Cth) (1997) 77 FCR 221; 148 ALR 21 …. 4.36 Cheney v Conn [1968] 1 All ER 779 …. 13.2, 10.11

Chief Commissioner of Stamp Duties (NSW) v Paliflex Pty Ltd (1999) 152 FLR 276 …. 5.46 Chow Hung Ching v R (1948) 77 CLR 449; [1949] ALR 29 …. 13.6, 13.45 Chu Kheng Lim v Minister for Immigration, Local Government and Ethnic Affairs (1992) 176 CLR 1; 110 ALR 97 …. 4.26 Chung Chi Cheung v R (1937) 29 HKLR 22 …. 13.41 — v — [1939] AC 160 …. 13.7, 13.41, 13.45 Churchill Fisheries Export Pty Ltd v Director-General of Conservation [1990] VR 968 …. 3.12 City of Port Adelaide Enfield v Bingham (2014) 119 SASR 1 …. 11.31, 11.32 Clarke v Australian Labor Party (SA Branch) (1999) 74 SASR 109 …. 7.34 Clayton v Heffron (1960) 105 CLR 214; [1961] ALR 368 …. 5.23 Clipperton Island Case (1932) RIAA ii, 1105 …. 2.9 Cloete v R (1854) 8 Moo PCC 484; 14 ER 184 …. 9.26 Clydesdale v Hughes (1934) 51 CLR 518 …. 7.24 Coco v R (1994) 179 CLR 427; 120 ALR 415 …. 12.58 Coe v Commonwealth (1978) 18 ALR 592 …. 2.3, 2.19, 2.21 — v — (1979) 24 ALR 118; 53 ALJR 403 …. 2.3, 2.19, 5.40 — v Commonwealth of Australia [2001] NSWCA 36 …. 13.36 Coleman v Liberal Party of Australia, New South Wales Division (No 2) (2007) 212 FLR 271 …. 7.34 — v Power (2004) 220 CLR 1; 209 ALR 182 …. 10.29 Collingwood v Victoria (No 2) [1994] 1 VR 652 …. 4.31 Collins v Black [1995] 1 VR 409 …. 8.14

— v Paget (2004) 146 A Crim R 279 …. 13.18 — v State of South Australia (1999) 74 SASR 200 …. 13.18 Commissioner of State Revenue v OZ Minerals Ltd (2013) 46 WAR 156; 304 ALR 602 …. 5.53 Commonwealth v Cigamatic Pty Ltd (in liq) (1962) 108 CLR 372; [1963] ALR 304 …. 8.45 — v Colonial Combing, Spinning & Weaving Co Ltd (1922) 31 CLR 421; 29 ALR 138 …. 8.41, 8.72 — v Northern Land Council (1993) 176 CLR 604; 112 ALR 409 …. 8.19 Commonwealth of Australia v Northern Land Council (1991) 30 FCR 1; 103 ALR 267 …. 8.21 Connor v Sankey [1976] 2 NSWLR 570; (1976) 21 ALR 317 …. 3.5, 8.35 Constitution of Canada, Re (1981) 125 DLR (3d) 1 …. 8.59 Cooper v Attorney-General [1996] 3 NZLR 480 …. 8.58 Cooper v Stuart (1889) 14 App Cas 286 …. 2.11 Copello v Canada [2001] FC 1350 …. 13.42 Corporation of the City of Enfield v Development Assessment Commission (2000) 199 CLR 135; 169 ALR 400 …. 3.18 Corrigan v Parliamentary Criminal Justice Committee [2001] 2 Qd R 23 …. 6.27 Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374 …. 8.41 Cox v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 13 NTLR 219; 143 NRT 10 …. 12.5 CPCF v Minister for Immigration and Border Protection (2015) 143 ALD 443; 316 ALR 1; 89 ALJR 207 …. 8.44, 13.13

Crafter v DeLucia [1935] SASR 45 …. 12.58 — v Webster & Guscott (No 2) (1980) 23 SASR 321 …. 7.62, 7.77 Cram, Re; Ex parte Newcastle Wallsend Coal Co Pty Ltd (1987) 163 CLR 140; 72 ALR 173 …. 4.27 Criminal Justice Commission v Dick [2000] QSC 272 …. 6.27 — v Nationwide News Pty Ltd [1996] 2 Qd R 444 …. 6.28, 6.31, 6.38 Criminal Proceeds Confiscation Act 2002, Re [2004] 1 Qd R 40 …. 4.41 Crouch v Ozanne (1912) 12 CLR 539 …. 7.62 Cubillo v Commonwealth (2001) 112 FCR 455; 183 ALR 249 …. 2.37, 2.38 Curr v R (1972) 26 DLR (3d) 603 …. 12.33 Curtis v Minister of Defence [2002] 2 NZLR 744 …. 8.41

D D & R Henderson (Manufacturing) Pty Ltd v Collector of Customs (NSW) (1974) 48 ALJR 132 …. 13.28 D’Arcy v Myriad Genetics (2015) 325 ALR 100; [2015] HCA 35 …. 10.27 Davis v Commonwealth (1988) 166 CLR 79; 82 ALR 633 …. 8.35, 8.74 Day v R (1984) 153 CLR 475; 51 ALR 353 …. 1.34 Dent v Australian Electoral Commissioner (2008) 249 ALR 523; 104 ALD 1 …. 7.49 — v — (No 2) (2008) 172 FCR 31 …. 7.49 Dent and Daryl Wight as an Australian Electoral Officer, Re [2007] AATA 1985 …. 7.49 Department of Immigration and Ethnic Affairs v Ram (1996) 41 ALD 517 …. 13.23

Dietrich v R (1992) 177 CLR 292; 109 ALR 385 …. 12.33, 13.13 Director of Housing v Sudi [2011] 33 VR 548 …. 9.1 Director of Public Prosecutions (DPP) v Debono (2012) 222 A Crim R 194 …. 9.3 Director of Public Prosecutions (DPP) (NSW) v Kable (1994) 75 A Crim R 428 …. 4.32 Ditchburn v Divisional Returning Officer for Herbert (1999) 165 ALR 151 …. 7.28 Dohrmann v Attorney-General (Vic) [1995] 1 VR 274 …. 8.41 Douglas v Ninnes (1976) 14 SASR 377 …. 7.51 Douglas Shire Council v Queensland Ombudsman (2005) 141 LGERA 237 …. 11.30 Dow Jones & Co Inc v Gutnick (2002) 210 CLR 575; 194 ALR 433 …. 13.18 DPP Reference under s 693A of the Criminal Code: Y, Re (1998) 19 WAR 47 …. 11.25 Dr Bonham’s Case (1610) 8 Co Rep 113b; 77 ER 646 …. 10.10, 10.12 Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60; 24 ALR 577 …. 4.50 Drew v Attorney-General [2002] 3 LRC 380 …. 12.29 Duff v R (1979) 28 ALR 663; 39 FLR 315 …. 13.37 Duncan v New South Wales (2015) 318 ALR 375; 89 ALJR 462 …. 5.18 Durham Holdings Pty Ltd v New South Wales (2001) 205 CLR 399; 177 ALR 436 …. 3.26

E Easling v Rankine [2014] SADC 40 …. 6.27

Eastgate v Rozzoli (1990) 20 NSWLR 188 …. 6.38 Eastman v Attorney-General (ACT) (2007) 210 FLR 440 …. 8.41 Easton v Griffiths (1995) 130 ALR 306; 69 ALJR 669 …. 6.26 Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; 176 ALR 644 … 1.1, 9.42 Edith Haynes, Re (1904) 6 WAR 209 …. 12.25 Egan v Chadwick (1999) 46 NSWLR 563 …. 6.24 — v Willis (1996) 40 NSWLR 650 …. 6.33 — v — (1998) 195 CLR 424; 158 ALR 527 …. 6.11, 10.3 Egarr v Registrar of Board of Optical Registration [1952] SASR 163 …. 8.55 Ellis v Atkinson [1998] 3 VR 175 …. 6.9 Empson v Smith [1966] 1 QB 426 …. 13.41 Erglis v Buckley [2004] 2 Qd R 599 …. 6.27 Evans v Crichton-Browne; Commonwealth Electoral Act 1918–1980, Re (1981) 147 CLR 169; 33 ALR 609 …. 7.71

F Faderson v Bridger (1971) 126 CLR 271; [1972] ALR 162 …. 7.51 FAI Insurances Ltd v Winneke (1982) 151 CLR 342; 41 ALR 1 …. 8.6, 8.16, 8.17, 8.20, 8.26, 8.52, 8.55, 8.57 Falconer v Kenworthy (1998) 99 A Crim R 541 …. 6.27 Fardon v Attorney-General (Qld) (2004) 223 CLR 575; 210 ALR 50 …. 4.39 Featherston v Tully (2002) 83 SASR 302; 194 ALR 703 …. 7.76, 7.77 Federal Commissioner of Taxation v EO Farley Ltd (in liq) (1940) 63 CLR 278; [1940] ALR 216 …. 8.39

Fenlon v Radke [1996] 2 Qd R 157 …. 7.77 Fennell v Brough [2008] QSC 166 …. 7.34 Fenton v Hampton (1858) 11 Moo PCC 347; 14 ER 727 …. 6.2 Fingleton v R (2005) 227 CLR 166; 216 ALR 474 …. 9.37 Firebird Global Master Fund II Ltd v Republic of Nauru (2014) 316 ALR 497; 289 FLR 398 …. 13.47 Fischer v Douglas; Ex parte Fischer [1978] Qd R 27 …. 12.55 Fishing Party and Australian Electoral Commission, Re (2009) 110 ALD 172 …. 7.35, 7.36 Fitzgerald v Muldoon [1976] 2 NZLR 615 …. 3.7, 3.8 Forge v ASIC (2006) 228 CLR 45; 229 ALR 223 …. 4.23, 9.21, 9.23, 9.36 Frazer, Re; Ex parte Carroll (1951) 51 SR (NSW) 234 …. 12.19 Freemarijuana and Australian Electoral Officer for Queensland, Re (2001) 67 ALD 101 …. 7.49, 7.55 Frost v Millar [2015] QSC 206 …. 9.6 Fyffe v State of Victoria [1999] VSCA 196 …. 5.39 — v Victoria (2000) 172 ALR 336; 74 ALJR 1005 …. 5.39

G Gallagher v McClintock [2014] QCA 224 …. 6.26 Gallo v Dawson (1988) 82 ALR 401; 63 ALJR 121 …. 9.36 Galt v Flegg [2003] QSC 290 …. 7.34 Gibbs v Capewell (1995) 54 FCR 503; 128 ALR 577 …. 2.30 Giles v Tumminello [1963] SASR 96 …. 5.52 Glenister v Dillon [1976] VR 550 …. 11.18, 11.19, 11.27

— v — (No 2) [1977] VR 151 …. 11.19 Glew v Governor of Western Australia (2009) 222 FLR 417; [2009] WASC 14 …. 5.34 — v — [2009] WASCA 123 …. 5.34 Glynn v Houston (1841) 2 Man & G 336; 133 ER 775 …. 8.25 Gosling v Vely (1850) 12 QB 328; 116 ER 891 …. 8.71 Grace Bible Church v Reedman (1984) 36 SASR 376; 54 ALR 571 …. 5.21, 12.55 Gradidge v Grace Bros Pty Ltd (1988) 93 FLR 414 …. 13.18 Graham v Legal Services Commissioner (No 2) [2014] QCA 306 …. 9.38 — v Paterson (1950) 81 CLR 1; [1950] ALR 324 …. 5.10 Gratwick v Johnson (1945) 70 CLR 1; [1945] ALR 167 …. 1.36 Green v R (2011) 244 CLR 462; 283 ALR 1 …. 3.1 Greiner v ICAC (1992) 28 NSWLR 125 …. 8.65 Grinter, Re; Ex parte Hall (2004) 28 WAR 427 …. 4.40 Grollo v Palmer, Commissioner of the Australian Federal Police (1995) 184 CLR 348; 131 ALR 225 …. 4.5, 4.50, 4.51, 4.53

H H A Bachrach Pty Ltd v State of Queensland (1998) 195 CLR 547; 156 ALR 563 …. 4.37, 4.39 Ha v State of New South Wales; Hammond & Associates v State of New South Wales (1997) 189 CLR 465; 146 ALR 355 …. 5.55 Halden v Marks (1995) 17 WAR 447 …. 6.17, 6.38 Harcourt v Minister of Transport [1973] FC 1181 …. 3.12

Harnett v Crick [1908] AC 470 …. 6.11, 6.14 Harris v Muirhead [1993] 2 Qd R 527 …. 5.38 Haskins v Commonwealth (2011) 244 CLR 22; 279 ALR 434 …. 4.55, 4.58 Hearne v Street (2008) 235 CLR 125; 248 ALR 609 …. 6.8 Hedges v Australasian Conference Association Ltd [2003] NSWSC 1107 …. 11.15 Helljay Investments Pty Ltd v Deputy Commissioner of Taxation (Cth) (1999) 166 ALR 302; 74 ALJR 68 …. 8.2 Herald and Weekly Times Ltd v Woodward [1995] 1 VR 156 …. 8.37 Hilton v Wells (1985) 157 CLR 57; 58 ALR 245 …. 4.50 Hinchcliffe v Commissioner of Police (2001) 118 FCR 308 …. 3.12 Hodge v R (1883) 9 App Cas 117 …. 5.18 Holmdahl v Australian Electoral Commission (No 2) (2012) 277 FLR 101 …. 7.51 Hopkins v Governor-General of Australia (2013) 280 FLR 49 …. 4.20 Horn v Australian Electoral Commission [2007] FCA 1827 …. 7.62 Horwitz v Connor (1908) 6 CLR 38 …. 8.41 Hoxton Park Residents Action Group Inc v Liverpool City Council (No 2) [2011] NSWCA 363 …. 5.9 Huddart Parker & Co Pty Ltd & Appleton v Moorehead (1909) 8 CLR 330; 15 ALR 241 …. 4.22, 4.24 Hudson v Lee (No 2) (1993) 177 CLR 627; 116 ALR 616 …. 7.75 Hyams v Victorian Electoral Commissioner [2003] VSC 156 …. 7.22, 7.23

I

Ilan v Belmonte-Jover [2006] 1 HKLRD 703 …. 13.43 Informal v Chief Electoral Officer (SC TAS, Slicer J, 18 February 1992, unreported) …. 7.55 International Finance Trust Co Ltd v New South Wales Crime Commission (2009) 240 CLR 319; 261 ALR 220 …. 4.43

J James v Commonwealth [1936] AC 578 …. 12.9 Jamieson v McKenna (2002) 136 A Crim R 82 …. 9.25 Johnson v Kent (1975) 132 CLR 164; 5 ALR 201 …. 8.45 Jones v State of Queensland [1998] 2 Qd R 385 …. 5.54 Joseph v Colonial Treasurer of New South Wales (1918) 25 CLR 32; 24 ALR 185 …. 8.39 JT International SA v Commonwealth of Australia; British American Tobacco Australasia Ltd v Commonwealth (2012) 250 CLR 1; 291 ALR 669 …. 5.5 Judd v McKeon (1926) 38 CLR 380; [1926] ALR 389 …. 7.51 Judges v Attorney-General of Saskatchewan [1937] 2 DLR 209 …. 9.45 Judiciary and Navigation Acts, Re (1921) 29 CLR 257; 27 ALR 193 …. 1.11, 4.28 Jumbunna Coal Mine NL v Victorian Coal Miners Association (1908) 6 CLR 309; 14 ALR 701 …. 10.29

K K v NSW Ombudsman [2000] NSWSC 771 …. 11.27 Kable v Director of Public Prosecutions (DPP) (1995) 36 NSWLR 374 …. 4.32

— v Director of Public Prosecutions (DPP) (NSW) (1996) 189 CLR 51; 138 ALR 577 …. 4.19, 4.31, 4.32, 4.34, 4.36, 4.37, 4.38, 4.39, 4.40, 4.41, 4.42, 4.43 — v New South Wales (1999) 103 A Crim R 445 …. 4.35 — v — (2001) Aust Torts Reports ¶81-587 …. 4.35 Kangaroo Point East Association Inc v Balkin [1995] 2 Qd R 135 …. 5.45 Kartinyeri v Commonwealth of Australia (1998) 195 CLR 337; 152 ALR 540 …. 2.30, 5.24, 10.27 Kavanagh’s Application, Re (2003) 204 ALR 1; 78 ALJR 305 …. 13.1, 13.18 Kaye v Attorney-General (Tas) (1956) 94 CLR 193; [1956] ALR 295 …. 8.44 Kemp v Neville (1861) 10 CBNS 523; 142 ER 556 …. 10.10 Kenny v Chapman (1861) 1 W & W (L) 93 …. 10.12 King, Ex parte (1861) 2 Legge 1307 …. 12.33 King-Brooks v Roberts (1991) 5 WAR 500 …. 3.12 Kioa v West (1985) 159 CLR 550; 62 ALR 321 …. 8.41, 12.35, 12.58 Kirk v Industrial Relations Commission (NSW) (2010) 239 CLR 531; 262 ALR 569 …. 5.8 Kitson, Re [1920] SASR 230 …. 12.25 Kluver v Woolloongabba Divisional Board (1884) 2 QLJ 37 …. 8.72 Koowarta v Bjelke-Petersen (1982) 153 CLR 168; 39 ALR 417 …. 2.30 Kotsis v Kotsis (1970) 122 CLR 69; [1971] ALR 333 …. 4.18 Kruger v Commonwealth of Australia; Bray v Commonwealth of Australia (1997) 190 CLR 1; 146 ALR 126 …. 2.37, 3.26, 5.2, 12.33, 13.8

L

Lack, Re; Ex parte McManus (1965) 112 CLR 1 …. 7.76 Lane v Morrison (2009) 239 CLR 230; 258 ALR 404 …. 4.57, 4.58 Lange v Australian Broadcasting Corporation (1997) 189 CLR 520; 145 ALR 96 …. 7.72 Langer v Commonwealth (1996) 186 CLR 302; 134 ALR 400 …. 7.28, 7.49, 7.67 Language Rights Under Manitoba Act 1870, Re (1985) 19 DLR (4th) 1 …. 3.18 Laurance v Katter [2000] 1 Qd R 147; (1996) 141 ALR 447 …. 6.4 Lee v New South Wales Crime Commission (2013) 251 CLR 196; 302 ALR 363 …. 1.20 Leeth v Commonwealth of Australia (1992) 174 CLR 455; 107 ALR 672 …. 12.54 Li v Zhou (2014) 87 NSWLR 20; 310 ALR 66 …. 13.48 Limbo, Re (1989) 92 ALR 81; 64 ALJR 241 …. 12.7 Lindon v Kerr (1995) 57 FCR 284 …. 9.43 Lipohar v R (1999) 200 CLR 485; 168 ALR 8 …. 1.11, 10.5 Local Government Association of Queensland (Inc) v State of Queensland [2003] 2 Qd R 354 …. 5.22 Luton v Lessels (2002) 210 CLR 333; 76 ALJR 635 …. 8.72

M M P v Director General of Education and Training [2006] NSWSC 1041 …. 11.15 Mabo v Queensland (1988) 166 CLR 186; 83 ALR 14 …. 2.20, 4.31 — v — (No 2) (1992) 175 CLR 1; 107 ALR 1 …. 1.11, 2.12, 2.13, 2.14, 2.17,

2.20, 2.21, 2.22, 2.23, 2.28, 2.41, 3.21, 13.26 — v State of Queensland (1986) 64 ALR 1; 60 ALJR 255 …. 2.20 — v — [1992] 1 Qd R 78 …. 2.20 Macdonald v Levy (1833) 1 Legge 39 …. 2.11 Macrae v Attorney-General (NSW) (1987) 9 NSWLR 268 …. 9.31 Marbury v Madison 1 Cranch 137, 5 L Ed 60, US Lexis 352 (1803) …. 10.24, 10.27, 10.34 Marshall v Bournas [2000] NSWRT 214 …. 13.37 Martens v Commonwealth (2009) 174 FCR 114; 253 ALR 457 …. 8.41 Mason, Re [1928] 1 Ch 385 …. 8.2 Mauloni v Fraser [2007] 1 Qd R 563 …. 6.27 McBain, Re; Ex parte Australian Catholic Bishops Conference (2002) 209 CLR 372; 188 ALR 1 …. 10.9 McCawley v R (1918) 26 CLR 9; 24 ALR 413 …. 5.28 — v — [1920] AC 691 …. 1.8, 5.23 McDonald v Director of Public Prosecutions (2010) 26 VR 242 …. 2.28 — v Keats [1981] 2 NSWLR 268 …. 7.74, 7.76 McGinty v State of Western Australia (1996) 186 CLR 140; 134 ALR 289 …. 5.4, 7.31 McGuinness v Attorney-General (Vic) (1940) 63 CLR 73; [1940] ALR 110 …. 8.35 McKinney v University of Guelph (1990) 76 DLR (4th) 545 …. 1.34 Melbourne Corporation v Commonwealth (1947) 74 CLR 31; [1947] ALR 377 …. 4.3

Melville, Re [1835] Tas SC 23 …. 4.8 Metal Trades Employers Association v The Amalgamated Engineering Union (Australian Section) (1956) 8 CAR 112 …. 4.45 Meymott v Piddington (1877) 1 SCR (NSW) 306 …. 9.33 Milirrpum v Nabalco Pty Ltd (1971) 17 FLR 141; [1972–73] ALR 65 …. 2.18, 2.19 Milligan, Ex parte 4 Wall 2; 18 L Ed 281 (1866) …. 12.4 Minister for Arts, Heritage and Environment v Peko-Wallsend Ltd (1987) 15 FCR 274; 75 ALR 218 …. 8.20 Minister for Foreign Affairs and Trade v Magno (1992) 37 FCR 298; 112 ALR 529 …. 13.35 Minister for Home Affairs of the Commonwealth v Zentai (2012) 246 CLR 213; 289 ALR 644 …. 13.27 Minister for Immigration and Citizenship v Anochie (2012) 133 ALD 100; 299 ALR 280 …. 13.17 Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273; 128 ALR 353 …. 13.20 Minister for Immigration and Multicultural Affairs, Re; Ex parte Lam (2003) 214 CLR 1; 195 ALR 502 …. 13.24 Minister for Immigration and Multicultural and Indigenous Affairs v B (2004) 219 CLR 365; 206 ALR 130 …. 13.1 Mistretta v US 488 US 361 (1989) …. 4.10 Mobil Oil Australia Pty Ltd v State of Victoria (2002) 211 CLR 1; 189 ALR 161 …. 5.52 Momcilovic v R (2011) 245 CLR 1; 280 ALR 221 …. 3.28, 12.51 Montagu v Lieutenant-Governor and Executive Council of Van Diemen’s

Land (1849) 6 Moo PCC 489; 13 ER 773 …. 9.15 Morgan v Goddall (1985) 2 NSWLR 655 …. 5.53 Morris v Federal Commissioner of Taxation (1989) 25 FCR 556; 20 ATR 1666 …. 13.43 Mostyn v Fabrigas (1774) 1 Cowp 161; 98 ER 1021 …. 8.25 Muldowney v Australian Electoral Commission (1993) 178 CLR 34; 114 ALR 513 …. 7.78 Mulholland v Australian Electoral Commission (2004) 220 CLR 181; 209 ALR 582 …. 7.35 Municipal Council of Sydney v Commonwealth (1904) 1 CLR 208; 10 ALR (CN) 29 …. 8.2 Musgrove v Pulido (1879) 5 App Cas 102 …. 8.36

N Nationwide News Pty Ltd v Wills (1992) 177 CLR 1; 108 ALR 681 …. 7.31 NBGM v Minister for Immigration and Multicultural Affairs (2006) 231 CLR 52; 231 ALR 380 …. 13.17 New South Wales v Commonwealth (1915) 20 CLR 54; 21 ALR 128 …. 4.30 — v — (1975) 135 CLR 337; 8 ALR 1 …. 5.13, 5.54, 8.17 — v Kable (2013) 252 CLR 118; 298 ALR 144 …. 4.35 New South Wales Bar Association v Osei [2006] NSWADT 35 …. 13.37 Newcrest Mining (WA) Ltd v BHP Minerals Ltd & Commonwealth (1997) 190 CLR 513; 147 ALR 42 …. 13.18, 13.25 Ngo v R (2013) 233 A Crim R 121 …. 1.37 Nibbs v Devonport City Council [2015] TASSC 34 …. 8.2

Nile v Wood (1988) 167 CLR 133; 78 ALR 684 …. 7.12 Ninan v Judge Newnes & Judge Murphy [2015] WASC 98 …. 9.38 Nisselle v Brouwer (2007) 16 VR 296 …. 11.18 Noah v Campbell [2007] FMCA 2128 …. 7.54 Noonan v Ambulance Victoria (Review and Regulation) [2014] VCAT 534 …. 11.37 North Australian Aboriginal Legal Aid Service Inc v Bradley (2004) 218 CLR 146; 206 ALR 315 …. 9.2 Nulyarimma v Thompson (1999) 96 FCR 153; 165 ALR 621 …. 13.8

O Obergfell v Hodges 576 US (2015) …. 12.57 O’Connor v South Australia (1976) 14 SASR 187 …. 9.22 Ogilvie v Lowe [1963] VR 225 …. 12.14 Ombudsman v Koopman (2003) 58 NSWLR 182 …. 11.31 — v Laughton (2005) 64 NSWLR 114 …. 11.31 Ombudsman v Moroney [1983] 1 NSWLR 317 …. 11.27 O’Neill v Mann (1994) 49 FCR 370; 121 ALR 524 …. 9.29 Orpen v A-G for Ontario [1925] 2 DLR 366 …. 8.28 Osborne v Shepherd [1981] 2 NSWLR 277 …. 7.74 O’Shane v Harbour Radio Pty Ltd (2013) 85 NSWLR 698; 303 ALR 314 …. 9.1 O’Sullivan v Central Sydney Area Health Service (No 2) [2005] NSWADT 136 …. 8.25 O’Toole v Charles David Pty Ltd (No 1) (1991) 171 CLR 232; 99 ALR 415 ….

1.11 Owen v Ombudsman (Boyce) (1999) 131 NTR 15; 154 FLR 119 …. 11.15, 11.16

P P & C Cantarella Pty Ltd v Egg Marketing Board (NSW) [1973] 2 NSWLR 366 …. 3.15 P (Children Act; Diplomatic Immunity), Re [1998] 1 FLR 624 …. 13.38 Palmer v Superintendent Auckland Prison Albany (NZHC, M 753–SW01, Laurenson J, 1 June 2001, unreported) …. 4.19 Pape v Commissioner of Taxation (2009) 238 CLR 1; 257 ALR 1 …. 1.2, 6.5, 8.72, 8.75, 10.27 Parlement Belge, The (1880) 5 PD 197 …. 13.45 Patterson, Re; Ex parte Taylor (2001) 207 CLR 391; 182 ALR 657 …. 1.2 Paulding v Australian Electoral Commission [2000] AATA 202 …. 7.44 Paxton v Ford, Minister for Fisheries [2006] WASC 194 …. 11.8 People’s Republic of China v Stonnington City Council [1999] VICCAT 309 …. 13.48 Pepper v Attorney-General (Qld) (No 1) [2008] QSC 16 …. 8.41 — v — (No 2) [2008] 2 Qd R 353 …. 8.41 Phillips, Re; Ex parte Aboriginal Development Commission (1987) 13 FCR 384; 72 ALR 508 …. 2.28 Pickin v British Railway Board [1974] AC 765 …. 10.10 Pirrie v McFarlane (1925) 36 CLR 170; 31 ALR 365 …. 3.20 Plaintiff M70/2011 v Minister for Immigration and Citizenship; Plaintiff

M106/2011 v Minister for Immigration and Citizenship (2011) 244 CLR 144; 280 ALR 18 …. 12.59, 13.16 Polites & Kandiliotes v Commonwealth (1945) 70 CLR 60; [1945] ALR 113 …. 13.2 Pollentine v Bleijie (2014) 253 CLR 629; 311 ALR 332 …. 4.31 Port MacDonnell Professional Fishermen’s Association v South Australia (1989) 168 CLR 340; 88 ALR 12 …. 5.27, 5.52 Port of Portland Pty Ltd v State of Victoria (2010) 242 CLR 348 …. 3.10 Powell v Apollo Candle Co (1885) 10 App Cas 282 …. 5.18 Prebble v Television New Zealand [1995] 1 AC 321 …. 6.29 Precision Data Holdings Ltd v Wills (1991) 173 CLR 167; 104 ALR 317 …. 4.25, 4.26, 4.27 Proclamations, The Case of (1611) 12 Co Rep 74; 77 ER 1352 …. 8.35 Propend Finance Pty Ltd v Sing [1997] EWCA Civ 1433 …. 13.34 PT Garuda Indonesia Ltd v Australian Competition and Consumer Commission (2012) 247 CLR 240; 290 ALR 681 …. 13.46, 13.47 Public Prosecutor v Olmez [1988] LRC (Const) 206 …. 13.41 Public Service Association of South Australia Inc v Industrial Relations Commission of South Australia (2012) 249 CLR 398; 289 ALR 1 …. 5.8

Q Queen Victoria Memorial Hospital v Thornton (1953) 87 CLR 144; [1953] ALR 303 …. 4.50, 10.29 Queensland v Commonwealth (1989) 167 CLR 232; 86 ALR 519 …. 13.2 Question of Law Reserved on Acquittal (No 3 of 1995) (1996) 66 SASR 450 …. 8.38

R R v Ballard [1829] NSWSupC 26 …. 2.24, 2.26 — v Bamford (1901) 7 ALR (CN) 89b; 1 SR (NSW) 337 …. 5.42 — v Bolton; Ex parte Beane (1987) 162 CLR 514; 70 ALR 225 …. 5.49 — v Bonadie (1996) 109 CCC (3rd) 356 …. 13.43 — v Browning (1991) 103 FLR 425 …. 13.41 — v Burah (1878) 3 App Cas 889 …. 5.18 — v Buzzacott (2004) 149 A Crim R 320 …. 2.27, 2.28 — v Catagas (1977) 81 DLR (3d) 396 …. 3.9 — v Commissioner for Transport; Ex parte Cobb & Co [1963] Qd R 547 …. 5.12 — v Commissioner of Police; Ex parte Blackburn (No 3) [1973] 1 QB 241 …. 3.12 — v Commissioner of Police, Tasmania; Ex parte North Broken Hill Ltd (1992) 1 Tas R 99 …. 3.12 — v Commonwealth Court of Conciliation and Arbitration; Ex parte Whybrow & Co (1910) 11 CLR 1; 16 ALR 373 …. 10.27 — v Commonwealth Court of Conciliation & Arbitration; Ex parte Tramways (No 1) (1914) 18 CLR 54; 20 ALR 126 …. 10.27 — v Cosgrove [1945] Tas SR 95 …. 8.40 — v Davey; Ex parte Freer (1936) 56 CLR 381 …. 12.19 — v Davison (1954) 90 CLR 353; [1954] ALR 877 …. 4.1, 4.24 — v Dean (1896) 17 NSWLR 35 …. 8.40 — v Dixon; Ex parte Prince and Oliver [1979] WAR 116 …. 11.26 — v Duncan, Ex parte Australian Iron and Steel Pty Ltd (1983) 158 CLR 535;

49 ALR 19 …. 1.30 — v Fingleton (2003) 140 A Crim R 216 …. 9.37 — v Frawley (2005) 190 FLR 158 …. 5.10 — v Governor of Pentonville Prison; Ex parte Teja [1971] 2 QB 274 …. 13.37 — v Governor of South Australia (1907) 4 CLR 1497 …. 8.55 — v Grant and Lovett [1972] VR 423 …. 2.27 — v Grassby (1991) 55 A Crim R 419 …. 6.28 — v Home Secretary; Ex parte Simms [2000] 2 AC 115 …. 10.10, 10.11 — v Hoser and Kotabi Pty Ltd [2001] VSC 443 …. 9.3 — v Hughes (2000) 202 CLR 535; 171 ALR 155 …. 12.33 — v Husen Baco (2011) 29 NTLR 221 …. 13.2 — v Hutchinson; Ex parte Chapman and Cockington [1959] SASR 189 …. 12.23 — v Kidman (1915) 20 CLR 425; 21 ALR 405 …. 3.28 — v Kirby; Ex parte Boilermakers’ Society of Australia (1956) 94 CLR 254; ALR 163 …. 4.10, 4.15, 4.45, 4.47, 4.49, 4.57, 4.58, 10.1 — v Kocan [1966] 2 NSWR 565 …. 1.37 — v Lancashire County Council; Ex parte Huddleston [1986] 2 All ER 941 …. 4.3 — v Lars (aka Larsson) (1994) 33 NSWLR 301 …. 8.27 — v London Entertainments Ltd [1931] 2 KB 215 …. 8.46 — v Lowe [1827] NSWSupC 32 …. 2.4 — v Lydon; Ex parte Cessnock Colliers Ltd (1960) 103 CLR 15; [1960] ALR 267 …. 4.31

— v Mayor, Aldermen and Citizens of the City of Launceston, Ex parte the Auditor-General (1923) 19 Tas LR 7 …. 11.39 — v McAuley; Ex parte Fardell (1979) 2 NTR 22 …. 3.12 — v McKay (1998) 135 ACTR 29; 148 FLR 212 …. 4.32 — v Menzies [1864] Macc 298 …. 5.32 — v Milnes and Green (1983) 33 SASR 211 …. 8.36, 8.40 — v Mitchell (1994) 72 A Crim R 200 …. 8.40 — v Moffatt [1998] 2 VR 229 …. 4.36 — v Moss; Ex parte Mancini (1982) 29 SASR 385 …. 9.4, 9.5 — v Murrell and Bummaree [1836] NSWSupC 35 …. 2.26, 2.27 — v Ngo (2003) 57 NSWLR 55 …. 1.37 — v Nuttall, Ex parte Attorney-General [2011] 2 Qd R 328 …. 6.15 — v Parliamentary Commissioner for Administration; Ex parte Dyer [1994] 1 WLR 621 …. 11.32 — v Phillips (1970) 125 CLR 93; [1971] ALR 161 …. 5.43 — v Phillips and Pringle [1973] 1 NSWLR 275 …. 13.2 — v Public Vehicles Licensing Appeal Tribunal (Tas); Ex parte Aust National Airways Pty Ltd (1964) 11 3 CLR 207; [1964] ALR 918 …. 5.10 — v Richards; Ex parte Fitzpatrick and Browne (1955) 92 CLR 157; [1955] ALR 705 …. 4.54, 6.17, 6.38 — v Rogers; Ex parte Lewis (1878) 4 VLR(L) 334 …. 9.19 — v Somerset County Council; Ex parte Fewings [1995] 1 All ER 513 …. 12.4 — v Stead [1994] 1 Qd R 665 …. 3.8, 3.12 — v Theophanous (2003) 141 A Crim R 216 …. 6.27

— v Toohey; Ex parte Northern Land Council (1981) 151 CLR 170; 38 ALR 439 …. 8.55 — v Trade Practices Tribunal; Ex parte Tasmanian Breweries Pty Ltd (1970) 123 CLR 361; [1970] ALR 449 …. 4.8 — v Turnbull [1958] Tas SR 80 …. 6.17, 6.26 — v Turnbull; Ex parte Petroff (1971) 17 FLR 438 …. 13.45 — v We-War [1842] NSWSupC 1 …. 2.4 — v Wedge [1976] 1 NSWLR 581 …. 2.27 — v White; Ex parte Byrnes (1963) 109 CLR 665; [1964] ALR 365 …. 4.27 — v Willougby [1975] WAR 19 …. 5.43 R (Bradley) v Secretary of State for Work and Pensions [2009] QB 114 …. 11.29 R (Shields) v Secretary of State for Justice [2010] QB 150 …. 8.41 Rajski v Powell (1987) 11 NSWLR 522 …. 9.22 Rann v Olsen (2000) 76 SASR 450; 172 ALR 395 …. 6.29, 6.35 Rees v McKay (1975) 7 ACTR 4; 26 FLR 228 …. 6.31, 6.36 Reference by the Legislative Council of (NSW), Re; Trautwein, Re (1940) 40 SR (NSW) 371 …. 7.16 Reference Re Canada Assistance Plan (1991) 83 DLR (4th) 297 …. 5.23 Reference Re Power of Municipalities to Levy Rates on Foreign Legations and High Commissioners’ Residences [1943] 2 DLR 481 …. 13.38 Regina and Palacios, Re (1984) 7 DLR (4th) 112 …. 13.40 Reid, Re; Ex parte Bienstein (2001) 182 ALR 473; 22(16) Leg Rep 26 …. 9.29 Richtersveld Community v Alexkor Ltd 2003 (6) SA 104 …. 2.5

Riel v R (1885) 10 App Cas 675 …. 5.18, 5.21 Roach v Electoral Commissioner (2007) 233 CLR 162; 239 ALR 1 …. 7.46 Robertson v Australian Electoral Commission (1993) 116 ALR 407; 67 ALJR 818 …. 7.78 Robinson v Lloyd [1962] WAR 168 …. 8.71, 8.72 Rose v R [1947] 3 DLR 618 …. 13.32 Rowan v Cornwall (1997) 68 SASR 253 …. 6.27 Rowe v Electoral Commissioner (2010) 243 CLR 1; 273 ALR 1 …. 1.20, 5.11, 7.52 Rowley v O’Chee [2000] 1 Qd R 207; (1997) 150 ALR 199 …. 6.1, 6.26 Ruddock v Vadarlis (2001) 110 FCR 491; 183 ALR 1 …. 3.22 Rudolphy v Lightfoot (1999) 197 CLR 500; 167 ALR 105 …. 7.75 Rusden v Weekes (1861) 2 Legge 1406 …. 10.17 Rush v Commissioner of Police (2006) 150 FCR 165; 229 ALR 383 …. 13.18 Rutledge v State of Victoria (2013) 251 CLR 457; 304 ALR 315 …. 8.31 RWDSU Local 580 v Dolphin Delivery Ltd (1986) 33 DLR (4th) 174 …. 12.74 Ryder v Foley (1906) 4 CLR 422; 13 ALR 441 …. 1.24

S Saab v Embassy of the Arabic Republic of Egypt [1997] ACTSC 80 …. 13.34 Sagar v O’Sullivan (2011) 193 FCR 311; 278 ALR 456 …. 3.1 Salisbury City Council v Biganovsky (1990) 54 SASR 117 …. 11.22, 11.27 Sankey v Whitlam (1978) 142 CLR 1; 21 ALR 505 …. 6.28, 6.37 Sarina v Wollondilly Shire Council (1978) 21 ALR 81 …. 5.38

Scarcella v Morgan [1962] VR 201 …. 7.77 Schooner Exchange v M’Faddon (1812) 7 Cranch 259; 11 L Ed 114 …. 13.45 Scott v Martin (1988) 14 NSWLR 663 …. 7.70 Seafish Tasmania Pelagic Pty Ltd v Minister for Sustainability (No 2) (2014) 225 FCR 97 …. 10.27 Seamen’s Union of Australia v Matthews (1957) 96 CLR 529; [1957] ALR 828 …. 4.45 Secretary, Department of Human Services v Sanding [2011] VSC 42 …. 10.27 Sharp v Wakefield [1891] AC 173 …. 3.24 Sharples v Arnison [2001] QSC 56 …. 8.16 — v — [2002] 2 Qd R 444 …. 8.25 — v Australian Electoral Commission (No 3) (2008) 166 FCR 466 …. 7.35 Shaw v Attorney-General for the State of Victoria [2011] VSCA 63 …. 5.39 — v Minister for Immigration and Multicultural Affairs (2003) 218 CLR 28; 203 ALR 143 …. 1.6 Shipping Corporation of India Ltd v Gamlen Chemical Co (A/Asia) Pty Ltd (1980) 147 CLR 142; 32 ALR 609 …. 13.29 Shoalhaven City Council v Ellis [2012] NSWLEC 189 …. 5.38 Silbert v Director of Public Prosecutions (DPP) (WA) (2004) 217 CLR 181; 205 ALR 43 …. 4.38 Simsek v MacPhee (Minister for Immigration and Ethnic Affairs) (1982) 148 CLR 636; 40 ALR 61 …. 13.13 Sirros v Moore [1975] 1 QB 118 …. 9.37 Slipper v Magistrates Court of the ACT (2014) 179 ACTR 1; 285 FLR 78 …. 6.27

Smiles v Commissioner of Taxation (1992) 35 FCR 405; 107 ALR 439 …. 3.12 Smith v Australian Electoral Commission (2008) 104 ALD 395; [2008] FCA 953 …. 7.35, 7.75 Sneddon v The Speaker of the Legislative Assembly (2011) 208 IR 255 …. 1.20 Snell v Sanders (1995) 122 FLR 33 …. 6.26 Somerset v Stewart (1772) Lofft 1; 98 ER 499 …. 12.5 South Australia v O’Shea (1987) 163 CLR 378; 73 ALR 1 …. 8.21 — v Totani (2010) 242 CLR 1 …. 9.3 — v Victoria (1911) 12 CLR 667; 17 ALR 206 …. 8.46 South Australian River Fishery Association Inc v South Australia (2003) 85 SASR 373 …. 8.60 South Eastern Drainage Board (SA) v Savings Bank of South Australia (1939) 62 CLR 603; [1940] ALR 1 …. 5.19, 5.24, 5.27 State of South Australia v Commonwealth (No 1) (1942) 65 CLR 373; [1942] ALR 186 …. 10.22 — v Lampard-Trevorrow (2010) 106 SASR 331 …. 2.39 — v Russell (1994) 62 SASR 288 …. 12.33 — v Totani (2010) 242 CLR 1; 271 ALR 662 …. 4.42 State of Western Australia v Bond Corporation Holdings Ltd (1991) 5 WAR 40 …. 3.13, 3.15 Stewart v Ronalds (2009) 76 NSWLR 99; 259 ALR 86 …. 1.2, 1.21, 8.33 Stockdale v Hansard (1839) 9 Ad & El 1; 112 ER 1112 …. 6.19, 6.27 Strachan v Graves (1997) 141 FLR 283 …. 5.17 Street v Queensland Bar Association (1989) 168 CLR 461; 88 ALR 321 …. 1.3

Sue v Hill (1999) 199 CLR 462; 163 ALR 648 …. 4.27, 5.20, 7.15, 8.2, 8.61 Suncorp Insurance and Finance, Re [1991] 2 Qd R 704 …. 8.38 Svikart v Stewart (1994) 181 CLR 548; 125 ALR 554 …. 5.47 Sykes v Cleary (No 2) (1992) 176 CLR 77; 109 ALR 577 …. 7.14, 7.21, 7.22, 7.23 Symons v Morgan, The Courier (Hobart), 2 February 1848, p 3 …. 10.13, 10.14, 10.15, 10.16 Szwarcbord v Gallop (2002) 167 FLR 262 …. 6.27

T Tajjour v New South Wales (2014) 313 ALR 221; 88 ALJR 860 …. 13.18 Tanti v Davies (No 3) [1996] 2 Qd R 602 …. 7.45, 7.76 Taylor v Anstis [1940] VLR 307; ALR 257 …. 5.55 Teoh v Minister for Immigration, Local Government & Ethnic Affairs [1993] FCA 423 …. 13.20 — v — (1994) 49 FCR 409; 121 ALR 436 …. 13.20, 13.21, 13.23, 13.24 Theophanous v Commonwealth (2006) 225 CLR 101; 226 ALR 602 …. 7.16 Thiel v Federal Commissioner of Taxation (1990) 171 CLR 338; 94 ALR 647 …. 13.29 Thomas v Mowbray (2007) 233 CLR 307; 237 ALR 194 …. 4.25, 4.26 Thompson v R (1989) 169 CLR 1; 86 ALR 1 …. 5.51 Tilley v R (1991) 56 SASR 140; 53 A Crim R 180 …. 5.13 Toohey v Melville (1892) 13 LR (NSW) 132 …. 6.14 Totani v State of South Australia (2009) 105 SASR 244; 259 ALR 673 …. 4.42 Toussaint v Attorney General of Saint Vincent and the Grenadines [2008] 1

WLR 2825 …. 6.26 Toy v Musgrove (1888) 14 VLR 349 …. 8.21, 8.46 Tracey, Re; Ex parte Ryan (1989) 166 CLR 518; 84 ALR 1 …. 4.55, 4.56 Trench v R (1887) 13 VLR 13 …. 9.19 Trethowan v Peden (1930) 31 SR (NSW) 183 …. 5.25, 5.36, 10.20 Trevorrow v State of South Australia (No 5) (2007) 98 SASR 136 …. 2.39 Tucker v MacDonald [2001] QSC 296 …. 7.34 Tucs v Algie (1985) 38 SASR 490 …. 5.44 Turner v King [1992] 1 Qd R 307 …. 7.77

U Union Steamship Co of New Zealand Ltd v Commonwealth (1925) 36 CLR 130; 31 ALR 269 …. 10.21 Union Steamship Company of Australia Pty Ltd v King (1988) 166 CLR 1; 82 ALR 43 …. 5.15, 5.18, 5.21, 5.53 Ure v Commonwealth (2015) 323 ALR 164 …. 2.19

V Varty v Ives [1986] VR 1 …. 7.63 Victims Compensation Fund Corporation v Brown (2003) 201 ALR 260; 77 ALJR 1797 …. 5.23 Victoria v Commonwealth (1975) 134 CLR 338; 7 ALR 277 …. 8.44, 8.60 Victorian Stevedoring and General Contracting Co Pty Ltd and Meaks v Dignan (1931) 46 CLR 73; [1932] ALR 22 …. 4.14 Von Einem v Griffin (1998) 72 SASR 110 …. 8.40, 8.41

W W & A McArthur Ltd v Queensland (1920) 28 CLR 530; 27 ALR 130 …. 12.9 Wainohu v State of New South Wales (2011) 243 CLR 181; 278 ALR 1 …. 4.44 Wake v Northern Territory of Australia (1996) 5 NTLR 170 …. 3.31 Walker v Government of the Republic of Vanuatu [2011] FCFCA 138 …. 13.47 — v R [1989] 2 Qd R 79 …. 2.27 — v South Australia (No 2) (2013) 215 FCR 254 …. 2.28 — v State of New South Wales (1994) 182 CLR 45; 126 ALR 321 …. 2.28, 3.15, 3.21, 5.40 Ward v R (1980) 142 CLR 308; 29 ALR 175 …. 5.51 Waters v Acting Administrator of the Northern Territory (1993) 46 FCR 462; 119 ALR 557 …. 8.60 Waterside Workers’ Federation of Australia v J W Alexander Ltd (1918) 25 CLR 434; 24 ALR 341 …. 4.30, 4.45 Watson v South Australia (2010) 276 ALR 168 …. 8.52 Webster, Re (1975) 132 CLR 270; 6 ALR 65 …. 7.26 Wesberry v Sanders 376 US 1 (1964) …. 7.31 West v Suzuka [1964] WAR 112 …. 12.20 West Lakes Ltd v South Australia (1980) 25 SASR 389 …. 5.23, 5.24, 6.38 Western Australia v Commonwealth (1995) 183 CLR 373; 128 ALR 1 …. 2.22, 2.31 — v Wilsmore (1982) 149 CLR 79; 40 ALR 213 …. 5.24, 5.28, 5.32 Western Sahara case [1975] ICJ Rep 12 …. 2.7, 2.10, 2.13, 2.21

Westminster Council v Islamic Republic of Iran [1986] 1 WLR 979 …. 13.39 Williams v Attorney-General (NSW) (1913) 16 CLR 404; 19 ALR 378 …. 2.16 — v Commonwealth of Australia (2012) 248 CLR 156; 288 ALR 410 …. 1.20, 8.73, 8.74, 8.75 Willis v Gipps (1846) 5 Moo PCC 379; 13 ER 536 …. 9.13, 9.14, 9.16 Wilson v Minister for Aboriginal and Torres Strait Islander Affairs (1996) 189 CLR 1; 138 ALR 220 …. 4.8, 4.10, 4.52, 4.53 Woo Tin, Ex parte (1888) 9 LR (NSW) 493 …. 12.16 Wood, Re (1988) 167 CLR 145; 78 ALR 257 …. 7.10 Woodward v Sarsons (1875) LR 10 CP 733 …. 7.77 WorkCover Authority of New South Wales v Police Service of New South Wales (2000) 50 NSWLR 333 …. 8.2 WorkCover Corporation (Century Products (SA) Pty Ltd) v Hojski (1993) 61 SASR 290 …. 5.55, 6.5, 8.29 Worthing v Rowell & Muston Pty Ltd (1970) 123 CLR 89; 44 ALJR 230 …. 5.43 Wotton v Queensland (2012) 246 CLR 1; 285 ALR 1 …. 1.20 Wright v McQualter (1970) 17 FLR 305 …. 13.34 Wright & Advertiser Newspaper Ltd v Lewis (1990) 53 SASR 416 …. 6.28, 6.29

Y Yager v R (1977) 139 CLR 28; 13 ALR 247 …. 13.28 Yanner v Eaton (1999) 201 CLR 351; 166 ALR 258 …. 2.23 Yarran v Blurton (1992) 35 FCR 485; 107 ALR 514 …. 7.2

Z Zhang v Zemin (2010) 79 NSWLR 513 …. 13.47

Table of Statutes References are to paragraph numbers

COMMONWEALTH Aboriginal and Torres Strait Islander Heritage Protection Act 1984 …. 2.30, 4.52 s 10(1)(c) …. 4.52 Aboriginal and Torres Strait Islanders Peoples Recognition Act 2013 …. 2.32 Ch IIIA …. 2.33 s 51A …. 2.33 s 60A …. 2.33 s 80A …. 2.33 s 116A …. 2.33 Acts Interpretation Act 1901 s 15A …. 10.29 Administrative Appeals Tribunal Act 1975 …. 10.8, 10.23 Administrative Decisions (Judicial Review) Act 1977 …. 8.56, 10.2, 10.7 Age Discrimination Act 2004 …. 12.56 ss 34–44 …. 3.11 Air Navigation Act 1920 s 4 …. 13.15 Aliens Registration Act 1920 …. 13.43 s 13 …. 13.43

Auditor-General Act 1997 s 8(1)(4) …. 11.36 s 38 …. 11.35 s 50 …. 11.36 Sch 1.6 …. 11.36 Australia Act 1986 …. 1.32, 5.20, 5.24, 5.27, 5.32, 8.1 s 1 …. 5.20 s 1(a) …. 5.55 s 2(1) …. 5.53 s 3(1) …. 5.24, 8.31, 10.19, 10.21 s 6 …. 5.24, 5.28 s 7 …. 8.6 s 7(3) …. 8.27 s 7(4) …. 8.27 s 7(5) …. 8.19 s 9 …. 5.34 s 9(2) …. 5.32 s 11 …. 9.9 s 16 …. 8.51 Australian Capital Territory (Self-Government) Act 1988 s 21 …. 6.7 s 24 …. 6.3 s 24(3) …. 6.5

s 40 …. 8.19 Australian Citizenship Act 2007 Sch 1 …. 3.15 Australian Security Intelligence Organization Act 1976 s 2 …. 4.47 s 4 …. 4.47 Banking Act 1947 Pt IV …. 10.31 s 51(ii) …. 10.31 s 51(xxii) …. 10.31 s 51(xxxi) …. 10.31 s 105A …. 10.31 Broadcasting Act 1942 s 80A …. 12.35 Charter of Budget Honesty Act 1998 s 3 …. 8.59 s 29 …. 8.19 Charter of the United Nations Act 1945 …. 13.10, 13.14 Charter of the United Nations Amendment Act 1993 …. 13.14 Charter of the United Nations (Sanctions — Somalia) Regulations 2008 reg 11(2)(c) …. 13.10 Charter of the United Nations (Sanctions — Somalia) Amendment Regulations 2009 …. 13.10

Chemical Weapons (Prohibition) Act 1994 s 3 …. 13.15 Civil Aviation (Carriers’ Liability) Act 1959 s 8 …. 13.14 Coastal Powers (States) Act 1980 …. 5.10 Commonwealth Act of 1977 …. 10.7 Commonwealth (Application of Laws) Act 1970 …. 5.44 Commonwealth Electoral Act 1918 …. 7.37, 7.47, 7.49, 7.52, 7.73, 7.75 Pt XI …. 7.35 Pt XX …. 7.37 s 59 …. 7.29 s 61 …. 13.12 s 66 …. 7.30 s 93 …. 7.44 s 93(8) …. 7.46 s 93A …. 7.48 ss 94–97 …. 7.44 s 100 …. 7.44 s 101 …. 7.51 s 102 …. 7.52 s 151 …. 7.52 s 155 …. 7.52 s 156 …. 7.52

s 157 …. 7.52 s 159 …. 7.52 s 163 …. 7.10 s 166 …. 7.54 s 170(3) …. 7.54 s 182 …. 7.57 s 220 …. 7.52 ss 224–227 …. 7.59 s 234 …. 7.62 s 245 …. 7.51 s 327 …. 7.69 s 329 …. 7.71 s 329A …. 7.66 s 340 …. 7.65 s 353 …. 7.74 s 361 …. 7.50 Sch 2 …. 7.57 Commonwealth Electoral Act 1962 …. 2.29 Commonwealth Franchise Act 1902 s 4 …. 2.29 Commonwealth of Australia Constitution Act 1900 …. 1.1, 1.2, 1.3, 1.7, 1.8, 1.15, 1.16, 1.17, 1.19, 1.23, 1.28, 1.30, 1.32, 1.35, 2.1, 2.34, 2.35, 3.17, 3.25, 3.31, 4.20, 5.1, 5.3, 5.4, 5.8, 5.9, 5.11, 5.14, 5.20, 5.21, 5.22, 5.23, 5.24, 5.27,

5.28, 5.29, 5.41, 7.15, 7.31, 7.72, 10.3, 10.22, 10.25, 10.26, 12.32, 12.36, 12.54, 12.74 Ch I …. 12.36 Ch III …. 4.16, 4.22, 4.26, 4.28, 4.30, 4.32, 4.33, 4.36, 4.37, 4.54, 4.56, 4.57, 4.58, 7.73, 9.45 Pt III …. 4.21 cl III(a) …. 8.12 cl 5 …. 5.39 s 1 …. 4.10, 5.12, 7.5 s 2 …. 8.6 s 4 …. 8.12 s 5 …. 3.17, 5.11 s 6 …. 1.31 s 7 …. 12.54 s 8 …. 5.11, 8.51, 12.54 s 9 …. 1.20 s 12 …. 7.52 s 13 …. 7.8 s 15 …. 8.51 s 17 …. 5.11 s 21 …. 8.51 s 24 …. 7.31, 12.54 s 25 …. 2.32 s 27 …. 1.20

s 28 …. 7.7 ss 29–30 …. 1.20 s 30 …. 5.11 s 32 …. 7.52 s 41 …. 2.29 s 43 …. 4.13 s 44 …. 7.12, 7.13 s 44(ii) …. 3.14, 7.16 s 44(iv) …. 4.14, 7.21 s 44(v) …. 7.25 s 49 …. 1.22, 4.54, 5.11, 6.3 s 50 …. 1.22, 6.6 s 50(1) …. 6.6 s 51 …. 1.22, 2.29, 2.32, 5.3, 5.5, 5.10, 5.11, 8.74, 10.22, 10.30, 12.54 s 51(i) …. 5.5 s 51(ii) …. 10.22 s 51(iii) …. 10.22 s 51(vi) …. 1.3, 4.55, 4.56, 5.6 s 51(xii) …. 5.6 s 51(xiii) …. 5.7 s 51(xiv) …. 5.7 s 51(xx) …. 5.5 s 51(xxvi) …. 2.29, 2.30, 2.32, 2.34

s 51(xxvii) …. 5.6 s 51(xxix) …. 2.30, 5.6 s 51(xxxvi) …. 2.30, 5.11 s 51(xxxvii) …. 1.30, 5.10 s 51(xxxviii) …. 1.30 s 52 …. 5.11, 10.22 s 52(i) …. 5.45 s 57 …. 7.8 cl 60A(2) …. 12.36 s 61 …. 3.22, 4.10, 8.73, 8.74, 8.75 s 64 …. 1.27, 4.14, 8.33, 8.49 ss 64–66 …. 1.27 s 66 …. 1.17 s 68 …. 8.52 s 71 …. 1.17, 4.10, 4.20, 4.23, 4.24, 4.30 s 72 …. 1.23, 4.21, 4.23, 4.45, 4.55, 9.24, 9.45 s 72(i) …. 4.21, 9.21 s 72(ii) …. 4.21, 9.1, 9.27 s 72(iii) …. 4.21, 9.33 s 73 …. 10.22 s 73(ii) …. 4.34 s 75(v) …. 7.76, 10.2, 10.6, 10.27 s 76 …. 4.28

s 76(i) …. 1.23, 10.27 s 77 …. 4.35, 10.22 s 78 …. 10.22 s 79 …. 10.22 s 80 …. 4.32, 5.44, 12.54 s 81 …. 8.72, 8.75 s 83 …. 8.74, 8.75 s 84 …. 5.11 s 86 …. 1.30, 5.55 s 90 …. 5.8, 10.22 s 92 …. 1.30, 5.8, 10.22, 12.9, 12.54 s 96 …. 1.30, 10.22 s 99 …. 5.9, 10.22 s 100 …. 5.9 s 101 …. 4.30 s 106 …. 5.13, 10.22 s 107 …. 5.13, 10.22 s 108 …. 5.42 s 109 …. 1.30, 2.23, 5.7, 5.10, 5.22, 5.52, 5.53 s 110 …. 8.51 s 114 …. 1.14, 5.8, 10.22 s 115 …. 5.8 s 116 …. 5.9, 10.22, 12.36, 12.54

s 117 …. 5.8, 10.22, 12.54 s 119 …. 1.14 s 120 …. 1.29 s 122 …. 1.30, 5.5, 5.11, 10.22 s 127 …. 2.32 s 126 …. 8.12 s 128 …. 5.24 Commonwealth Places (Administration of Laws) Act 1970 …. 5.43 s 4(5)(a) …. 5.46 Commonwealth Places (Application of Laws) Act 1970 … 5.47 Commonwealth Places (Mirror Taxes) Act 1998 …. 5.46 Communist Party Dissolution Act 1950 …. 10.27, 10.32 s 51 …. 10.32 s 51(vi) …. 10.32 Complaints (Australian Federal Police) Act 1981 s 32 …. 8.19 Comprehensive Nuclear Test-Ban Treaty Act 1988 s 70(2) …. 13.19 Conciliation and Arbitration Act 1904–1955 Pt III …. 4.45 s 26 …. 4.45 s 29(1) …. 4.45 Consular Privileges and Immunities Act 1972 …. 5.48, 13.33, 13.43

s 5(1) …. 13.17, 13.43 s 5(2) …. 13.15 Copyright Act 1968 s 8A …. 8.48 Corporations Act 2001 s 1338B(1) …. 4.22 Courts Legislation Amendment (Judicial Complaints) Act 2012 …. 9.27 Crimes Act 1914 …. 1.29, 4.22, 7.16 s 51 …. 13.9, 13.10 Crimes at Sea Act 2000 s 6 …. 5.54 Crimes (Overseas) Act 1964 …. 5.51, 13.19 s 7(1) …. 4.22 Crimes (Torture) Act 1988 s 4 …. 5.51 Crimes (Superannuation Benefits) Act 1989 s 21(1)(a) …. 7.16 Crown Debts (Priority) Act 1981 s 3(1) …. 8.37 Defence Act 1903 ss 51–51G …. 1.14 Defence Force Discipline Act 1982 …. 4.55, 4.57 Defence (Visiting Forces) Act 1963 …. 5.43

s 9 …. 5.49 Diplomatic and Consular Missions Act 1978 s 5 …. 13.36 Diplomatic Immunities Act 1952 …. 13.33 Diplomatic Privileges and Immunities Act 1967 …. 5.48, 13.33, 13.35 s 7(1) …. 13.17 Disability Discrimination Act 1992 …. 12.56 Equal Employment Opportunity (Commonwealth Authorities) Act 1987 …. 12.56 Evidence Act 1995 s 10(1) …. 6.6 s 15(2) …. 6.31, 6.32 Extradition Act 1988 …. 4.20 s 5 …. 13.19 Federal Court of Australia Act 1976 s 6(1)(b) …. 9.27 s 11 …. 9.42 s 23 …. 10.6 Sch …. 9.42 Federal Court of Australia Amendment (Criminal Jurisdiction) Act 2009 …. 1.29 Federal Financial Relations Act 2009 s 5 …. 1.30 Federal Magistrates Act 1999

s 9 …. 9.27 Foreign States Immunities Act 1985 …. 13.46, 13.47 s 3 …. 13.27 s 3(1) …. 13.48 s 9 …. 13.47, 13.48 s 10 …. 13.48 ss 10–12 …. 13.48 s 11 …. 13.48 s 12 …. 13.38 s 14 …. 13.48 Franchise Fees Windfall Tax (Collection) Act 1997 …. 5.55 Franchise Fees Windfall Tax (Imposition) Act 1997 …. 5.55 Freedom of Information Act 1982 s 34 …. 8.19 Disability Discrimination Act 1992 s 55 …. 3.11 Genocide Convention Act 1949 …. 13.8 s 4 …. 13.14 Hazardous Waste (Regulation of Exports and Imports) Act 1989 s 3(2)(a) …. 13.15 High Court of Australia Act 1979 …. 4.20 s 7(b) …. 9.21 s 11 …. 9.42

s 13 …. 9.33 Sch …. 9.42 Hindmarsh Bridge Act 1997 …. 2.30 Human Rights and Equal Opportunity Commission Act 1986 Sch 4 …. 12.33 Human Rights and Equal Opportunity Commission Act 1986 Sch …. 13.18 Human Rights (Parliamentary Scrutiny) Act 2011 …. 12.39 Human Rights (Sexual Conduct) Act 1994 s 4(1) …. 13.30 International Arbitration Act 1974 s 15(2) …. 13.30 s 16(1) …. 13.15 International Criminal Court Act 2002 s 3(1) …. 13.15 International Labour Organisation Act 1973 s 3 …. 13.14 International Organizations (Privileges and Immunities) Act 1948 …. 13.33 International Wheat Agreement Act 1949 s 5 …. 13.14 Invalid and Old-Age Pensions Act 1908 s 21(1)(b) …. 12.14 Immigration Restriction Act 1901

s 3(a) …. 12.19 Judges and Governor-General Legislation Amendment (Family Law) Act 2012 …. 9.34 Judges’ Pensions Act 1968 …. 9.34 Judiciary Amendment Act 1984 …. 3.20 Pt VII s 47 …. 3.19 s 3 …. 3.19 Judicial and Statutory Officers (Remuneration and Allowances) Act 1984 …. 4.21 Judicial Misbehaviour and Incapacity (Parliamentary Commissions) Act 2012 …. 9.29 s 20 …. 9.29 Judiciary Act 1903 …. 4.20, 4.48 s 8 …. 4.46 s 39(2) …. 4.20 Judiciary (Diplomatic Representation) Act 1942 …. 4.46 Judiciary (Diplomatic Representation) Act 1977 …. 4.48 Jurisdiction of Courts (Cross-Vesting) Act 1987 …. 4.20 Jury Exemption Act 1905 s 2 …. 4.10 Jury Exemption Act 1965 s 4(1) …. 4.10, 6.32 Sch …. 4.10, 6.32 Law Enforcement Integrity Commissioner (Consequential Amendments)

Act 2006 ss 41–44 …. 11.4 Law Reform Commission Act 1973 s 12(1)(c) …. 4.47 Marriage Act 1961 …. 12.57 s 5 …. 12.57 Migration Act 1958 s 88A …. 13.15 s 501 …. 13.17 s 501(2) …. 12.35 Ministers of State Act 1952 …. 8.23 Native Title Act 1993 …. 2.22, 2.23, 2.31, 13.8 s 211 …. 2.23 Nauru (High Court Appeals) Act 1967 …. 5.19 Nauru Independence Act 1967 s 4(2) …. 5.19 Norfolk Island Act 1979 s 20 …. 6.3 s 53 …. 9.21 s 55 …. 9.21 Norfolk Island Legislation Amendment Act 2015 …. 1.30, 5.11 Northern Territory (Land Rights) Act 1976 …. 2.18 Northern Territory (Self-Government) Act 1978

s 12 …. 6.3 s 16 …. 7.7 s 17 …. 7.7 s 30 …. 6.6 s 41 …. 8.13 Nuclear Non-Proliferation (Safeguards) Act 1987 s 3 …. 13.15 Ombudsman Act 1976 …. 11.8 Pt IIA …. 11.3 s 3A …. 11.1 s 3C …. 11.17 s 4(3) …. 11.6 s 4(4) …. 11.6 s 4(5) …. 11.6 s 4(6) …. 11.6 s 5(1)(b) …. 11.15 s 5(1)(c) …. 11.5 s 5(2)(a) …. 11.19 s 5(2)(aa) …. 11.19 s 5(2)(b) …. 11.18 s 5(2)(b)–(c) …. 11.18 s 6(1)(a) …. 11.16 s 6(1)(b) …. 11.16

s 6(1)(b)(ii) …. 11.15 s 6A …. 11.16 s 7(1) …. 11.15 s 8A …. 11.16 s 9 …. 11.25 s 11A(1) …. 11.31 ss 13–14 …. 11.25 s 15(1) …. 11.30 s 15(2) …. 11.30 s 16 …. 8.19 s 19B …. 11.6 s 19L …. 11.6 s 19ZI …. 11.6 s 21(1) …. 11.13 s 22(1) …. 11.13 s 28(1) …. 11.13 s 31 …. 11.14 s 37 …. 11.31 Ombudsman Regulations 1977 reg 8(a) …. 11.14 Overseas Missions (Privileges and Immunities) Act 1995 …. 13.33 Ozone Protection and Synthetic Greenhouse Gas Management Act 1989 s 3(a) …. 13.15

Parliamentary Counsel Act 1970 …. 1.28 Parliamentary Counsel and Other Legislation Amendment Act 2012 …. 1.28 Parliamentary Papers Act 1908 …. 6.6 s 4(1) …. 6.27 Parliamentary Precincts Act 1988 …. 1.29, 6.4, 6.34 Parliamentary Privileges Act 1987 …. 5.10, 6.4 s 4 …. 6.2 s 5 …. 6.5 s 7(2) …. 6.20 s 7(5) …. 6.20 s 8 …. 6.10 s 9 …. 6.21 s 14 …. 6.31 s 14(4) …. 6.31 s 16(1) …. 6.26 s 16(2) …. 6.27 Parliamentary Proceedings Broadcasting Act 1946 s 15 …. 6.25 Petroleum (Australia–Indonesia Zone of Cooperation) Act 1990 s 3 …. 13.15 Public Service Act 1999 s 21 …. 8.19 Punishment of Offences Act 1901 …. 4.22

Quarantine Act 1908 …. 3.16 Racial Discrimination Act 1975 …. 2.20, 2.30, 4.30, 12.56 Royal Commissions Act 1902 …. 8.37 Royal Powers Act 1953 …. 8.5 Royal Style and Titles Act 1973 …. 8.2 Same-Sex Relationships (Equal Treatment in Commonwealth Laws — General Law Reform) Act 2008 …. 12.57 Same-Sex (Equal Treatment in Commonwealth Laws — Superannuation) Act 2008 …. 12.57 Seamen’s Compensation Act 1911 …. 5.53 Seas and Submerged Lands Act 1973 …. 5.54 Sex Discrimination Act 1984 …. 12.56 s 44 …. 3.11 Statute of Westminster Adoption Act 1942 …. 1.32, 5.53 Succession to the Crown Act 2015 …. 1.25, 8.3 Supreme Court Act 1933 s 4(2)(a)(ii) …. 9.21 Taxation Administration Act 1953 …. 8.75 Tax Bonus for Working Australians Act (No 2) 2009 s 51(xxxix) …. 8.75 Telecommunications (Interception) Act 1979 …. 4.50 Territories Law Reform Act 1992 s 8A(1) …. 5.50 Tobacco Plain Packaging Act 2011

s 14 …. 5.5 Treaty of Peace Act 1919 s 2 …. 13.15 United Nations Relief and Rehabilitation Administration Act 1944 s 4 …. 13.14 Year 2000 Information Disclosure Act 1999 …. 1.4

AUSTRALIAN CAPITAL TERRITORY Administrative Appeals Tribunal Act 1989 …. 10.23 Administrative Decisions (Judicial Review) Act 1989 …. 10.7 Australian Capital Territory (Ministers) Act 2013 s 3(2) …. 8.23 Consumer Credit (Administration) Act 1996 s 74(4) …. 12.35 Crimes Act 1900 s 557 …. 8.40 s 557(1) …. 8.15 Discrimination Act 1991 s 109 …. 3.11 Electoral Act 1992 s 100 …. 7.7 s 110 …. 7.55 s 156A …. 7.62 Interpretation of Acts Act 1967

s 22 …. 8.14 Judicial Commissions Act 1994 …. 9.27 s 5(1) …. 9.27 s 5(2) …. 9.29 s 5(3)(c) …. 9.29 Juries Act 1967 s 11 …. 6.32 Legislative Assembly Precincts Act 2001 …. 6.34 s 5(2) …. 6.4 Ombudsman Act 1989 s 5(2)(b)–(c) …. 11.18 s 6(1)(a) …. 11.16 s 6(1)(b) …. 11.16 s 9 …. 11.25 s 11 …. 11.25 s 18(1) …. 11.30 s 18(2) …. 11.30 s 31 …. 11.31 s 36 …. 11.31 Rules of the Supreme Court O 55 …. 10.6 Supreme Court Act 1933 s 4(2)(a)(i) …. 9.21

s 4(4) …. 9.23

NEW SOUTH WALES Administrative Decisions Review Act 1997 …. 10.2 s 63(1) …. 10.8 Administrative Decisions Tribunal Act 1997 s 64(2) …. 8.19 s 64(5) …. 8.19 s 73(2) …. 12.35 s 125(1)(b) …. 6.6 Anti-Discrimination Act 1977 Pt 3 …. 12.26 s 126 …. 3.11 Australia Acts (Request) Act 1999 …. 5.10 Child Protection (Offenders Registration) Act 2000 s 25 …. 11.6 Community Protection Act 1994 …. 4.32 s 3(1) …. 4.32 s 5(1) …. 4.32 s 14 …. 4.32 Constitution Act 1855 …. 10.18 Constitution Act 1902 …. 5.36, 6.3, 7.16 Pt 9 …. 5.36, 9.32 s 3 …. 5.12, 7.5

s 5 …. 5.4, 5.14 s 7A(1) …. 5.36 s 7A(2) …. 5.25 s 7B …. 5.36 s 7B(1) …. 9.32 s 8A(2) …. 8.5 s 9F …. 8.1 s 10 …. 8.32, 8.49 s 11B …. 5.36 s 13A …. 7.16 s 13A(1)(a) …. 6.12, 7.27 s 13B …. 4.14 s 13B(1) …. 4.15 s 13B(2) …. 7.20 s 13C …. 4.13 s 15 …. 6.6 s 22B …. 7.6 s 23 …. 8.32, 8.49 s 24 …. 7.7 s 24A …. 7.7 s 24B …. 7.7 s 26 …. 5.36 s 27 …. 5.36

s 28 …. 5.36 s 29 …. 5.36 s 35A …. 8.58 s 35B …. 8.17 s 35C …. 8.17 s 35C(1) …. 8.33 s 35D(3) …. 8.17 s 35E(1) …. 8.19, 8.33 s 38A …. 4.13 s 38B(1) …. 8.19 s 49A(1) …. 8.4 s 51 …. 5.1 ss 52–56 …. 5.36, 9.1 s 53 …. 9.1, 9.32 s 53(2) …. 9.27 s 55(2) …. 9.24 s 56 …. 9.32 Constitution Amendment Act 1929 s 7A …. 5.25 s 7A(2) …. 5.25 Constitution Amendment Act 2000 s 13A(3) …. 6.10 Constitution Amendment (Recognition of Aboriginal People) Act 2010

s 3 …. 2.36 Child Protection (International Measures) Act 2006 s 5(2) …. 13.30 Cinematograph Films (Further Suspension) Act 1985 s 2 …. 3.8, 3.9 Crimes Act 1900 …. 3.21, 4.32 Criminal Appeal Act 1912 s 27 …. 8.48 Crimes (Threats and Stalking) Amendment Act 1994 s 3 …. 4.32 s 31 …. 4.32 Sch 1 …. 4.32 Criminal Assets Recovery Act 1990 s 10 …. 4.43 Criminal Procedure Act 1986 s 9 …. 12.34 Crown Proceedings Act 1988 s 3 …. 8.2 Election Funding and Disclosures Act 1981 ss 56–65 …. 7.37 Electricity Supply Act 1995 s 96B …. 11.3, 11.5 Evidence Act 1995

s 10(1) …. 6.6 s 15(1)(c) …. 8.25 s 15(2) …. 6.32 Freedom of Information Act 1989 s 52 …. 11.6 Sch 1 …. 8.19 Imperial Acts Application Act 1969 Sch 1 …. 8.49 Independent Commission Against Corruption Act 1988 s 2A …. 8.24 Interpretation Act 1967 s 14 …. 8.14 Interpretation Act 1987 s 13(b) …. 8.2 s 14 …. 8.17, 8.60 s 15 …. 8.23 s 30(1)(a) …. 8.43 s 34(2)(d) …. 13.30 Judges’ Pensions Act 1953 …. 9.34 Judges Retirement Act 1918 s 3(1) …. 9.24 Judicial Acts (Validating) Act 1929 …. 9.25 Judicial Officers Act 1986 …. 9.27

s 3 …. 9.1 s 41 …. 9.29 s 44(1) …. 9.23 s 44B …. 9.1 Jury Act 1977 Sch 2 …. 6.32 Local Government Act 1993 s 434A …. 11.6 Married Women (Lecturers and Teachers) Act 1932 …. 12.26 Ministers’ Salaries Act 1907 s 3 …. 8.19 National Parks and Wildlife Act 1974 s 71D …. 3.21 Native Title (New South Wales) Act 1994 …. 2.22 Oaths Act 1900 Sch 4 …. 9.42 Ombudsman Act 1974 s 6(2) …. 11.13 s 6(3)(a) …. 11.13 s 6(3)(b) …. 11.13 s 6(4)(a) …. 11.13 s 6(4)(c) …. 11.13 s 6(5) …. 11.13

s 6(6) …. 11.14 s 12 …. 11.18 s 12(2) …. 11.15 s 13(4)(b)(i)–(ii) …. 11.16 s 13(4)(b)(iv) …. 11.16 s 13A …. 11.25 ss 18–20 …. 11.25 s 19(2) …. 11.25 s 21A …. 11.25 s 25C(1)(a) …. 11.15 s 26(1) …. 11.30 s 26(2) …. 11.30 s 26A …. 11.30 s 35A …. 11.31 Sch 1 …. 11.18 Sch 1.22 …. 11.18 Parliamentary Commission of Inquiry Act 1986 …. 9.27 Parliamentary Electorates and Elections Act 1912 …. 7.69 s 17A …. 7.30 s 20A …. 7.44 s 20B …. 7.44 s 20C …. 7.44 s 21 …. 7.46

s 81F …. 7.54 s 99 …. 7.60 s 103 …. 7.28 s 151A …. 7.67 Parliamentary Evidence Act 1901 s 4 …. 6.24 Parliamentary Papers (Supplementary Provisions) Act 1975 s 8 …. 6.6 Parliamentary Precincts Act 1997 …. 1.29, 6.4, 6.34 Police Integrity Commission Act 1996 s 3 …. 8.24 Police Powers (Internally Concealed Drugs) Act 2001 s 43 …. 11.6 Police Service Act 1990 s 167 …. 11.6 Public Finance and Audit Act 1983 s 21 …. 11.35 s 27B …. 11.37 s 27B(6) …. 11.38 s 48A(1) …. 11.36 Sch 1 Pt 1 …. 11.36 Royal Commissions Act 1923 …. 8.37, 11.25 Sale of Goods (Vienna Convention) Act 1986 …. 13.15

Senator’s Elections Act 1903 s 3 …. 8.51 Sentencing Act 1989 s 53 …. 8.48 Solicitor-General Act 1969 s 3(1)(a) …. 8.64 Special Commissions of Inquiry Amendment Act 1997 …. 6.37 Statutory and Other Offices Remuneration Act 1975 …. 9.33 s 11(3) …. 9.33 Supreme Court Act 1970 s 26(1) …. 9.21 s 26(3)(b) …. 9.21 s 30(1) …. 9.44 Supreme Court Rules 1970 Pt 54 r 3(1)(a) …. 10.6 Sydney Grammar School Act 1854 s 13 …. 12.11 Telecommunications (Interception) (New South Wales) Act 1987 ss 12–13 …. 11.6 University of Sydney Act 1850 …. 12.11 University of Sydney Act 1989 s 31 …. 12.11 Workers’ Compensation Act 1926 …. 5.53

Women’s Franchise Act 1902 s 2 …. 12.23 Women’s Legal Status Act 1918 s 2 …. 12.23

NORTHERN TERRITORY Audit Act s 12A(1) …. 11.36 Anti-Discrimination Act 1994 s 59 …. 3.11 Defamation Act s 6 …. 6.6, 6.25 Electoral Act 2004 s 36 …. 7.55 Criminal Code Act s 302 …. 8.38 s 431 …. 8.48 Criminal Records (Spent Convictions) Act s 3 …. 8.40 s 3(f) …. 8.40 Crown Proceedings Act 1993 s 4 …. 8.2 Inquiries Act 1945 …. 11.25 Interpretation Act

s 18 …. 8.14 Juries Act s 11 …. 6.32 Sch 7 …. 6.32 Lands and Mining Tribunal Act s 11(2) …. 12.35 Legislative Assembly (Powers and Privileges) Act 1992 s 4 …. 6.5 s 5 …. 6.2 s 6(1) …. 6.26 s 6(2) …. 6.27 s 6(3) …. 6.27 s 7 …. 6.31 s 11(1) …. 6.25 ss 14–16 …. 6.4 s 16 …. 6.24 s 19 …. 6.24 s 21 …. 6.20 s 22 …. 6.20 s 23(2) …. 6.25 s 25(1) …. 6.20 s 25(2) …. 6.20 s 25(5) …. 6.20

s 26(1) …. 6.21 s 26(2) …. 6.40 s 26(3) …. 6.40 Sch 1 …. 6.4 Legislative Privileges Act …. 6.4 Ombudsman Act 1978 s 3(1) …. 11.19 s 3(1)(e) …. 11.18 s 4(4) …. 11.13 s 4(5) …. 11.13 s 4(6) …. 11.13 s 8 …. 11.13 s 15 …. 11.15 s 16(1) …. 11.15 s 18(1)(a)–(c) …. 11.16 s 18(1)(e) …. 11.16 ss 19–21 …. 11.25 s 20(1) …. 11.25 s 24 …. 11.25 s 26(1) …. 11.30 s 26(2) …. 11.30 s 31 …. 11.31 Parole Orders (Transfer) Act

s 10A …. 12.35 Rules of the Supreme Court O 56.01 …. 10.6 Supreme Court Act 1978 s 32(1)(a) …. 9.21 s 32(1)(b) …. 9.21 s 38 …. 9.23 s 40(1) …. 9.27 s 41(3) …. 9.33 s 41(4) …. 9.33

QUEENSLAND Aboriginals Protection and Restriction of the Sale of Opium Act 1897 …. 12.14 Acting Judges Act 1873 s 5 …. 4.15 Acts Interpretation Act 1954 ss 47–47F …. 8.15 s 14B(3)(d) …. 13.30 s 20(2)(a) …. 8.43 s 36 …. 8.14, 8.60 Anti-Discrimination Act 1991 s 7(a) …. 12.26 s 248(b) …. 3.11

Attorney-General Act 1999 s 7(1)(b) …. 8.38 s 8 …. 8.38 Auditor General Act 2009 s 8 …. 11.36 ss 17–18 …. 11.36 Australia Acts (Request) Act 1999 …. 5.10 Claims Against the Government Act 1866 …. 8.25 Commission of Inquiry Act 1950 …. 8.37 Constitution Act 1867 …. 1.8, 5.30 s 1 …. 5.30 s 2 …. 5.15, 5.30 s 2A …. 5.30, 7.5 s 2A(1) …. 5.12 s 11A …. 5.30 s 11A(2) …. 5.30 s 11B …. 5.30 s 16 …. 9.16 s 41 …. 6.24 s 53 …. 5.30 Constitution Act Amendment Act 1867 s 2 …. 5.31 Constitution Act Amendment Act 1934

s 3(1) …. 5.30 s 4 …. 5.31 s 4(1) …. 5.30 Constitution (Executive Actions Validity) Act 1988 …. 5.55 s 3 …. 8.15 Constitution of Queensland Act 2001 …. 5.30, 7.4 s 3 …. 5.30 s 6 …. 5.12 s 9 …. 6.4 s 9(1) …. 6.3 s 9(1)(b) …. 6.5 s 15 …. 8.32 s 21 …. 7.10 s 22 …. 7.23 s 27 …. 8.17 s 32(2) …. 8.6 s 34 …. 8.49 s 35 …. 8.33 s 35(2) …. 8.49 s 36 …. 8.41 s 36(3) …. 8.40 s 38 …. 8.4 s 39(1) …. 8.5

s 40 …. 4.19 s 40(2)(a) …. 8.11 s 40(2)(b) …. 8.11 ss 42–47 …. 8.19 s 42(1) …. 8.19 s 43(2) …. 8.49 s 43(4) …. 8.23 s 45(3) …. 8.19 s 46 …. 4.14 s 50(3)(b) …. 8.17 s 51 …. 8.15 s 56 …. 9.22 ss 56–63 …. 9.1 s 57 …. 5.27 s 59 …. 9.21 s 59(1) …. 9.21 s 59(2) …. 9.42 s 60(1) …. 9.21, 9.22 s 60(2) …. 9.23 s 61 …. 9.16 s 61(2) …. 9.27 s 61(2)(a)(b) …. 9.27 s 61(3)–(10) …. 9.27

s 62(2) …. 9.33 s 63(1) …. 9.31 s 63(2) …. 9.31 ss 70–78 …. 5.1 s 77 …. 5.30 s 78 …. 5.30 s 95(1) …. 8.1 Sch 1 …. 9.42 Sch 3 …. 8.1 Constitution (Preamble) Amendment Act 2010 s 4 …. 2.36 Constitutional Act Amendment Act 1890 s 2 …. 7.7 Crime and Corruption Act 2001 s 4 …. 8.24 Criminal Code 1899 s 14A …. 5.54 s 58 …. 6.6 s 80 …. 13.9 s 672A …. 8.40 Criminal Proceeds Confiscation Act 2002 s 30 …. 4.41 Criminal Justice Act 1989

s 77(c) …. 6.6 Crown Proceedings Act 1980 s 7 …. 8.2 s 17(1) …. 12.33 Dangerous Prisoners (Sexual Offenders) Act 2003 …. 4.39 Defamation Act 2005 s 27(2) …. 6.25 District Court of Queensland Act 1967 s 28AA …. 9.36 Electoral Act 1992 …. 7.45 Pt 7 …. 7.37 Pt 8A …. 7.38 Pt 9A …. 7.37 s 45 …. 7.30 s 64 …. 7.46 s 67 …. 7.47 s 73A …. 7.35 s 104C …. 7.59 s 110 …. 7.58 s 113 …. 7.28, 7.58 s 127 …. 7.74 s 163 …. 7.67, 7.72 s 166(2) …. 7.66

s 167 …. 7.66 ss 170–171 …. 7.66 Sch 1 …. 7.37 Electricity Act 1994 s 119(1)(a) …. 11.3 Fauna Conservation Act 1974 …. 2.23 Fisheries Act 1994 s 192(1) …. 12.35 Health Rights Commission Act 1991 …. 11.6 Imperial Acts Application Act 1984 s 5 …. 8.47 Sch 1 …. 8.47 Judges’ (Pensions and Long Leave) Act 1957 …. 9.34 Judges (Salaries and Allowances) Act 1967 …. 9.33 s 13(2)(a) …. 9.33 Judicial Review Act 1991 …. 10.2 s 38(2) …. 8.41 s 41(1) …. 10.6 Judicial Review Act 1998 …. 10.7 Jury Act 1995 s 4(3)(b) …. 6.32 Justice Legislation (Miscellaneous Provisions) (No 2) Act 1999 …. 9.36 Land Act 1962

s 5 …. 2.21 Legal Practice Act 1996 Pt 18 …. 11.3 Legal Practitioners Act 1905 …. 12.25 Legal Profession Act 2007 …. 9.38 Legislative Standards Act 1992 s 4(3)(b) …. 12.35 Native Title (Queensland) Act 1993 …. 2.22 Nature Conservation Act 1992 s 93 …. 3.21 Ombudsman Act 2001 …. 11.8 s 5 …. 11.2 s 5(b) …. 11.30 s 8 …. 11.19 s 7(1) …. 11.19 s 18 …. 11.19 s 18(1)(b) …. 11.15 s 19 …. 11.15 s 20(1)(c) …. 11.16 s 25(1)(b) …. 12.35 ss 28–29 …. 11.25 s 34 …. 11.25 s 44(2)(a) …. 11.25

s 44(2)(b) …. 11.25 s 49(2)(g) …. 11.30 s 50(1)(f) …. 11.30 s 58(2) …. 11.14 s 60 …. 11.13 s 61 …. 11.13 s 63(1) …. 11.12 s 66 …. 11.13 s 67 …. 11.13 s 72 …. 11.13 s 93 …. 11.31 Parliamentary (Judges) Commission of Inquiry Act 1988 s 4(1)(a) …. 9.27 Parliament of Queensland Act 1991 …. 6.6 Parliament of Queensland Act 2001 …. 7.4 s 1 …. 6.7 s 8 …. 6.5, 6.27 s 9 …. 6.27 ss 25–63 …. 6.4 ss 25–26 …. 6.24 s 37(1) …. 6.15 s 37(2) …. 6.18 s 39(1) …. 6.19, 6.20

s 40(2) …. 6.20 s 41 …. 6.21 s 42(1) …. 6.21 s 43 …. 6.21 s 44(2) …. 6.22 s 47(2) …. 6.23 s 55 …. 6.7 s 69 …. 4.14 s 64 …. 7.17 ss 66–68 …. 7.23 s 72 …. 6.12 s 72(1)(e) …. 4.13 s 72(1)(m) …. 7.27 s 73 …. 7.26 Parliamentary Committees Act 1995 …. 6.6 s 25 …. 6.24 Parliamentary Papers Act 1992 …. 6.6 s 3(1)(a) …. 6.26 Police Service Administration Act 1990 s 2(3)(f) …. 12.33 Queensland Civil and Administrative Tribunal Act 2009 s 20(1) …. 10.8 Queensland Coast Islands Declaratory Act 1985

s 3(a) …. 2.20 Queensland Law Society Act 1952 Pt 2B …. 11.3 Right to Information Act 2009 Sch 3.1 …. 8.19 Sale of Goods (Vienna Convention) Act 1986 …. 13.15 Stipendiary Magistrates Act 1991 s 21A …. 9.36 Senate Elections Act 1960 s 3 …. 8.51 Solicitor-General Act 1985 s 8(a)(i) …. 8.64 Statutory Instruments Act 1992 s 15(e) …. 13.30 Supreme Court Act 1867 s 21 …. 10.5 Supreme Court of Queensland Act 1991 s 12 …. 9.21 s 22(2)(b) …. 4.15 s 23(1) …. 9.23 s 23(2) …. 9.23 s 27AA …. 9.36 s 93LA(1) …. 9.38

Transport Operations (Marine Safety) Act 1994 s 211(1) …. 13.15 Uniform Civil Procedure Rules 1999 Ch 14 Pt 4 …. 10.6

SOUTH AUSTRALIA Aboriginals Act 1934–39 …. 12.14 Aboriginal Lands Parliamentary Standing Committee Act 2003 s 16 …. 6.6 Acts Interpretation Act 1915 s 23 …. 8.14, 8.60 Aborigines Act 1934–1939 …. 2.39 Administrative Decisions (Effect of International Instruments) Act 1995 …. 13.23 Australia Acts (Request) Act 1999 …. 5.10 Claims Against the Government Act No 12 of 1855–1856 …. 8.25 Commonwealth Places (Administration of Laws) Act 1970 s 4 …. 5.43 s 14(2) …. 5.43 Commonwealth Powers Act 1943 s 2 …. 5.10 Constitution Act 1934 …. 5.17, 5.32 s 4 …. 7.5 s 5 …. 5.12, 5.13

s 6(1) …. 8.32, 8.49 s 7 …. 5.13 s 8 …. 5.32, 6.5 s 8(a) …. 5.32 s 8(b) …. 5.32 s 9 …. 6.3 s 10A …. 5.32 s 13(2) …. 8.32, 8.49 s 17 …. 7.15, 7.17 s 17(1)(a) …. 6.12, 7.27 s 23 …. 8.17 s 28 …. 7.7 s 28A …. 8.67 s 29 …. 7.46 s 31 …. 7.10, 7.15, 7.17 s 31(1)(a) …. 6.12, 7.27 s 32 …. 5.32 s 38 …. 6.5 s 41 …. 5.32, 7.8, 8.67 s 42(2) …. 8.4 s 43 …. 7.27 s 43A …. 4.13 s 44 …. 4.15

s 45 …. 4.14 s 47 …. 4.13 s 48A …. 12.23 s 55 …. 6.6 s 64A …. 5.1 s 65(1) …. 8.23 s 65(2) …. 8.33 s 66(1) …. 4.14 s 66(2) …. 8.33 s 67A …. 8.19 s 74 …. 9.21 ss 74–75 …. 9.1 s 75 …. 9.27 s 77 …. 7.30 s 78(1)(a) …. 4.16 s 82 …. 7.29 s 88 …. 5.32 Constitution Amendment Act 1894 s 2 …. 12.23 s 4 …. 12.23 Constitution Amendment Act 1959 s 3 …. 12.23 Constitution (Recognition of Aboriginal Peoples) Amendment Act 2013 ….

2.36 Constitutional Powers (Coastal Waters) Act 1979 …. 5.54 Corporations (South Australia) Act 1990 s 18 …. 8.45 Courts Administration Act 1993 s 29(2) …. 4.16 Crimes at Sea Act 1998 …. 5.54 Crimes (Offences at Sea) Act 1980 s 6 …. 5.54 Criminal Law Consolidation Act 1935 s 173 …. 13.9 s 240 …. 6.6 Criminal Law (Forensic Procedures) Act 1998 s 50 …. 11.6 Crown Proceedings Act 1992 s 4(1) …. 8.2 Defamation Act 2005 s 25(2) …. 6.25 Education Act 1972 s 27(4) …. 12.33 Election of Senators Act 1903 s 3 …. 8.51 Electricity Act 1996

s 6A …. 11.5 s 6A(2) …. 11.3 Electoral Act 1985 s 31A …. 7.44 s 53A(3)(a)(i) …. 7.54 s 53A(3)(a)(ii) …. 7.54 s 54 …. 7.55 s 95(16)(b) …. 7.63 s 96(6)(c) …. 7.63 s 117 …. 7.66 Equal Opportunity Act 1984 s 92 …. 3.11 Evidence Act 1910 s 23 …. 6.24 Evidence Act 1929 s 67B(1) …. 6.24 Factories Act 1907 s 72 …. 12.20 Fair Work Act 1994 s 3(2) …. 13.30 Female Legal Practitioners Act 1911 …. 12.25 Flinders University of South Australia Act 1966 s 23 …. 12.11

Freedom of Information Act 1991 Pt 1 …. 8.19 Sch …. 8.19 Independent Commissioner Against Corruption Act 2012 s 5 …. 8.24 Industrial and Employee Relations Act 1994 Div 1 …. 11.3 s 154(2) …. 12.35 Judges’ Pensions Act 1971 …. 9.34 Juries Act 1927 Sch 3 …. 6.32 Juries Amendment Act 1965 s 7 …. 12.25 s 8 …. 12.25 Miscellaneous Leases Act 1872 s 1 …. 2.17 Motor Vehicles Act 1959 …. 5.44 National Parks and Wildlife Act 1972 ss 68C–68E …. 3.21 Native Title (South Australia) Act 1994 …. 2.22 Oaths Act 1936 s 11 …. 9.42 Off-shore Waters (Application of Laws) Act 1976 …. 5.54

Ombudsman Act 1972 s 3(1) …. 11.19 s 3(1)(a) …. 11.18 s 6(1) …. 11.13 s 6(2) …. 11.13 s 10(1) …. 11.13 s 10(2) …. 11.13 s 10(4)(e)–(h) …. 11.13 s 10(4)(g) …. 11.13 s 11(1) …. 11.14 s 13(2) …. 11.15 s 14 …. 11.15 s 16(1) …. 11.16 s 17(2) …. 11.16 s 17A …. 11.25 s 18 …. 11.25 s 19 …. 11.25 s 23 …. 11.25 s 25(1) …. 11.30 s 25(2) …. 11.30 s 30 …. 11.31 Parliamentary Committees Act 1991 s 25(2) …. 6.35

s 28 …. 6.6 s 28(1) …. 6.15, 6.35 s 31 …. 6.27, 6.38 Prohibition of Discrimination Act 1966 …. 12.55 Protection of Animals Act 1864 s 6 …. 2.17 Public Sector (Honesty and Accountability) Act 1995 …. 8.24 Public Finance and Audit Act 1987 s 6 …. 11.35 s 24(6) …. 11.36 s 27 …. 11.36 s 36 …. 11.37 s 37 …. 11.37 Remuneration Act 1990 …. 9.33 s 13 …. 9.33 Royal Commissions Act 1917 …. 8.37 Sale of Goods (Vienna Convention) Act 1986 …. 13.15 Serious and Organised Crime (Control) Act 2008 …. 4.42 s 10(1) …. 4.42 s 10(3) …. 4.42 s 14(1) …. 4.42 s 41(1) …. 4.42 Sex Discrimination Act 1975

s 4 …. 12.26 Sex Disqualification (Removal) Act 1921 …. 12.25 Solicitor-General Act 1972 s 6(a)(i) …. 8.64 South Australian Civil and Administrative Tribunal Act 2013 s 37 …. 10.8 Statutes Amendment (Universities) Act 1999 s 5 …. 11.19 Succession to the Crown (Request) Act 2013 …. 8.3 Supreme Court Act 1935 s 8(1) …. 9.21 s 9(1) …. 9.21 s 12(3) …. 9.33 s 12(4) …. 9.33 s 13A(1) …. 9.23 s 14 …. 9.44 s 17 …. 10.5 Supreme Court Act Amendment Act 1944 s 4 …. 9.24 s 13a …. 9.24 Supreme Court Civil Rules 2006 rr 199–201 …. 10.6 Technical and Further Education Act 1975

s 27(4) …. 12.33 Wrongs Act 1936 s 12(1) …. 6.25

TASMANIA Acts Interpretation Act 1931 s 43 …. 8.60 s 43(1) …. 8.17 Adoption Act 1988 s 86C …. 11.6 An Act to Restrain the Increase of Dogs 1846 …. 10.13, 10.16 Anti-Discrimination Act 1998 s 16 …. 12.26 s 57 …. 3.11 Audit Act 2008 s 3(a) …. 11.36 s 10(2) …. 11.36 Sch 1.7 …. 11.36 Australia Acts (Request) Act 1999 …. 5.10 Child Protection (International Measures) Act 2003 s 19 …. 13.30 Commissions of Inquiry Act 1995 …. 8.37, 11.25 Constitution Act 1934 …. 5.17, 5.33, 6.3 ss 4–7 …. 8.4

s 8 …. 8.14 s 8(2) …. 8.11 s 8A …. 8.23 s 8B …. 4.14 s 10 …. 5.12 s 12 …. 8.32, 8.49 s 14 …. 7.10, 7.46 s 17 …. 6.7 s 23 …. 5.33, 7.7 s 31(1) …. 4.13 s 32 …. 4.14 s 32(3) …. 4.15 s 34 …. 7.17 s 34(a) …. 6.12, 7.27 s 41A …. 5.33 s 43A …. 4.13 s 45A–45C …. 5.1 s 46(1) …. 12.57 s 46(2) …. 12.11 Constitution (Validation of Taxing Act) Act 1991 …. 5.55 Crown Proceedings Act 1993 s 4 …. 8.2 Defamation Act 2005

s 27(2)(a) …. 6.25 Deputy-Governor’s Powers Act 1912 s 4 …. 8.11 Electoral Act 2002 s 86 …. 7.55 Electoral Act 2004 Pt 3 …. 7.47 s 31 …. 7.46 s 84 …. 7.55 ss 158–165 …. 7.37 s 175 …. 7.66 s 177 …. 7.65 s 188 …. 7.69 s 205 …. 7.74 Electricity Ombudsman Act 1998 s 5 …. 11.3 Evidence Act 1910 s 23 …. 6.24 Freedom of Information Act 1991 s 24 …. 8.19 Health Complaints Act 1995 s 25 …. 11.6 Integrity Commission Act 2009

s 3 …. 8.24 Judges’ Contributory Pensions Act 1968 …. 9.34 Judicial Review Act 2000 …. 10.2, 10.7 Jury Act 1899 s 49 …. 8.38 Sch 1 …. 6.32 Legal Profession Act 1993 Div 4 …. 11.3 Legislative Council Electoral Boundaries Act 1995 …. 7.29 Local Government Act 1993 s 218(1)(c) …. 12.35 National Parks and Wildlife Act 1970 s 49A …. 3.21 Native Title (Tasmania) Act 1994 …. 2.22 Ombudsman Act 1978 s 4 …. 11.19 s 5(2) …. 11.13 s 5(3) …. 11.13 s 5(4) …. 11.13 s 5(8) …. 11.13 s 6(1) …. 11.13 s 12(2) …. 11.19 s 12(5)(b) …. 11.18

s 13 …. 11.15 s 15 …. 11.15 s 16 …. 11.15 s 19(1) …. 11.16 s 21(1)(a)–(c) …. 11.16 ss 24–25 …. 11.25 s 24(1) …. 11.25 s 27 …. 11.25 s 28(1) …. 11.30 s 28(2) …. 11.30 s 33 …. 11.31 Sch 1 …. 11.19 Parliamentary (Disclosure of Interests) Act 1996 s 24 …. 6.15 Parliamentary Privilege Act 1858 …. 6.3, 6.4 s 3 …. 6.18, 6.19, 6.20 s 5 …. 6.21 s 7 …. 6.21 ss 8–9 …. 6.22 s 10 …. 6.38 s 11 …. 6.23 Parliamentary Privilege Act 1885 …. 6.4 Parliamentary Privilege Act 1898 …. 6.4

Parliamentary Privilege Act 1957 …. 6.6 Parliamentary Privilege Amendment Act 2001 s 4 …. 6.24 Promissory Oaths Act 1869 s 4 …. 9.42 Senate Elections Act 1935 …. 8.51 Sentencing Act 1997 s 97 …. 8.48 s 98 …. 8.40 Solicitor-General Act 1983 s 7(a) …. 8.64 Stolen Generations of Aboriginal Children Act 2006 s 5 …. 2.40 Supreme Court (Judges’ Independence) Act 1857 s 1 …. 9.17, 9.27 Supreme Court Civil Procedure Act 1932 s 192(1) …. 9.44 Tasmanian University Act 1889 s 16 …. 12.11 Telecommunications (Interception) Tasmania Act 1999 s 15 …. 11.6

VICTORIA Adult Suffrage Act 1908

s 3 …. 12.23 s 4 …. 12.23 Administrative Law Act 1978 …. 10.2 s 8 …. 10.7 Attorney-General and Solicitor-General Act 1972 s 55(a) …. 8.64 Audit Act 1994 s 3A …. 11.37 s 7B …. 11.37 s 17(1) …. 11.36 Australia Acts (Request) Act 1999 …. 5.10 Bushfires Royal Commission (Report) Act 2009 …. 8.37 Charter of Rights and Responsibilities Act 2006 …. 3.1, 11.4, 12.50, 12.51 Pt 3 Div 3 …. 12.50 Pt 3 Div 4 …. 12.50 s 6(1) …. 12.50 s 7(2) …. 12.50, 12.51 s 25(1) …. 12.51 s 31 …. 12.50 s 32 …. 12.50, 12.51 s 32(1) …. 12.51 s 36 …. 12.51 s 44 …. 12.50

s 45 …. 12.50 Chinese Immigrants Statute 1864 …. 12.16 Constitution Act 1855 …. 1.20 Constitution Act 1975 …. 1.20, 7.22, 8.31 Pt III …. 5.27, 9.1 s 1A …. 2.36 s 8 …. 8.67 s 8(1) …. 8.32, 8.49 s 8(2) …. 8.32, 8.49 s 8(2)(b) …. 8.68 ss 9–11 …. 8.4 s 12A …. 8.11 s 15 …. 5.12 s 16 …. 5.16 s 18 …. 5.35 s 18(2)(b) …. 5.27 s 19(1) …. 6.5 s 19(2) …. 6.3 s 19(3) …. 6.5 s 20 …. 8.32, 8.49 s 28 …. 7.8 s 36 …. 4.13 s 38 …. 7.7

s 43 …. 6.7 s 44(2)(a) …. 4.15 s 44(2)(b) …. 4.13 s 44(3) …. 7.17 s 46 …. 6.12 s 46(b) …. 7.27 s 47 …. 4.13 s 48 …. 7.44, 7.46 s 49 …. 4.14 s 50 …. 8.33 s 52 …. 4.13 s 53 …. 4.14 s 61 …. 7.23 s 61A …. 7.26 s 66 …. 8.67, 8.68 s 74A …. 5.1 s 75B …. 5.1 s 75B(1) …. 9.21 s 75B(2) …. 9.21 s 77(1) …. 9.21, 9.27 s 77(2) …. 9.33 s 77(3) …. 9.23 s 77(3A) …. 9.23

s 77(4)(b)–(c) …. 9.23 s 77(4)(d) …. 9.23 s 82(6B) …. 9.33 s 84(1) …. 4.15 s 84(2) …. 4.15 s 85 …. 5.27 s 87AAB …. 9.1 ss 87A–88A …. 8.16 ss 87A–88C …. 8.15 s 87B(c) …. 8.17 s 87C(3) …. 8.17 s 87E …. 8.17 s 88 …. 8.33 s 94B(1) …. 11.36 s 94C(5) …. 11.36 Constitution Act 1976 …. 8.31 Constitution Act 1987 …. 8.31 Constitution (Appointments) Act 2009 …. 5.55 Constitution (Declaration of Rights and Freedoms) Act 1988 s 74AA …. 12.44 Constitution (Governor’s Powers) Act 1992 s 3 …. 8.11 Constitution (Parliamentary Reform) Act 2003

s 14 …. 8.70 s 17 …. 5.35 s 65 …. 8.70 s 65(5) …. 8.70 Constitution (Recognition of Aboriginal People) Act 2004 s 3 …. 2.36 County Court Act 1958 s 13(1) …. 4.15 County Court Statute 1869 …. 9.19 Crimes Act 1958 s 584 …. 8.48 Crimes at Sea Act 1999 s 4 …. 5.54 s 70A …. 13.9 Criminal Law Consolidation Act 1935 s 240 …. 6.6 Criminal Proceedings Act 1984 …. 3.20 s 3 …. 3.19 Crown Proceedings Act 1958 …. 8.2 Crown Remedies and Liabilities Act 1865 …. 8.25 Crown (Request) Act 2013 …. 1.25 Drugs, Poisons and Controlled Substances Act 1981 s 5 …. 12.51

General Rules of Procedure in Civil Proceedings 1996 O 56.01(1) …. 10.6 Electoral Act 2002 …. 5.35 Pt 7 …. 7.63 s 12 …. 7.42 s 22 …. 7.44 s 69(3)(aa) …. 7.54 s 69(3)(b) …. 7.54 s 69(4) …. 7.54 s 94(3) …. 7.62 s 117 …. 7.63 s 156 …. 7.66 ss 206–220 …. 7.37 Electoral Boundaries Commission Act 1982 s 5 …. 7.29 s 9 …. 7.30 Equal Opportunity Act 1977 s 16 …. 12.26 Equal Opportunity Act 1995 s 83 …. 3.11 Defamation Act 2005 s 27(2) …. 6.25 Freedom of Information Act 1982

s 28 …. 8.19 Gas Supply Act 1996 s 33G …. 11.3 Imperial Acts Application Act 1980 Sch …. 8.47 Independent Broad-Based Anti-Corruption Commission Act 2011 ss 5–6 …. 8.24 Information Privacy Act 2000 s 80 …. 11.6 Inquiries Act 2014 s 8 …. 8.48 s 18(2)(b) …. 6.6 s 137 …. 6.6 Interpretation of Legislation Act 1984 s 38 …. 8.2, 8.14, 8.60 Judicial Salaries Act 2004 …. 9.33 s 5(2) …. 9.33 Juries Act 2000 Sch 2(1)(h)(i) …. 6.32 Land Titles Validation Act 1994 …. 2.22 Legal Practice Act 1996 s 82 …. 11.3 Legal Profession Practice Act 1903

s 2 …. 12.25 Magistrates Court Act 1989 s 12(b) …. 9.1 Married Women’s Property Act 1870 …. 12.22 Ombudsman Act 1973 s 2 …. 11.19 s 3(4) …. 11.13 s 3(5)(b) …. 11.13 s 3(5)(d) …. 11.13 s 13(2) …. 11.4 s 13(3)(a) …. 11.18 s 14(1) …. 11.15 s 15(a) …. 11.16 s 15(b) …. 11.16 s 16 …. 11.15 ss 18–22 …. 11.25 s 23(1) …. 11.30 s 23(2) …. 11.30 s 29 …. 11.31 Schs 2–3 …. 11.19 Parliamentary Committees Act 2003 …. 6.6 s 50(1)(b) …. 6.35 Parliamentary Precincts Act 2001 …. 1.29, 6.4, 6.34

Public Administration Act 2004 …. 8.24 Public Prosecutions (Amendment) Act 1998 s 1(a) …. 8.38 Racial and Religious Tolerance Act 2001 s 1(a) …. 12.13 s 1(b) …. 12.13 Sale of Goods (Vienna Convention) Act 1986 …. 13.15 Senate Elections Act 1958 s 3 …. 8.51 Sentencing Act 1991 s 106 …. 8.48 Succession to the Crown (Request) Act 2014 …. 8.3 Supreme Court (Judges’ Retirement) Act 1937 s 2 …. 9.24 Supreme Court (Oath and Affirmation of Office) Regulations 2014 Sch …. 9.42 Swine Compensation (Partial Suspension) Act 1980 …. 3.8 University Act 1890 s 23 …. 12.11 Victorian Civil and Administrative Tribunal Act 1998 s 51(2) …. 10.8 s 98(1)(a) …. 12.35 Whistleblowers Protection Act 2001

s 107 …. 11.6 Womens’ Qualification Act 1926 …. 12.25 Wrongs Act 1958 s 3A(3) …. 6.6

WESTERN AUSTRALIA Anti-Corruption Commission Act 1988 s 5(5) …. 4.18 Auditor General Act 2006 s 7 …. 11.36 s 11 …. 11.36 Sch 1.7 …. 11.36 Australia Acts (Request) Act 1999 …. 5.10 Constitution Act 1889 …. 7.24 s 2 …. 5.34 s 2(1) …. 5.15 s 2(2) …. 5.12 s 3 …. 5.34, 8.33 s 4 …. 5.34 s 21 …. 8.33 s 34 …. 6.6 s 36 …. 6.3, 6.6 s 50 …. 5.34 s 50(2) …. 5.34

s 51 …. 5.34 s 54 …. 8.4, 9.21 ss 54–55 …. 9.1 s 55 …. 9.27 s 61 …. 5.40 s 73 …. 5.34 s 73(1) …. 5.34 s 73(2) …. 5.34, 10.34 s 73(2)(f) …. 5.34 s 73(2)(g) …. 5.34 s 74 …. 8.32, 8.49 Constitution Acts Amendment Act 1899 Pt 1 …. 4.15 Div 1 …. 4.15 s 8 …. 7.8 s 20 …. 7.10 s 21 …. 7.7 s 32 …. 7.17 s 34 …. 4.14 s 34(1)(a) …. 4.15 s 34(1)(b) …. 4.13 s 34(2) …. 4.13 s 38(g) …. 6.12, 7.27

s 39 …. 7.26 s 44A …. 4.14 s 44A(4) …. 8.19 Sch V …. 4.15 Constitution (Parliamentary Privileges) Amendment Act 2004 s 4 …. 6.5 s 7 …. 6.4, 6.5 s 36 …. 6.5 Courts Amendment (Parliamentary Secretaries) Act 1990 s 4 …. 8.19 s 44A(4) …. 8.19 Corruption and Crime Commission Act 2003 s 7A …. 8.24 Criminal Code Act 1899 s 672A …. 8.48 Crown Suits Act 1947 s 3 …. 8.2 s 8(4) …. 1.20 Deputy Governor’s Powers Act 1911 s 3 …. 8.11 Election of Senators Act 1903 s 3 …. 8.51 Electoral Act 1907

s 16G …. 7.30 s 18 …. 7.46 s 64 …. 7.52 s 67 …. 7.52 s 71 …. 7.7 s 77(1)(a) …. 7.54 s 84 …. 7.55 s 92 …. 7.58 s 129(3) …. 7.62 s 145(4)(b) …. 7.63 s 185 …. 7.70 s 199A …. 7.69 Electoral Distribution Act 1947 …. 5.28, 7.32 Electoral Reform (Election Funding) Act 2006 …. 7.37 Equal Opportunity Act 1984 ss 8–9 …. 12.26 s 135 …. 3.11 Defamation Act 2005 s 27(2) …. 6.25 Freedom of Information Act 1992 Sch 1.1 …. 8.19 Home Building Contracts Act 1991 s 24(3) …. 12.35

Interpretation Act 1984 s 5 …. 8.14 s 19(2)(d) …. 13.30 s 60 …. 8.17, 8.60 Judges’ Retirement Act 1937 s 3 …. 9.24 Judges’ Salaries and Pensions Act 1950 …. 9.33, 9.34 Juries Act 1957 Sch 2 …. 6.32 Justices Act 1902 …. 4.40 Marriage Act 1894 Amendment Act 1898 s 3 …. 12.10 Mining Act 1904–1957 s 291 …. 12.20 Native Title (State Provisions) Act 1999 …. 2.22 Ombudsman Act 1971 s 4A(1) …. 11.19 s 5(3) …. 11.13 s 5(5) …. 11.13 s 5(8) …. 11.13 s 6(1) …. 11.13 s 13(2)(d)–(l) …. 11.18 s 14(1) …. 11.19

s 15 …. 11.15 s 16 …. 11.15 s 17(5) …. 11.16 s 18(1) …. 11.16 ss 19–21 …. 11.25 s 20 …. 11.25 s 24 …. 11.25 s 25(1) …. 11.30 s 25(2) …. 11.30 s 30 …. 11.31 Parliament (Qualification of Women) Act 1920 s 2 …. 12.23 Parliamentary Buildings Site Reserve Act 1965 …. 6.4 Parliamentary Papers Act 1891 …. 6.6 s 1 …. 6.26 s 3A …. 6.27 s 3A(1) …. 6.26 Parliamentary Privileges Act 1891 …. 6.4, 6.6 s 2 …. 6.5 ss 4–5 …. 6.24 s 7 …. 6.24 s 8 …. 6.18, 6.19, 6.20 s 9 …. 6.21

s 11 …. 6.21 s 12 …. 6.22 ss 14–15 …. 6.23 Prisoners (Release for Deportation) Act 1989 s 7 …. 12.35 Royal Commissions Act 1968 …. 8.37 Rules of the Supreme Court 1971 O 56 …. 10.6 O 56 r 1(1)(a) …. 10.6 O 56 r 1(1)(b) …. 10.6 Sale of Goods (Vienna Convention) Act 1986 …. 13.15 Sentencing Act 1995 s 137 …. 8.48 Solicitor-General Act 1969 s 9(a) …. 8.64 State Administrative Tribunal Act 2004 …. 10.2 s 27(2) …. 10.8 Stamp Duties Act 1921 …. 5.53 Supreme Court Act 1935 s 8(1) …. 9.21 s 9(1) …. 9.21 Sch 2 …. 9.42 Succession to the Crown (Request) Act 2015 …. 8.3

Trespass on Crown Lands Act 1876 …. 2.8 Women’s Legal Status Act 1923 s 2 …. 12.23 Young Offenders Act 1994 s 163 …. 12.35

CANADA Bill of Rights Act 1960 …. 12.29 Canadian Constitution 1982 …. 12.53 Civil Marriage Act s 2 …. 12.57 s 3 …. 12.57 Migratory Birds Convention Act 1970 …. 3.9

HONG KONG Hong Kong Bill of Rights Ordinance 1991 …. 12.30

INTERNATIONAL Child Protection Convention …. 13.30 Convention of the Rights of the Child …. 13.21 Art 3 …. 13.21 International Covenant on Civil and Political Rights 1966 …. 13.18 Statute of the International Court of Justice Art 38(2) …. 13.6 UNCITRAL Model Law on International Commercial Arbitration 1985 …. 13.15

United Nations Convention on the Law of the Sea 1982 Art 10(c) …. 13.10 Universal Declaration of Human Rights 1948 …. 13.18 Vienna Convention on Consular Relations 1961 …. 5.48 Art 22 …. 5.48 Vienna Convention on Consular Relations 1963 …. 13.43 Vienna Convention on Diplomatic Relations 1961 …. 13.34, 13.37 Art 1 …. 13.34 Art 1(i) …. 13.39 Art 3(2) …. 13.38 Art 4(1) …. 13.37 Art 7 …. 13.34 Art 9(1) …. 13.42 Art 13(1) …. 13.40 Art 14 …. 13.34 Art 22 …. 13.38, 13.39 Art 27(2) …. 13.38 Art 27(3) …. 13.38 Art 30 …. 13.38 Art 31(1) …. 13.38 Art 32 …. 13.41 Art 39(1) …. 13.40 Art 39(2) …. 13.40

Art 41(1) …. 13.42 Art 41(3) …. 13.39 Art 45 …. 13.42 Art 46 …. 13.42 Vienna Convention on the Law of Treaties 1969 …. 13.29 Art 31 …. 13.27 Art 32 …. 13.27

NEW ZEALAND Marriage (Definition of Marriage) Amendment Act 2013 s 4 …. 12.57 s 6 …. 12.57 New Zealand Bill of Rights Act 1990 …. 12.29 s 4 …. 12.49 s 6 …. 12.29 Ombudsman Act 1962 …. 11.8 Pardon for Soldiers of the Great War Act 2000 …. 3.28

NORFOLK ISLAND Legislative Assembly Privileges Act 1987 …. 6.4 s 16 …. 6.27

UNITED KINGDOM Act of Settlement 1701 s 3 …. 9.7

Australia Act 1986 …. 1.32, 5.10, 5.20 s 1 …. 5.20 s 7(3) …. 8.27 s 7(4) …. 8.27 Australian Colonies Government Act 1850 …. 5.17, 7.4 Australian Constitutions Act 1850 Ch 59 …. 5.13 s 7 …. 5.12, 5.13 Australian Courts Act 1828 s 1 …. 9.8 s 3 …. 10.5 Australian Courts of Justice Act 1828 …. 10.14, 10.16 s 22 …. 10.14, 10.15 British North America Act 1867 …. 8.59 Colonial Laws Validity Act 1865 …. 5.24, 10.19, 10.21 s 2 …. 10.19 s 3 …. 10.19 s 4 …. 10.19 s 5 …. 5.24 Colonial Leave of Absence Act 1782 (Burke’s Act) …. 9.9, 9.13, 9.18 s 2 …. 9.8, 9.15 Commonwealth of Australia Constitution Act 1900 …. 5.10 s 9 …. 1.7, 1.16, 12.13

s 106 …. 1.16 s 116 …. 12.13 Defence Act 1842 …. 8.44 Demise of the Crown Act 1901 s 1(1) …. 8.4 Equality Act 2010 s 25A …. 12.57 Habeas Corpus Act 1640 …. 3.25 Habeas Corpus Act 1679 …. 3.25 Habeas Corpus Act 1816 …. 3.25 Human Rights Act 1998 …. 12.29, 12.37, 12.38, 12.67 s 3(2)(b) …. 12.49 s 4(6) …. 12.49 Marriage (Same Sex Couples) Act 2013 s 1 …. 12.57 s 2 …. 12.57 New South Wales Act 1823 c 96 s 2 …. 10.5 New South Wales Constitution Act 1842 …. 7.3 Parliamentary Elections Act 1868 s 11 …. 7.73 Roman Catholic Relief Act 1829 …. 12.10 Sex Disqualification (Removal) Act 1919 …. 12.25

South Australia Act 1842 …. 7.3 Statute of 1354 …. 12.33 Statute of Westminster 1931 …. 1.32 s 4 …. 5.20 s 3 …. 5.53 statutory Instruments Act 1986 Pt 1 s 3 …. 8.1 Succession to the Crown Act 2013 …. 1.25 s 1 …. 8.3 s 2(1) …. 8.3 Test Act 1673 …. 3.9 Toleration Act 1689 …. 12.10

UNITED STATES OF AMERICA Judiciary Act 1789 s 13 …. 10.25, 10.26 s 30 …. 10.27 s 33 …. 10.27 Toleration Act 1649 …. 12.10 United States Constitution …. 12.27

Abbreviations ADB Bennett and Castles BPP Clark

CPD CPP DNB Evans and Jack

HRA JRAHS LRC NSWPD NSWPP QPD QPP SAPD SAPP SPLR THRA UKPD

Australian Dictionary of Biography J M Bennett and Alex C Castles, A Source Book of Australian Legal History, LBC, Sydney, 1979 British Parliamentary Papers (Australian Series), Irish University Press reprint C M H Clark (ed), Select Documents in Australian History, 1788–1850, Angus and Robertson, Sydney, 1950 Commonwealth Parliamentary Debates Commonwealth Parliamentary Papers Dictionary of National Biography, United Kingdom Michael Evans and R Ian Jack, Sources of English Legal and Constitutional History, Butterworths, Sydney, 1984 Historical Records of Australia Journal of the Royal Historical Society of Australia Law Reports Commonwealth New South Wales Parliamentary Debates New South Wales Parliamentary Papers Queensland Parliamentary Debates Queensland Parliamentary Papers South Australian Parliamentary Debates South Australian Parliamentary Papers South Pacific Law Reports Tasmanian Historical Research Association Proceedings

VPD VPP WAPD WAPP

United Kingdom Parliamentary Debates Victorian Parliamentary Debates Victorian Parliamentary Papers Western Australian Parliamentary Debates Western Australian Parliamentary Papers

Contents Preface Table of Cases Table of Statutes Abbreviations

Chapter 1: The Scope of Public Law INTRODUCTION FORMS OF PUBLIC LAW Commonwealth Constitution State Constitution Acts Acts of Parliament Delegated or Subordinate Legislation Australian Common Law Constitutional Practice International Law Martial Law CONSTITUTIONS AND CONSTITUTIONALISM THE CONSTITUTION PARTS OF THE CONSTITUTION The Legislature The Judiciary

The Executive Government The Crown Governor-General of the Commonwealth and the Governor of a state Prime Minister of the Commonwealth and the ministers Public service FEDERALISM SOVEREIGNTY AND INDEPENDENCE THE AUSTRALIAN ADVANTAGE Attitude Towards Power A Long Period of Constitution-Making Growth of Political Stability Political Moderation and Flexibility A Basic Awareness, and Acceptance, of the Constitutional Order by the General Populace

Chapter 2: Indigenous Australians and Public Law INTRODUCTION SOVEREIGNTY BY SETTLEMENT International Law on the Acquisition of Colonies in the 18th Century Terra Nullius as an International Law Concept British Perceptions of Australia Mabo Treatment of Terra Nullius LAND RIGHTS

Land Rights Pre-Mabo The Push for Legal Recognition of Native Title Mabo Post-Mabo Developments WHETHER ABORIGINES ARE SUBJECT TO THE LAW: SOVEREIGNTY Application of the Criminal Law The 19th century debate The current position CONSTITUTIONAL RECOGNITION The Present Commonwealth Position Proposed Recognition in the Commonwealth Constitution Recognition in State Constitutions The Stolen Generation

Chapter 3: The Rule of Law INTRODUCTION RULE BY LAW VS RULE BY MEN NO SUSPENSION OF, OR DISPENSING WITH, THE LAWS BY THE EXECUTIVE No Suspension of the Laws by the Executive No Dispensing with the Laws by the Executive MODERN AUSTRALIAN JUDICIAL DISCUSSION DICEYEAN THEORY JURISPRUDENTIAL DISCUSSIONS

THE INTERNATIONAL DIMENSION

Chapter 4: Separation of Powers and Judicial Power INTRODUCTION EMERGENCE MONTESQUIEU Montesquieu in Australia POSITION IN COMMONWEALTH CONSTITUTIONAL LAW POSITION IN THE STATES History Avoidance of the Multiple Holding of Parliamentary Seats Partial Separation of Executive and Legislative Power Substantial Separation of Judicial and Legislative Power Separation of Judicial and Executive Power JUDICIAL POWER OF THE COMMONWEALTH Judicial Power in General THE TWO BASIC PRINCIPLES Judicial Power of the Commonwealth Cannot be Exercised by a Body Other than a Court Federal Courts Cannot Exercise Non-Judicial Powers CONSTITUTIONAL PRACTICE: THE APPOINTMENT OF FEDERAL JUDGES TO EXECUTIVE FUNCTIONS 1940–76 EXCEPTIONS TO THE BOILERMAKERS’ PRINCIPLES Persona Designata

Limits to the persona designata rule Contempt Power of the Commonwealth Parliament Military Justice Limits to the military justice exception

Chapter 5: Legislative Power INTRODUCTION THE COMMONWEALTH DIMENSION Commonwealth Legislative Power Exclusive powers Concurrent powers The Commonwealth Constitution denies to the states certain legislative powers The Commonwealth Constitution denies to the Commonwealth certain powers Movement of the federal boundary Non-s 51 legislative power THE LEGISLATURE LEGISLATIVE POWERS OF THE STATES Source of State Legislative Power South Australia New South Wales Western Australia and Queensland Victoria

Tasmania Scope of the Legislative Power: Peace, Order and Good Government LIMITS ON STATE LEGISLATIVE POWER Limitation 1: The Commonwealth Constitution Limitation 2: Manner and Form Manner and Form Requirements by Jurisdiction Queensland South Australia Tasmania Western Australia Victoria New South Wales Limitation 3: Territoriality The reach of state laws within the state’s land boundaries Secession Commonwealth places Exception: diplomats Exception: visiting forces State laws are normally confined to the boundaries of the state Criminal laws Territorial waters Validating Void Legislation

Chapter 6: Parliamentary Privilege

INTRODUCTION THE PRIVILEGES OF PARLIAMENT Control Over Members Control Over Strangers or Visitors Power to Summon and Punish for Contempt of Parliament Power to Summon Witnesses and Compel Evidence Immunity from Defamation: Free Speech in Parliament Immunity from Arrest and Attendance before Courts Scope of the Privilege: The Precincts The Privileges May Be Waived Each House of a Bicameral Parliament May Judge its Own Privileges THE EMERGING RIGHT OF REPLY

Chapter 7: Electing the Legislatures INTRODUCTION DEVELOPMENT OF ELECTED LEGISLATURES PARLIAMENTARY STRUCTURE DURATION WHO CAN BE ELECTED FOR PARLIAMENT? Eligibility Criteria Disqualification Financial standing Foreign allegiances Criminal conduct

Conflicts of interest Government employment Commercial dealings with the government Vacation of a seat ELECTORAL SYSTEM ELECTORAL REDISTRIBUTION POLITICAL PARTIES ELECTIONS Administration of Elections The Right to Vote Disqualifications Compulsory enrolment and voting Calling Elections Nomination Process Voting Before polling day Polling day Offences Protecting the voting process Ensuring a ‘free’ choice Court of Disputed Returns Disputed elections Judicial review

Chapter 8: The Executive INTRODUCTION PARTS OF THE EXECUTIVE The Crown Governor as the Crown Representative Deputy Governor Administrator to the Government in the States The Term ‘Executive’ Executive Council Cabinet and the Premier Ministers The Public Service POWERS OF THE EXECUTIVE General Functions of the Governor To assent to Bills passed by the parliament To summon, prorogue and dissolve parliament To remove or suspend from office persons appointed under the authority of the Crown To exercise the prerogative of mercy The Royal Prerogative Scope Extent Review by the courts

Displacement or Ouster of the Royal Prerogative Abolition Displacement Loss by desuetude Retention of the prerogative Appointing ministers and members of the Executive Council Issuing writs for state or territory elections Issuing writs for the election of senators from the state or territory Exercising statutory powers conferred upon the Governor or the Governor in Council Making regulations and issuing proclamations The conduct of ceremonial functions Review by the courts CONVENTIONS OF THE CONSTITUTION Conventions: The Governor Acts on the Advice of the Ministry Exception: Reserve Powers and Constitutional Crises Reserve powers Dismissal Dissolution NO POWER TO TAX WITHOUT LEGISLATIVE ASSENT Authorisation to Spend Public Monies

Chapter 9: Judicial Independence INTRODUCTION

THE PRINCIPLE RATIONALE ORIGINS APPOINTMENT STATUS RETIREMENT SUSPENSION DISMISSAL ABOLITION OF OFFICE SALARIES, ALLOWANCES AND PENSIONS PROVISION OF NECESSARY SUPPORT AND STAFF JUDICIAL IMMUNITY JUDICIAL SELF-RESTRAINT JUDICIAL BIAS Exceptions to the Doctrine

Chapter 10: Judicial Review INTRODUCTION MEANING ORIGINS Judicial Review of Administrative Action Judicial Review of Primary Legislation 19th century Australian example Justice Booth by and the constitutional crisis in South Australia

The federal element Constitutional Review of Commonwealth Legislation Section 51 cases Bank Nationalisation case Communist Party case Parliament does not interpret the Constitution

Chapter 11: The Ombudsman and the Auditor-General INTRODUCTION THE OMBUDSMAN Origins Appointment, Term of Office and Removal How Investigations Start Jurisdiction Excluded agencies A matter of administrative action Powers Determinations Review by the courts Practice THE AUDITOR-GENERAL Independence Functions Limits on the Jurisdiction of the Office

Review of the Office

Chapter 12: Human Rights INTRODUCTION RIGHTS LANGUAGE Indigenous Australians Asians and Others Women THE BILL OF RIGHTS DEBATE IN AUSTRALIA TYPES OF BILLS OF RIGHTS THE COMMONWEALTH THE STATES Queensland 1959 South Australia 1972–73 Victoria 1988 New South Wales 2001 Victoria 2006 Queensland 2015 THE POLITICAL FORTUNES OF A BILL OF RIGHTS THE AUSTRALIAN SOLUTION Limited Rights in the Constitution Passage of Specific Acts on Specific Problems Continued Reliance on Common Law Principles Application of international human rights norms not incorporated into

domestic legislation ARGUMENTS FOR A BILL OF RIGHTS Defects of Democracy Judicial Action and Legislative Inaction Minority Protection Educative Value Bringing Australia in Line with International Trends ARGUMENTS AGAINST A BILL OF RIGHTS It is not Part of the Parliamentary Tradition It Would Politicise the Courts It Would Limit Rights It Would Undermine Parliamentary Sovereignty It Will Increase Litigation It Could Intrude into Private Organisations

Chapter 13: Public International Law INTRODUCTION Australia’s International Position FORMS OF INTERNATIONAL LAW Customary International Law Treaties and Other International Instruments Tests for determining whether a treaty is part of domestic law Areas of International Law that are not Part of Australian Law Unincorporated Treaties in Public Law

USE OF TREATIES TO DEVELOP THE COMMON LAW OF AUSTRALIA USE OF TREATIES TO INTERPRET DOMESTIC LEGISLATION AUSTRALIAN LAW ON DIPLOMATIC IMMUNITY Origins Statutes DIPLOMATIC IMMUNITY Persons Covered Activities Covered Premises Covered When Immunity Starts and Finishes Waiver Persona Non Grata Consular Immunity SOVEREIGN IMMUNITY Foreign State Immunity in Australia The general rule Exceptions to the general rule Index

[page 1]

CHAPTER

The Scope of Public Law LEARNING OBJECTIVES In this chapter you will learn about: Sources of Public Law Constitutions Branches of Government Federalism Sovereignty Attitude Towards Power

1

[page 2]

Introduction 1.1

Australia is an independent, sovereign, federal, constitutional State with a system of parliamentary government under the rule of law. In this chapter, we will consider this statement as well as the shape of the Commonwealth Constitution and its main institutions. A major theme of this book is the way in which the law changes, yet in many fundamentals remains stable. Stable does not mean unchanging. Thus, while a principle may be very old, it is often reinterpreted and given a new character. Unlike technology, in which, for example, the latest iPhone is nearly always better than an earlier version, in law newer is not always better. The law embraces principles some centuries old in many cases. The Commonwealth Constitution, for instance, came into operation 115 years ago in 1901, while state Constitution Acts were first enacted 160 years ago. The concept of due process of law dates from 1354, while the notion that judges should conduct an unbiased hearing is even older and was enunciated in the 13th century. No one has suggested that these principles are out of date. Despite their age, these principles have not remained static and the law is not limited by medieval doctrine. For example, the High Court of Australia took the idea of judicial bias that has existed since the 11th century and recast it in a major case decided in 2000: Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; 176 ALR 644.

1.2

Most of the cases and statutes cited in this book are modern and date from the beginning of this century, but the principles were not invented in the 21st century and sometimes older material has to be considered, either because it continues to be used or because it

provides the necessary background to the current law. Lawyers, of course, are primarily interested in the present state of the law and most of the case law and statutes you will read are very recent even when the principle is very old. An old principle is likely to be shaped by subsequent history and given a new dress in modern conditions. The law, therefore, is not static or rigid, but flexible and adaptable. In short, as French CJ pointed out in 2009 in Pape v Commissioner of Taxation (2009) 238 CLR 1; 257 ALR 1 at CLR 60, [127], the Constitution ‘is not a locked display cabinet in a constitutional museum’. This understanding was expressed in 1945 by Sir Owen Dixon, who stated in Australian National Airways Pty Ltd and Guinea Airways Ltd v Commonwealth (1945) 71 CLR 29; [1946] ALR 1 at CLR 81: ‘[I]t is a Constitution we are interpreting, an instrument of government meant to endure and conferring powers expressed in general propositions wide enough to be capable of flexible application to changing circumstances.’ The Commonwealth Constitution is not designed to be a road map to every possible constitutional matter. Gleeson CJ explained in Re Patterson; Ex parte Taylor (2001) 207 CLR 391; 182 ALR 657 at CLR 402, [14]: For the framers of the Constitution to have descended into greater specificity would have imposed an unnecessary and inappropriate degree of inflexibility upon constitutional arrangements that need

[page 3] to be capable of development and adaptability. The deliberate lack of specificity is demonstrated by the absence of any reference to such prominent features of our democratic government as the office of Prime Minister, or the Cabinet.

The same general observation has been made of the state Constitutions, for they did not seek, as the Court of Appeal of New

South Wales recently put it in Stewart v Ronalds (2009) 76 NSWLR 99; 259 ALR 86 at NSWLR 110, [35] in relation to that state, to ‘reduce to statutory form all the law and conventions embodying and constituting the English Constitution (in 1855) and its local adaption (in 1902 and since)’. 1.3

The way the High Court has handled the relationship between the language of the Constitution and the present has been to distinguish between the connotation and the denotation of the words of the Constitution. The essential meaning of the Constitution must remain the same, although over time its language must be applied to situations not envisaged in 1901. Thus, words have a fixed connotation (meaning), but their denotation (the things to which they apply) may differ from time to time. This means that the attributes of the words used in the text do not vary but the things that possess those attributes arise over time in new situations, and this justifies the application of the text to these new situations: Street v Queensland Bar Association (1989) 168 CLR 461; 88 ALR 321 at CLR 537 (HCA). For example, in 1901 the naval and military forces of the Commonwealth (s 51(vi)) would not have included an air force since aircraft did not exist. But the things denoted by the phrase ‘the military and naval forces of the Commonwealth’ now includes an air force: Australian National Airways Pty Ltd and Guinea Airways Ltd v Commonwealth (1945) 71 CLR 29; [1946] ALR 1 at CLR 81.

1.4

This complex relationship between the past and the present means that there are two prejudices to avoid when dealing with the law. The first is that because a principle or a case is old, it must be irrelevant to present circumstances or is somehow, by virtue of its age, out of date. Sometimes this is true and the courts and parliaments have abolished doctrines that were centuries old. On the other hand, many legal principles that have stood the test of time despite their age remain current. Second, because a statute or case is very recent, it must not be

assumed that it is superior to anything that went before it. Often, the latest statute survives for a very short time. This may be by design, because of a change of government or because a different view of the matter has emerged. In 1999 the Year 2000 Information Disclosure Act 1999 (Cth) was passed to deal with the expected Y2K problem: that computer code written in the 20th century might not work with 21st century dates. It was thought, for example, that no ATM would work and that perhaps no electronic payments could be made at all. The legislation was designed to deal with this but the problem proved to be a non-issue and the legislation, of course, is no longer needed. But at the time, the issue was thought to be so serious that it required urgent action. [page 4] 1.5

In practice, the general law changes often: two-thirds of the roughly 1000 Acts of Parliament produced collectively by Australia’s 10 parliaments each year are amendments of previous statutes. The volume of statutes increased in 2015; the Commonwealth Parliament passed 165 Acts by December 14. The question is not whether a principle is old or new, but is it still current law. ‘Current’ means still in force and operative, not that it came into existence in this century or in your lifetime. The main source of change, apart from changing judicial doctrines, is statute. We live, after all, in an age of statutes, and whenever an issue arises, the first question is whether there is an enactment relevant to the issue. Where this is so, the next question is whether the statute is the latest amended version on the point. And since Australia has, as we shall see, a federal legal system with 10 separate parliaments, it is important to ascertain which area of law or jurisdiction is relevant to a particular question.

Forms of Public Law 1.6

Public law, then, is an amalgam of law, history, statutory interpretation and political practice: Shaw v Minister for Immigration and Multicultural Affairs (2003) 218 CLR 28; 203 ALR 143 at CLR 37, [12]. In practice, public law may be divided into constitutional and administrative law. We will concentrate on constitutional law, which in turn may be divided into Commonwealth (or federal) constitutional law on the one hand and state constitutional law on the other. In this book, we will consider principles applicable to both Commonwealth and state constitutional law.

COMMONWEALTH CONSTITUTION 1.7

The Constitution of the Commonwealth is to be found in s 9 of the Constitution of the Commonwealth of Australia Act 1900 (UK) and is the highest form of law in Australia. It is the statute that constituted the Australian federation by bringing into existence both the states (which formerly existed as colonies) and the Commonwealth tier of government. The 1900 Act constituted (that is, created) the three major branches of the Commonwealth system: the executive power, the legislative power and the judicial power. It also deals with relations between the states and territories on the one hand and the Commonwealth on the other.

STATE CONSTITUTION ACTS 1.8

Each of the states and territories has its own Constitution Act. These date from the 1850s in the case of New South Wales, Victoria, Tasmania and South Australia, from 1867 in Queensland and from 1889 in Western Australia. Prior to their enactment, the constitutional law of the colonies was a mixture of United Kingdom legislation and prerogative legislative instruments such as the Letters Patent issued in

Britain. Traditionally, the state Constitutions have consisted of ordinary statutes capable of being changed by an ordinary majority in the parliament and were thus thought of as [page 5] flexible or, as the Privy Council put it in relation to the Constitution Act 1867 (Qld), ‘uncontrolled’: McCawley v R [1920] AC 691 at 704–5, 714. As we shall see in Chapter 5, parts of the state Constitution Acts are entrenched, meaning that they can only be changed by a special procedure, usually either by a special majority in the parliament or by a referendum of the people. The position of the territories is different. In the first place, only three of them — the Northern Territory, the Australian Capital Territory and Norfolk Island — have elected legislatures and in this book we will concentrate on these three examples. The SelfGovernment Acts for the Northern Territory (1978), the Australian Capital Territory (1988–89) and Norfolk Island (1979) are Acts of the Commonwealth Parliament and are hybrid in that while they share many of the features of the state Constitution Acts, they also have features found in the Commonwealth Constitution. All other territories are either uninhabited (the Coral Sea Territory), sparsely inhabited (the Cocos Islands) or have temporary populations (Australian Antarctic Territory).

ACTS OF PARLIAMENT 1.9

Acts of Parliament deal with aspects of constitutional law not covered by the Constitution. Each Constitution Act does not exhaust the scope of constitutional law since other enactments of a constitutional nature

exist, especially those statutes constituting the courts, the electoral system, and other public offices such as the Attorney-General, the Director of Public Prosecutions, the Office of Parliamentary Counsel, the Auditor-General and the Ombudsman. There are also special Acts concerned to protect public authorities such as anti-corruption legislation, legislation on the powers and privileges of parliament, and Acts constituting public corporations such as the National Broadband Network and the Office of Climate Change.

DELEGATED OR SUBORDINATE LEGISLATION 1.10

Delegated or subordinate legislation is usually made by either the Governor-General or Governor on advice, or by a minister. While important in administrative law, it is less important in constitutional law. Parliaments cannot, for a variety of practical reasons, make all of the legislation necessary and some form of delegated legislation has existed since the 16th century. Generally, most Acts of Parliament confer a power to make delegated or subordinate legislation. Much of the detail of public law is to be found in delegated legislation, although most of it would not normally be thought of as constitutional. One clear exception to this are the rules of the superior courts, which include the various procedures by which official action may be challenged such as by judicial review or by habeas corpus. Normally, subordinate legislation includes regulations, rules of court, and the bylaws of local governments or universities. University statutes are also a species of delegated legislation and not, as the name might suggest, an enactment. [page 6]

AUSTRALIAN COMMON LAW

1.11

On arrival, British settlers brought with them the common law of England; that is, the branch of the law largely created by the judges over many centuries through legal cases. Common law has a number of meanings, including as a reference to a family of legal systems, but the above description gives the main sense of the term as it is commonly used. However, to complicate matters, the principles of equity — also judge-made but made by a different system of courts in England — were also brought to Australia on settlement. The principles of equity eventually crystallised into branches of substantive law and include such matters of interest to a public lawyer as the remedy of the injunction, which may in Australia be applied to public officers. Over time, the principles of common law and equity were modified either by Australian statutes or by decisions of Australian courts. Today, the position is that the ‘common law’ means Australian common law and the High Court has said several times that there is only one body of common law for the whole country: there is no such thing in Australia as a separate body of state common law or separate bodies of common law for each state: Lipohar v R (1999) 200 CLR 485; 168 ALR 8 at CLR 507–8, [51] (HCA). The common law develops through cases, and the High Court of Australia, as Australia’s highest court, has the power both to declare the common law for the country and to change the existing common law. It has exercised that power on many occasions, most notably in Mabo v Queensland (No 2) (1992) 175 CLR 1; 107 ALR 1 (HCA), in which the High Court declared that the common law doctrine that there was no such thing as native title because on settlement Australia was a terra nullius (empty land) was no longer part of Australian law and that henceforth the common law of Australia would recognise native title. The capacity of the High Court to enunciate the common law, however, is limited, as several judges have recently pointed out. In one

of the clearest statements of principle, Gaudron and McHugh JJ explained in Breen v Williams (1996) 186 CLR 71; 138 ALR 259 at CLR 115 (HCA): Advances in the common law must begin from the baseline of accepted principle and proceed by conventional methods of legal reasoning. Judges have no authority to invent legal doctrine that distorts or does not extend or modify accepted legal rules and principles. Any changes in legal doctrine brought about by judicial creativity, must ‘fit’ within the body of accepted rules and principles. The judges of Australia cannot, so to speak, ‘make it up’ as they go along. It is a serious constitutional mistake to think that the common law courts have authority to ‘provide a solvent’ for every social, political or economic problem. The role of the common law courts is a far more modest one. In a democratic society, changes in the law that cannot logically or analogically be related to existing common law rules and principles are

[page 7] the province of the legislature. From time to time it is necessary for the common law courts to reformulate existing legal rules and principles to take account of changing social conditions. Less frequently, the courts may even reject the continuing operation of an established rule or principle. But such steps can be taken only when it can be seen that the ‘new’ rule or principle that has been created has been derived logically or analogically from other legal principles, rules and institutions.

In short, in carrying out the judicial role in shaping the common law and equity, and in framing doctrines against which statutes are interpreted, the courts are guided by a skeleton of principle which is said to give the law its shape and internal consistency: Mabo v Queensland (No 2) (1992) 175 CLR 1; 107 ALR 1 at CLR 29 (HCA). One major constraint on judicial law-making is that the courts of the Commonwealth, at least, are only permitted to decide matters brought to them by parties. Judges do not initiate cases or consider interesting hypotheticals. Unlike Canada and Ireland, for example, the High Court of Australia does not give advisory opinions, and

legislation creating a power in the Governor-General to refer matters to the High Court for an advisory opinion has been struck down as contrary to the Constitution: Re Judiciary and Navigation Acts (1921) 29 CLR 257; 27 ALR 193 (HCA). The current position was laid out by Brennan J, who wrote in 1991: ‘Nowadays nobody accepts that judges simply declare the law; everybody knows that, within their area of competence and subject to the legislature, judges make law’: O’Toole v Charles David Pty Ltd (No 1) (1991) 171 CLR 232; 99 ALR 415 at CLR 236 (HCA). The judges, of course, operate within the constraints of the law and the Constitution and in accordance with accepted methods of argument and processes, as they have been at pains to point out on numerous occasions.

CONSTITUTIONAL PRACTICE 1.12

Sometimes called the conventions of the Constitution, constitutional practices are not laws strictly speaking, but practices that inform and explain the operation of the constitutional machinery. For example, once an election is called, the Caretaker Convention comes into operation. This means that during the period up to the election, the government will make only routine decisions and not introduce new policies. The reason for the convention is that major decisions made by the existing government should not be binding on the new government if it should be a different party from that of the government. Another key convention or practice is that the Governor-General of the Commonwealth and the Governor of a state act on the advice of the political executive, that is, the Prime Minister of the Commonwealth and the Premier of the state, as the case may be. These conventions will be explained further in Chapter 8. [page 8]

Conventions: Four Meanings 1.

A special meeting to draft a constitution, as in Australia in the 1890s.

2.

A practice, not law, that informs the constitutional system.

3.

A meeting of the two houses of parliament to discuss public business. There are no Australian examples and the last British example was in January 1688.

4.

In public international law, a collective treaty; for example, the International Convention on Civil and Political Rights 1966.

INTERNATIONAL LAW 1.13

International law will be discussed in detail in Chapter 13. The points to note here are, first, international law is not automatically part of our domestic law, or, as it is called in international law, our municipal law; and second, from the point of view of Australian public law, if there is a conflict between international law and domestic law, domestic law prevails. Nevertheless, international law does play an important part in our public law.

MARTIAL LAW 1.14

Strictly speaking, martial law is not a form of law at all but rather the law of the general. The concept refers to the displacement of the civil legal order by the military and has not been used in Australia since the 1840s. Martial law in the 19th century was regarded as a legitimate tool at the disposal of the colonial authorities to deal with civil unrest, but is extremely unlikely in modern conditions. Unlike a coup d’etat, which is an illegal takeover of the government by force, martial law was subject to regulations, though these were never put into operation in practice. The use of the military within Australia is now regulated by law. Under s 114 of the Commonwealth Constitution, the states may not raise or maintain a naval or military force ‘without the consent of the

Parliament of the Commonwealth’ and in practice the colonies, when they became states, handed over their military and naval forces to the Commonwealth in 1901. On the other hand, the Commonwealth by s 119 of the Constitution ‘shall protect every State against invasion and, on the application of the Executive Government of the State, against domestic violence’. The Commonwealth is not obliged to agree to provide the states with such protection and on one occasion refused to allow the army to be used in Queensland during a strike in 1912: Correspondence on the Subject of the Application by the State Governor for Protection from the Commonwealth During the Recent General Strike, QPP No 20 of 1912, 27. The army was deployed to deal with terrorism in February 1978 when the New South Wales Government made a request to the Commonwealth Government for troops following bomb blasts outside the Hilton Hotel in Sydney: Commonwealth Gazette, No S30, 14 February 1978. The most common contemporary use of the military within Australia in peacetime is to aid the civil authorities during [page 9] emergencies such as flooding when remote communities are inundated during the rainy season. The most recent example of this took place in January 2013 when RAAF Blackhawk helicopters rescued people during the Queensland floods. There are special provisions in ss 51–51G of the Defence Act 1903 (Cth) to authorise the call out of the military to deal with domestic violence.

Constitutions and

Constitutionalism 1.15

The word ‘constitution’ comes from the Latin word constituere, meaning to constitute, and in the modern context means a specific document that constitutes the main branches of government: the legislature, the executive and the judiciary. Constitutions have been classified as either written or unwritten. This distinction contrasts constitutions found mainly or exclusively in a single written document (such as Australia) and those constitutions that are found in a range of legal sources (such as the United Kingdom). Most constitutions are written in a single document, and while the British Constitution is sometimes described as unwritten it is actually written, just not in a single document. It is to be found in a range of statutes and common law doctrines. Constitutions are also classified as those that are flexible, and thus may be changed quite easily, and those, such as the Commonwealth Constitution, that are rigid. This means that the Constitution can be changed only by a special procedure and, in Australia’s case, while this has been attempted 44 times it has only succeeded in eight referenda, the last in 1977. The rigidity of the Commonwealth Constitution should not be exaggerated; however, as we shall see, flexible elements exist in the Constitution. Among the very large variety of constitutions may be distinguished the following types: 1.

A constitution as a frame of government which in many cases also acts as a protector of rights where it includes a bill of rights. The United States Constitution is an example of this. The Australian Constitutions do not include a bill of rights (one of the few modern constitutions not to do so), though rights are scattered throughout them, but the Constitutions do provide a basic framework of government.

2.

A constitution as a revolutionary manifesto such as the Constitutions in former and present communist States such as Cuba.

3.

A constitution as a tempered political ideal, designed to meet longterm aspirations, such as the Constitutions in much of Latin America, which promise much.

4.

A constitution as a modern adaptation of an ancient traditional

constitution such as that found in the United Kingdom. Clearly, there are variants on each of these. Some Islamic States have based their Constitution on the Koran and other holy writings, so it must not be assumed that all constitutions are secular in nature.

[page 10]

The Constitution 1.16

Each Australian jurisdiction has a written constitution. In the case of the states, these date from the mid-1850s, though subsequently updated, while the Constitution of the Commonwealth was enacted in 1900 as s 9 of the Commonwealth of Australia Constitution Act 1900 (UK) and came into force on 1 January 1901. The states, then colonies, had Constitution Acts before 1901 and those Acts continued in force after 1901: s 106. Although some of the state Constitution Acts seem old (for example, Western Australia 1889, amended in 1899, and New South Wales 1902) they, along with the Constitution Acts of the other states (Tasmania 1934, South Australia 1934, Victoria 1975 and Queensland 2001) are amended often, in some cases as recently as 2014. Each Constitution creates the three main branches of government, explains how the branches are to come into being, and sets out many, but not all, of their legal powers. The Constitutions also explain how they are to be amended or changed. A notable omission in the Constitution Acts is a bill of rights, now common in overseas constitutions written after 1950. On the other hand, there are rights in the Commonwealth Constitution but not the type found in most modern bills of rights.

1.17

The Constitutions are not a complete account of constitutional law, for there are important principles of constitutional law outside these

Acts. In the case of the Commonwealth Constitution, important details were not included in 1900 and there are sections in the Constitution that allow for these details to be added by parliament later. An example is to be found in s 71, which allows the parliament to create further federal courts. This was first done in 1904 by creating the Commonwealth Court of Conciliation and Arbitration, followed in 1930 by the Federal Court of Bankruptcy, then subsequently by the Family Court of Australia in 1975, the Federal Court of Australia in 1977, and the Federal Magistrates Court in 1999 (renamed the Federal Circuit Court of Australia in 2012). The reason for not providing all of the necessary details in 1900 was practical since it was expected that institutional changes would become necessary as the country developed. The state of the Constitution in 1901 is also a warning not to expect a Constitution Act to be a complete road map or a description of all aspects of constitutional government. Thus, in 1901 s 66 set the salaries of ministers at £12,000 a year ‘until the Parliament otherwise decides’. Obviously, salaries were expected to rise and have done so in the 115 years since Federation. The Prime Minister is now paid $539,338 a year, a salary greater than that of the President of the United States. 1.18

In the case of the state Constitutions, important constitutional matters are provided for in other Acts of the State Parliament. For example, provisions in state legislation on the courts contain important protections for judicial tenure, an important part [page 11] of the principle of judicial independence, while in Western Australia,

Queensland, New South Wales and Victoria there are enactments on parliamentary precincts and privileges. 1.19

Some important elements of the political system are, somewhat surprisingly, not mentioned in the Constitutions. Thus, the Prime Minister of the Commonwealth is not mentioned in the Commonwealth Constitution, and the Premiers of the states are not mentioned (with the exception of Queensland) in the state Constitutions. The Cabinet and the concept of responsible government are not mentioned either. And although Australia is one of the world’s oldest and most successful democracies, the term ‘democracy’ is absent from the Constitution Acts. Despite these constitutional silences, these offices and institutions have a part in the constitutional order. The Prime Minister and the Premiers, along with other ministers, must be members of parliament and are formally appointed as ministers by the Governor-General/Governor, but on their own advice. The Cabinet, which is at the heart of the executive branch of a parliamentary system, is actually a non-statutory body where the ministers meet to determine policy. Once a decision has been taken in Cabinet, a small number of the ministers then meet separately with the Governor-General or Governor to tender formal advice in the Executive Council and in order to authorise the Governor-General or Governor to take legal action such as to make an appointment, give assent to a Bill passed by the parliament or issue a proclamation to declare war, for example. Although the Cabinet is not mentioned in the Constitution, it is frequently referred to in such legislation as the Freedom of Information Acts.

1.20 Australia is a democracy based on a system of representative government in which people who are citizens and of voting age elect members of parliament. The machinery for the electoral process is authorised by ss 9, 27, 29–30 of the Constitution (Aid/Watch Inc v Commissioner of Taxation (2010) 241 CLR 539; 272 ALR 417 at CLR

556, [44]; Wotton v Queensland (2012) 246 CLR 1; 285 ALR 1 at CLR 13, [20]), while the details are provided in electoral legislation, which is administered by state and Commonwealth electoral commissions. Many of the details of the system of representative government are not mentioned in the Constitution at all and the detail is to be found in electoral legislation, which was described in 2010 as evolutionary in character: Rowe v Electoral Commissioner (2010) 243 CLR 1; 273 ALR 1 at CLR 69–70, [198], [201]. The concept of responsible government is nowhere stated or expressly referred to in the current Constitution Acts, though in one state it is referred to in a statute (Crown Suits Act 1947 (WA) s 8(4)). In Victoria, it is indirectly referred to by the Constitution Act 1975 (Vic), which refers to the Constitution Act 1855 (Vic) in which the term appears. There is no doubt, however, that it is part of the constitutional law of every jurisdiction: Williams v Commonwealth of Australia (2012) 248 CLR 156; 288 ALR 410; Sneddon v The Speaker of the Legislative Assembly (2011) 208 IR 255 at 307, [255]; Lee v New South Wales Crime Commission (2013) [page 12] 251 CLR 196; 302 ALR 363 at CLR 210, [313], 259, [126]; Bare v IBAC [2015] VSCA 197 at [554]. 1.21

The term ‘responsible government’, despite not being amenable to precise definition (Stewart v Ronalds (2009) 76 NSWLR 99; 259 ALR 86 at NSWLR 110, [34]), refers to both an event and a concept. As an event, it refers to the introduction, in the 1850s, of a fully-elected legislature (the Lower House only, at first) in New South Wales and Victoria, and in both Houses in Tasmania and South Australia. Queensland (1867) and Western Australia (1889) followed later.

Conceptually, ‘responsible government’ refers to a particular relationship between the legislature and the executive and involves the following elements: The sovereign, or, in Australia, the Governor in the states and the Governor-General of the Commonwealth, must choose as ministers persons who enjoy the confidence of the Lower House of Parliament. This means in practice that the ministers come from the majority party, or a coalition of parties, that commands a majority in the Lower House. When or if the minister loses the confidence of the House, the minister must resign. This may come about because they lose a binding no-confidence motion in the House or they fail to pass key legislation such as the budget (which in law is called an appropriation or supply Act). Ministers must themselves be members of parliament. This, as we shall see, is provided for by law in all Australian Constitutions. The Governor or Governor-General, as a general rule, acts on the advice of the ministers. In practice, the working of responsible government assumes the effectiveness of political parties and party discipline within parliament. The parliaments themselves are wholly elected and are based on the related principle of representative government. The government is responsive to public opinion and is answerable to the electorate.

Parts of the Constitution

THE LEGISLATURE 1.22

As Australia has a parliamentary system, there is a strong emphasis in constitutional law on the legislature and its legal powers. These consist of both the matters on which it may legislate (called ‘heads of legislative power’ in the Commonwealth Constitution: see s 51) as well as on the internal law of parliament, called the privileges of parliament: ss 49, 50. [page 13]

Australia has the following legislatures: The Commonwealth Parliament, which is bicameral (two houses) consisting of the Lower House (the House of Representatives) and the Upper House (the Senate). Six state parliaments, five of which (New South Wales, Victoria, South Australia, Western Australia and Tasmania) have two chambers, while the Parliament of Queensland has been unicameral since 1922, that is, has one chamber only. Three territory unicameral legislatures: the Northern Territory, the Australian Capital Territory and Norfolk Island. The remaining territories do not have elected legislatures. Their legislation is provided by the Commonwealth.

Each of these 10 parliaments is responsible for a law area called a jurisdiction; for example, the jurisdiction of New South Wales. One obvious limitation to the jurisdiction or power of the six state and the three territory legislatures is geographical. They may only legislate for the territory concerned. Thus, a law made for Victoria, as a general rule, only applies to the territory of the State of Victoria. On the other hand, the Commonwealth Parliament may legislate for all of Australia and its territories, subject to restrictions that arise from the Constitution and the federal system.

THE JUDICIARY

1.23

Each jurisdiction has a hierarchy of courts that exercises judicial power in the interpretation and application of all forms of law. In particular, the superior courts have a role to play in constitutional matters. One key difference between the Commonwealth Constitution and the state Constitutions is that the Commonwealth Constitution is the highest form of law in Australia, and is therefore a higher form of law than Acts of the Commonwealth Parliament. This means that in the event of a conflict between the Commonwealth Constitution and an Act of the Commonwealth Parliament, the Constitution prevails. In the case of the High Court of Australia, the nation’s highest court, the judicial power extends to interpreting the Commonwealth Constitution and reviewing whether Commonwealth Acts of Parliament conflict with the Constitution: s 76(i). If the High Court should decide, as it has from time to time, that a Commonwealth Act is not authorised by the Constitution, it may strike down the Act as unconstitutional. Also, given the federal nature of the system, the High Court has the power to decide if a state Act conflicts with a Commonwealth Act. Both areas of judicial power involve judicial review. Aside from this power, the Commonwealth Constitution provides for the tenure of the federal judges. Thus, the judges must retire at 70 years of age, their [page 14] salary cannot be reduced during their tenure and they can only be removed by a resolution of each House of the Commonwealth Parliament on the grounds of proved misbehaviour or incapacity: s 72. These rules ensure the independence of the judiciary from the other branches of government and also reinforce the principle in the Commonwealth Constitution of the separation of powers.

The state judges are also guaranteed security of tenure and likewise may only be removed by a resolution of the Houses (or House in Queensland’s case) of Parliament. But with this difference: while the Commonwealth Constitution specifies two grounds for removal, the state Constitutions mention none. In theory, a state parliament could remove a judge for any reason or no reason at all, though in practice, as shown by the removal of Justice Vasta in Queensland in 1986, grounds are relied upon.

THE EXECUTIVE Government 1.24

In the narrow and most often used sense, ‘the government’ refers to the political executive; that is, the Prime Minister or Premier and the ministers who make up the Cabinet: Ryder v Foley (1906) 4 CLR 422; 13 ALR 441 at CLR 432 (HCA). However, in a wider sense, less often used in Australia but commonly used in the United States, the term refers to all of the branches of government, meaning the judiciary and the legislature as well as the executive. In a sense then, the judiciary is a part of the governmental machinery of the country even though it does not act at the behest of the executive and operates in practice independently of it. The executive consist of the following parts.

The Crown 1.25

Australia remains a constitutional monarchy. The monarch is Queen Elizabeth II, who under Australian law has the title ‘the Queen of Australia’. Australia has no succession legislation of its own and thus accession to the throne is determined by British rules of succession. For several centuries, this gave priority to male heirs over females, but in 2011 it was agreed after the Commonwealth Heads of Government meeting in Perth that the British law, with Australian consent, would

be changed so that if Prince William and his wife Catherine’s first child is female, she will be first in line to the throne. The legal changes were made by the Succession to the Crown Act 2013 (UK) and followed by legislation in Australia; for example, Succession to the Crown (Request) Act 2013 (Vic); Succession to The Crown Act 2015 (Cth). In 1999 Australia considered the question of becoming a republic. A referendum was held on the proposition that the Queen and the Governor-General be replaced by a President appointed by a vote of two-thirds majority of the members of the Commonwealth Parliament. This referendum was lost as a majority of voters in a majority of states voted against the proposal: 55 per cent to 45 per cent. Both the current Prime Minister and Leader of the Opposition are in favour of a republic but the issue is not likely to be put to another referendum in a near future. [page 15]

Governor-General of the Commonwealth and the Governor of a state 1.26

Since the monarch does not live in Australia, she is represented by the Governor-General of the Commonwealth and by the Governor of a state. The equivalent office in the Northern Territory and Norfolk Island is called the Administrator. There is no Administrator for the Australian Capital Territory. In practice, but not as a legal requirement, these office holders are Australian citizens. In all cases the appointment is made by the Queen on the advice of the relevant Australian government.

Prime Minister of the Commonwealth and the

ministers 1.27

Although the Prime Minister is the head of the political executive, that is those members of the executive who hold portfolios, who sit in Cabinet and who by law must also be members of parliament (s 64), this office is not mentioned in the Constitution, though ministers are: ss 64–66. Ministers are responsible for a portfolio, that is, a government department or area of government policy; for example, the Minister for Climate Change and the Minister for Defence. In practice, this means that a minister is responsible for the administration of statutes within his or her portfolio and has the legal powers and duties conferred by those statutes. Two ministers who are not called ‘ministers’ are the Treasurer and the Attorney-General. Not all ministers sit in Cabinet and in the case of the Commonwealth, those who do are said to be in the inner ministry, while those who do not are in the outer ministry. The same principles apply by virtue of sections in the state Constitution Acts to the Premier and ministers in state governments.

Public service 1.28

While policy is decided by the ministers (collectively called the ministry), it is implemented by the public service, the members of which are appointed rather than elected and are subject to public service legislation. In practice, many policies are initiated and developed by the senior officials in government departments and agencies. There is also a considerable body of legislation both for the public service generally and for specific offices. This legislation, to take the case of the Office of Parliamentary Counsel, sets out the functions of the office as well as the terms and conditions of appointment: Parliamentary Counsel Act 1970 (Cth); Parliamentary Counsel and Other Legislation Amendment Act 2012 (Cth).

Federalism Federalism was summarised in 1897 as embracing three central principles: 1.

The supremacy of the Federal or Commonwealth Constitution.

2.

The distribution, by the Constitution, of the powers conferred by the Constitution between: (a) the different branches of government; and (b) the Federal and State levels of government. [page 16]

3.

The existence of a supreme judicial power, conferred on the High Court, to interpret the Constitution and to resolve matters in dispute between the different parts of the federal system.

R Garran, The Coming Commonwealth, Angus & Robertson, Sydney, 1897, pp 24–5.

1.29

Australia, as we have seen, became a federation in 1901 following two constitutional conventions, one in Sydney in 1891 and the other spread over 2 years and three cities in 1897–98. With the completion of the drafting process, the draft was put to a referendum of the voters, who eventually adopted it, though New South Wales had to do this twice since the first attempt failed, and Western Australia only did so after the legislation was passed in London. The Constitution united the colonies and introduced the federal or Commonwealth level of government. The federal principle is central to an understanding of public law and manifests itself in various ways. Some of the elements of federalism will be explored in later chapters, but for now several preliminary points need to be noted. First, since there are different legislatures often making laws on the same subject, and since some principles are found in both the Commonwealth and state jurisdictions, the first issue when faced with a public law issue (or any other law question for that matter) is whether the matter is state or federal. This is essential, since the answer will determine which body of law applies to the problem. For

example, all parliaments have privileges, but the law is different in each jurisdiction. Thus, the Parliamentary Precincts Act 1988 (Cth), which defines the precincts of the federal parliament in Canberra and includes a map of that precinct, only applies to the Commonwealth Parliament and not to state parliaments. It would be a mistake then if a question concerned the New South Wales Parliament in Macquarie Street, Sydney, to apply the Commonwealth Act for resort should be had to the Parliamentary Precincts Act 1997 (NSW). Equally, it would by a mistake to apply the Commonwealth Act to the Victorian Parliament in Spring Street, Melbourne, when that parliament has defined its own precincts in the Parliamentary Precincts Act 2001 (Vic). In short, it is imperative to start with the right body of law for the jurisdiction in question. Second, Australia operates on a system of cooperative federalism. One indication of this is that while there are Commonwealth offences provided for in the Crimes Act 1914 (Cth) and in many other statutes, prosecutions for these offences in practice are always conducted in state or territory criminal courts. There are signs of change in this arrangement, for the Federal Court of Australia Amendment (Criminal Jurisdiction) Act 2009 (Cth) confers a criminal jurisdiction on the court, but it is yet to enter into force. It is likely that the Act will only apply to a limited class of Commonwealth criminal matters in the Federal Court. There are, of course, federal courts but they do not conduct criminal trials. The criminal trials that involve Commonwealth law in the state courts are governed by Commonwealth, [page 17] not state, rules. This was established, for example, in Cheatle v R

(1993) 177 CLR 541; 116 ALR 1, where the High Court held that a jury in a trial of a Commonwealth offence had to bring in a unanimous verdict and could not rely upon the state rule that permitted majority verdicts. Similarly, there are no prisons operated by the Commonwealth. Anyone sentenced to imprisonment for a Commonwealth offence serves their time in a state or territory prison: s 120. 1.30 The formal doctrine of cooperative federalism was set out early when it was realised that, given the limited legislative powers of both the states and the Commonwealth, certain problems could only be solved if both used their powers to cooperatively solve a common problem. Neither can use their powers to exceed their constitutional limits, but the Constitution does not prohibit cooperation either. Indeed, there are indications in the Constitution that cooperation was intended by its drafters: R v Duncan, Ex parte Australian Iron and Steel Pty Ltd (1983) 158 CLR 535; 49 ALR 19 at CLR 552, 572, 580. The leading principles were summarised by the Federal Court in BP Australia Ltd v Amann Aviation Pty Ltd (1996) 62 FCR 451; 137 ALR 447 at FCR 467E–G per Lockhart J: In my opinion, in the context of a co-operative scheme between the Commonwealth and State Parliaments and embodied in the legislation of each, the Commonwealth Parliament is competent to permit federal courts and tribunals to receive and to exercise powers conferred by the State Parliaments, subject to the following: (a) any restraints or limitations that may be imposed in the Constitution, express or implied; (b) the state jurisdiction being similar to that conferred on the States by the Commonwealth Parliament; and (c) the conferral of state jurisdiction being conducive to or consistent with the achievement of the object which the conferral of jurisdiction on federal courts or tribunals by the Commonwealth is intended to achieve. It is permissible for the Commonwealth and the States to enact legislation which provides for the powers and functions which may be exercised by federal courts

created by the Commonwealth Parliament, and by state courts created by the State Parliaments, in circumstances where by acting in co-operation each: supplies the deficiencies in the power of the other, and so that together they may achieve, subject to such limitations as those provided by s. 92 of the [Commonwealth] Constitution, a uniform and complete legislative scheme [Duncan per Gibbs CJ at 552]. The Commonwealth Constitution is a compact between the States and the Commonwealth which divides legislative powers between the Commonwealth Parliament and the State Parliaments. The Constitution:

[page 18] contemplates that there will be joint co-operative legislative action to deal with matters that lie beyond the powers of any single legislature [Duncan per Mason J at 560].

The other major area of cooperation is financial. In practice, the states no longer levy income taxes and cannot levy customs duties, excise or bounties: s 86. They rely upon the Commonwealth to levy such taxes and to distribute money to them via grants: s 96. In the case of the Goods and Services Tax (GST), which is a Commonwealth tax, by an agreement provided for in the legislation, all of the proceeds are given to the states and territories: Federal Financial Relations Act 2009 (Cth) s 5. With the exception of the Australian National University, which was set up by a Commonwealth Act in 1946, all universities are the creatures of state or territory legislation. But the funding for universities, for the most part, comes from the Commonwealth, which gathers the fees from students and funds university courses out of the national budget. Third, since there are nine legislatures (the Norfolk Island Legislative Assembly was replaced by an advisory council in 2015: Norfolk Island Legislative Amendment Act 2015 (Cth)), and since they all make laws, there is the possibility that the laws may be

inconsistent with each other. The rule is that where there is a Commonwealth law and a state law, and the state law is inconsistent with the Commonwealth law, the state law shall be, to the extent of the inconsistency, invalid: s 109. Even before this issue is reached, the first question is whether either jurisdiction may make a law on a particular matter. As we shall see in Chapter 5, in a federal system legislative power is necessarily restricted. This means that as a general rule the Commonwealth cannot legislate for a state, though it may for a territory: s 122. As is often the case in the law where there is a general rule, such as the one stated in the previous sentence, usually there is an exception. The exceptions are where the state refers a matter to the Commonwealth (s 51(xxxvii)) or requests the Commonwealth to legislate for it: s 51(xxxviii). 1.31

Aside from cooperation between the Commonwealth and the states there is also evidence of cooperation between the states. Every summer, for example, fire fighters from interstate assist in major bush fires in other jurisdictions as New South Wales fire fighters aided Victoria in 2014 (), while Northern Rivers, New South Wales crews went to the Adelaide Hills bush fires in January 2015: . During the G-20 meeting in Brisbane in November 2014 1500 interstate and New Zealand police officers were brought to Queensland to assist with security and general policing: . The cooperation may also be given a legislative basis. In 2009 the Parliaments of South Australia, Western Australia and the Northern Territory each passed a Cross-Border Justice Act to allow officers from the other jurisdiction to enforce their laws within the other jurisdictions in accordance with a cooperative scheme: s 6.

[page 19]

Sovereignty and Independence 1.32

While most Commonwealth countries, after 1945, achieved their independence on a specific date, Australian independence from Britain was gradual and occurred in stages. One great landmark was the Statute of Westminster 1931 (UK), which freed the Commonwealth from a number of legislative restrictions that had applied to British Colonies. The 1931 Act did not apply to the Commonwealth immediately, however, but was adopted by the Statute of Westminster Adoption Act 1942 (Cth), made retrospective in its operation from 3 September 1939. That Act, however, did not apply to the states, and the British legislative limitations on the states were only removed with the enactment of the Australia Acts 1986 (UK and Cth). In practice, Australia enjoyed a measure of executive independence before 1942 when it declared war on Japan in 1941. In contrast, all appeals to the Judicial Committee of the Privy Council, which sits in London, persisted after 1942 and were only terminated in stages between 1968 and 1986. One result of the elimination of the Judicial Committee of the Privy Council from the Australian court hierarchy was to make the High Court the nation’s highest court. Sovereignty is related to independence, but is not identical to it. In the international law sense, sovereignty refers to States that are not subject to the control or direction of another State, nor have the laws of any other State over them. This sort of sovereignty is sometimes called ‘external sovereignty’ and is equivalent to independence. But in a federation, there is also the question of internal sovereignty. The Australian states do not exercise external sovereignty; that is, they are not actors in the international law sense and cannot enter into treaties, conduct foreign affairs, declare war or conclude a peace. These

matters are the exclusive responsibility of the Commonwealth. Yet, within the federation, the states exercise internal sovereign power, such as judicial, executive and legislative power, within the bounds of the Commonwealth Constitution.

The Australian Advantage 1.33

Australia has a world-class Constitution (and a world-class democratic political system) and by the 21st century, Australians had acquired a nearly unparalleled experience in the operation of a complex system of constitutional governance. This experience is based on several elements.

ATTITUDE TOWARDS POWER 1.34

Our legal system is obliged to grapple with the difficulty that while large concentrations of power are created by legislation, there accompanies the exercise of legal and political power a sceptical attitude to the use of power and the pretensions of those in power. In 1984 Deane J in A v Hayden (No 2) (1984) 156 CLR 532; 56 ALR 82 at CLR 592 stated: … with the observation taken from the Jerusalem Bible, ‘… against putting one’s trust in men in power’: Psalms 146:3.

[page 20] The modern view is not that the executive is the enemy of the people (McKinney v University of Guelph (1990) 76 DLR (4th) 545 at 572H (SCC)), since in a democratic regime the executive is largely disciplined by the exigencies of the electoral process. Rather, the courts start from the premise that most public officials, elected and

non-elected, do act within the bounds of their legal authority in a conscientious manner. But, nevertheless, the evidence shows that abuses of power of varying degrees of severity do occur and that a system of accountability to the law is necessary. Thus, officials may exceed their powers either through well-intentioned mistakes or inadvertence, though well-intentioned illegality is still illegality. Or they may be corrupt and even actuated by malice, though this is less common in Australia. The mere existence of power means that it may be abused, though there is no presumption that this will occur. On the contrary, there is a presumption of regularity (Day v R (1984) 153 CLR 475; 51 ALR 353 at CLR 488 (HCA)) — that all that should be done has been done according to law, and it is for a party who wishes to challenge the legality of a decision or action to make the case that the presumption should be overturned and to show that the court ought to conclude that the bounds of the law have been exceeded.

A LONG PERIOD OF CONSTITUTION-MAKING 1.35

The period of constitution-making dates from the early 1850s when New South Wales, South Australia, Tasmania and Victoria wrote their first Constitution Acts. Western Australia followed in 1889. This 150year experience of frequent changes to colonial, then state, constitutions and the later experience of making the Commonwealth Constitution, is matched only by two older common law federations: the United States of America and Canada. There is no equivalent to this extended experience in the United Kingdom, for example. Thus, while the British Constitution was regarded even by close students of the subject as somewhat mysterious, and was the object of reverence and respect, Australian attitudes towards their own Constitutions have been more pragmatic and utilitarian. As the 21year-old Alfred Deakin explained in his maiden speech to the Victorian Parliament in 1878 (VPD, Assembly, 8 July 1878, p 25):

But here we have no such Constitution as that. Our Constitution is very exactly defined. There is nothing mysterious about it whatever. It cannot possibly awaken any sensations of romance. It is a brand-new Constitution. Our Constitution Act is one simple statute among others. It is something which was simply intended to accomplish a certain end, and we regard it with no more romance than we do the latest American invention for peeling potatoes or shelling peas.

GROWTH OF POLITICAL STABILITY 1.36

It is not often noticed that a constitution is designed to provide stability and to operate in good times and in bad. The Australian Constitutions operate in peace and [page 21] in war and therefore no Australian Constitution may legally be suspended or placed in abeyance for the duration of a crisis: Gratwick v Johnson (1945) 70 CLR 1; [1945] ALR 167 at CLR 12 (HCA). Nevertheless, the onset of responsible government was marked by considerable instability by today’s standards. In 1879 the Government of Western Australia published a document on the costs of responsible government in the other Australasian colonies. The document set out how often governments had fallen in the eastern colonies and those numbers were revealing. The average duration of a government in the eastern colonies since the introduction of responsible government was just 3 years. South Australia was particularly unstable with an astonishing 31 governments between 1856 and 1879 at an average of nine-and-a-half months each. Similarly, the first decade of Commonwealth governments was also marked by a series of short-lived governments. Alfred Deakin, for example, was Prime Minister three times in 10 years. The great change that came upon the system was a mixture of political experience and the rise of the two great political parties that have dominated political

life since Federation: the Australian Labor Party and the Liberal Party of Australia. Both injected discipline into government and stability into the legislature which hitherto had been dominated by loose coalitions of independents and others. While it may now be acceptable to denigrate politicians, it should be realised that in a system of elected parliaments, they are both unavoidable and indispensable.

POLITICAL MODERATION AND FLEXIBILITY 1.37

Political moderation and flexibility are harder to document but, nevertheless, form part of the culture underlying the Australian political system. It is assisted by the fact that, while the major political parties were once distinctive in their approach to national affairs, the conflicts between them have declined as ideological differences have waned. The conduct of national life has rarely degenerated into a political or constitutional crisis and these crises, when they have occurred, have been brief and successfully resolved. Though much is made of the dismissal of the Premier of New South Wales in 1932 and even more of the dismissal of the Prime Minister Gough Whitlam by the Governor-General, Sir John Kerr, in November 1975, these were once-in-a-century events and hardly typical of the way in which public institutions actually work. The formation of the federation and the introduction of responsible government in the colonies were peaceful events that did not arise out of a revolution or armed struggle. Political violence is rare and there has been only one political assassination in the country’s history: R v Ngo (2003) 57 NSWLR 55; Ngo v R (2013) 233 A Crim R 121. In the 20th century, there was an attempt to assassinate Arthur Calwell (then leader of the Australian Labor Party), during the 1966 election campaign, which failed: R v Kocan [1966] 2 NSWR 565. The would-be assassin was diagnosed as a borderline schizophrenic and was

eventually sent to an asylum for the criminally insane. As the sentencing judge pointed out in Ngo v R (2013) 233 A Crim R 121 at 127, [32] killing a member of parliament is ‘an attack on our constitutional system of parliamentary democracy’ and merits a life sentence. [page 22] Constitutional change in Australia has almost always been peaceful and largely lacking in the passions that have torn some other countries apart. Even the debates about whether the country should become a republic have been conducted in a peaceful and civil manner.

A BASIC AWARENESS, AND ACCEPTANCE, OF THE CONSTITUTIONAL ORDER BY THE GENERAL POPULACE 1.38

This is not to suggest that Australians are fully aware of the details of their constitutional system (the evidence suggests otherwise) but they do accept the premises of the electoral system, for example. In this sense, the constitutional system is based on the ‘manners’ of the public. Elections, for instance, are not characterised by violence, vote rigging or widespread bribery. No election observers are sent from overseas to monitor elections to ensure that the poll is conducted in a free and fair manner. The parties accept the result, though they may use legal procedures to challenge the result in particular seats; but no party denounces the overall result as illegitimate. One reason why the electoral system is so successful is that it is in the hands of professionals in the state and Australian Electoral Commissions. It is not surprising then that the constitutional system has, together with a

mature system of democratic governance, produced one of the world’s most stable and effective constitutional and political systems. This is not mere impression, for empirical studies have shown that parliamentary systems in general provide great political stability and are generally more stable than presidential systems: J Foweraker and T Landman, ‘Constitutional Design and Democratic Performance’ (2002) 9(2) Democratization 43 at 55. This experience vindicates the judgment made about Australia in 1921 by the English writer James Bryce, who wrote in Democratic Government and Politics in Australia (no publisher), 1921, p 277: The long settled habit of respect for the law and the provision of constitutional methods for settling disputes have stood the children of England in good stead.

FURTHER READING WEBSITES



[page 23]

BOOKS T Blackshield, G Williams and R Douglas, Public Law in Australia:

Commentary and Materials, Federation Press, Annandale, 2010. G Carney, The Constitutional Systems of the Australian States and Territories, Cambridge University Press, Melbourne, 2006. I Killey, Constitutional Conventions in Australia, Australian Scholarly Publishing, North Melbourne, 2009. C Saunders, The Constitution of Australia, Hart Publishing, Oxford, 2011.

[page 24]

STUDY QUESTIONS 1.

What forms does public law take in Australia?

2.

What is the relationship Commonwealth Constitution and:

between

the

Commonwealth Acts of Parliament; state Acts of Parliament; Commonwealth delegated legislation; common law and equity; and contracts between private persons? 3.

What are the main characteristics of federalism?

4.

Is ‘responsible government’ law? If not, what is its importance?

5.

Is all Australian public law Constitution? If not, why not?

6.

Identify the differences between the Australian and British Constitutions.

found

in

the

[page 25]

CHAPTER

2

Indigenous Australians and Public Law LEARNING OBJECTIVES In this chapter you will learn about: Settlement and Sovereignty Terra Nullius Mabo and Land Rights Constitutional Recognition

[page 26]

Introduction 2.1

This chapter focuses on the public law elements of the legal relationship between Indigenous people and the law. It will be necessary to distinguish between the past and the present, between domestic and international law and between sovereignty and land rights. This chapter will also consider recognition of Indigenous persons in the state Constitution Acts as well as federal proposals made in 2012 to recognise the Indigenous in the Commonwealth Constitution.

Sovereignty by Settlement 2.2

By the late 17th century and into the 18th century British colonies were classified under two heads. First, there were colonies that were conquered or ceded. This was one category, and some colonies, for example, Canada, were a bit of both. Thus the British conquered Canada (what is today Quebec) in 1759 and this was followed up by the Treaty of Paris in 1763 in which the French ceded sovereignty over Canada to the British. These colonies already had a population and legal system and it was open to the Crown to either retain the existing law or to replace it. In the Canadian case, the British retained French civil law, but agreed, at the request of the inhabitants, to bring in English criminal law.

2.3

The second type of colony was a settled colony said to apply to uninhabited or desert territories. In such colonies, there was either no population at all, or if there was, the political and legal structures of

the inhabitants were not recognised by the British and they were free to introduce English law, including English land law. Chitty explained this when he wrote (J Chitty, Prerogatives of the Crown, Butterworths, London, 1820, p 29): If an uninhabited country be discovered and peopled by English subjects, they are supposed to possess themselves of it for the benefit of their Sovereign, and such of the English laws then in force, as are applicable and necessary to their situation, and the condition of the infant colony: as for instance, laws for the protection of their persons and property, are immediately in force. Wherever an Englishman goes he carries with him as much of English law and liberty as the nature of the situation will allow.

The classification in practice was crude since it meant that a settled colony with inhabitants could be regarded as a tabula rasa (blank slate) and the British could start the legal order from scratch. Australia, in this system, was, and has always been regarded as, a settled colony. As Gibbs CJ put it in Coe v The Commonwealth (1978) 18 ALR 592 (Mason J); (1979) 24 ALR 118 at 129 (HCA): ‘It is fundamental to our legal system that the Australian colonies became British possessions by settlement and not by conquest.’ As discussed below at 2.11, the evidence that the British knew that there were people here before 1788 lies in the accounts by both Dutch and English explorers who arrived on voyages of discovery before 1788. These accounts clearly indicate that the Europeans saw Indigenous Australians or [page 27] at least traces of their existence. But since encounters were rare, the impression taken away by the Europeans was of a sparsely inhabited continent with a small and scattered population. Since a settled colony presupposed no recognisable legal order pre-dating the British

settlement, this explains why the British did not recognise Aboriginal law, including land rights.

INTERNATIONAL LAW ON THE ACQUISITION OF COLONIES IN THE 18TH CENTURY 2.4

In a leading work on international law published in 1757 the Swiss writer Emmerich Vattel (1714–67) set out the thinking of European writers on the acquisition of territories: The Law of Nations (1758) (trans C G Fenwick), Carnegie Institute, Washington, 1916. The argument was that God gave the earth to all mankind with an obligation to cultivate the land. Where a nation ‘finds a country uninhabited and without an owner, it may lawfully take possession of it, and after it has given sufficient signs of its intention in this respect, it may not be deprived of it by another Nation’. While this argument authorised the taking of lands without a population and ‘without an owner’, Vattel then considered the case of territories with wandering tribes in small numbers. Since such small and nomadic populations could not fully cultivate such lands, ‘when the Nations of Europe, which are too confined at home, come upon such lands which the savages have no special need of and are making no present and continuous use of, they may lawfully take possession of them and establish colonies in them’. Vattel then goes on to praise the English who, after their arrival in New England and Pennsylvania, bought land from the ‘savages’, as he put it. It should be noted that this view was actually a departure from the opinions of earlier writers on the law of nations who argued that native peoples did have title to their lands: J S Davidson, ‘The Rights of Indigenous Peoples in Early International Law’ (1994) 5 Canterbury Law Review 391–423. Vattel and other international law writers such as Grotius and Puffendorf were also cited to the courts in early cases involving Aboriginals. Not all of these references were averse to Indigenous

Australians. In one early case counsel cited Vattel, to the effect that the natives had a demesne (property) in the country and were not subject to the jurisdiction of the court. The court rejected this argument, saying that British legislation put an end to such arguments by recognising British sovereignty over the country: R v Lowe [1827] NSWSupC 32. Similarly, Vattel was cited in the Western Australian case of R v We-War [1842] NSWSupC 1 (WA Qtr Sessions) to notice that Western Australia was not an uninhabited country, but: … when a large extent of country is roamed over by wandering savages, who make no use, or a very trifling use of the soil, and subsist by the chase and spontaneous products of the earth, in such a case, say the writers referred to, those savage tribes have no right to exclude the rest of mankind from that which they themselves make no proper use, and of which the surplus population of other states stand in need; and that, therefore, any

[page 28] other densely peopled state is lawfully entitled to take possession of such a country and to establish colonies in it, provided they leave the natives such a portion of land, as by proper cultivation and use, would be sufficient for their subsistence.

2.5

It is important to realise that neither Vattel nor any British writer during this era actually used the phrase ‘terra nullius’. Michael Connor is right when he makes this claim (The Invention of Terra Nullius, Macleay Press, Sydney, 2005), though he was certainly not the first to do so (D Ritter, ‘The “Rejection of Terra Nullius” in Mabo: A Critical Analysis’ (1996) 18 Sydney Law Review 5 at 6), but as we shall see he makes too much of it in claiming that the invention of terra nullius somehow undermines native title in Australia. Thus, the term terra nullius does not appear in British dispatches or in newspapers of the time, because the British had a different frame of reference. It is true that a search of the early Tasmanian and New South Wales cases on the AustLII database created by Bruce Kercher and colleagues does

yield several hits for the phrase ‘terra nullius’, but these references appear in the catchwords added by the modern reporters and the term does not appear in the text of the judgments and other original documents themselves. So the issue then becomes not what phrase was used, but what underlying ideas appear in the legal writing of the time. It should also be noted that terra nullius is something of an Australian specialty for it is not a term applied in other jurisdictions, with one exception in South Africa: Richtersveld Community v Alexkor Ltd 2003 (6) SA 104 at 122, [41]. The Canadians referred to Western Canada as ‘terra incognita’ (Calder v Attorney-General of British Columbia (1969) 8 DLR (3d) 59 at 67), as did earlier Australian historians discussing Australia (E Scott, Australian Discovery by Sea, J M Dent, London, 1929), while a New Zealand court has held that that country was not terra nullius, because sovereignty was acquired by the British by a combination of a treaty of cession and annexation by the prerogative: Attorney-General v Ngati Apa [2003] 3 NZLR 643 at 657, [37].

TERRA NULLIUS AS AN INTERNATIONAL LAW CONCEPT 2.6

Historically, international law recognised five modes of acquisition of territory: occupation of terra nullius, prescription, cession, accretion and subjugation (or conquest): M N Shaw, ‘Territory in International Law’ (1982) 13 Netherlands Yearbook of International Law 61 at 79. As we shall see in the Australian case and especially in Australian historical writing, the international law concept of terra nullius figures prominently. Before considering its role in Australian public law, it is first necessary to say something about the concept in international law, from which it derives and in which discipline it is regarded as a term of art. But before doing that, it should be noted that the term ‘terra nullius’ is derived from the Roman law property concept ‘res

nullius’. In Roman law, res nullius referred to property owned by no one. This included property that had been abandoned, an [page 29] island rising out of the sea, things washed up at the seaside (for example, pearls), and wild animals. Res nullius in international law might also refer to land that was uninhabitable, such as polar regions or islands without water or vegetation, but still subject to sovereignty as is land that had no inhabitants, such as a military zone, a bird sanctuary or a game reserve: Sir Gerald Fitzmaurice, ‘The General Principles of International Law’ (1957) 2 Recueil Des Cours 9 at 133–4. In the 19th century and well into the 20th century, writers on international law used the term ‘res nullius’ rather than ‘terra nullius’ to refer to territory not subject to the sovereignty of any State: J MacDonnell, ‘Occupation and Res Nullius’ (1899) 1 Journal of the Society of Comparative Legislation (NS) 276–86. 2.7

In time, the Roman law element (res nullius — land owned by no one) was incorporated into the term ‘terra nullius’, and thus there is an essential ambiguity in the term ‘terra nullius’ since it was often used to refer to both sovereignty and ownership, sometimes combined together, sometimes referring to separate ideas. Formally between 1888 and 1926 the term actually used was ‘territorium nullius’ but later writers have used the term ‘terra nullius’. Attempts to argue that there is a significant difference between these two terms are mistaken and not supported by the international law literature. In the Western Sahara case [1975] ICJ Rep 12 at 134, for example, the various parties used the two terms interchangeably, though the court itself used the term ‘terra nullius’.

2.8

In international law, terra nullius is best translated as territory belonging to no State or which was not the subject of a claim by a sovereign State. Sometimes this is taken to refer to territory that is literally uninhabited, but that is misleading. For one thing, territory can be uninhabited, but not terra nullius: Lord McNair (ed), International Law Opinions, Cambridge University Press, Cambridge, 1956, Vol 1, p 312. There are islands around Australia, for example, where no one lives; that is, they are uninhabited. But such islands are not terra nullius because they are subject to Australian sovereignty. The point came up in 1876 when an American businessman in Melbourne, Samuel P Lord, sent an agent to the Lacepede Islands off the North-West coast of Western Australia. Although these islands were uninhabited they were sought after because of their guano deposits. Lord’s agent raised the United States flag and claimed the islands for the United States: Correspondence between His Excellency the Governor and the Secretary of State for the Colonies on the subject of the Claim advanced by Mr S P Lord in respect of the Lacepede Islands, WAPP No 15 of 1877, pp 1–2. The British then had the agent evicted and the Western Australian Parliament passed legislation to affirm the title of the Crown to the islands: Removal of Guano — Trespass on Crown Lands Act 1876 (WA). Lord claimed that an 1856 Act of the United States Congress gave him the authority to take the islands and the matter was sent to London for an opinion of the law officers. They reported that although they treated the islands as res nullius (that is, owned by no one), they were nevertheless subject to British sovereignty: D P O’Connell and A Riordan (eds), Opinions on Imperial Constitutional Law, Lawbook Co, Sydney, 1971, pp 282–4. They noted that the Act of Congress in [page 30]

any event only allowed American claims in circumstances ‘that such island, rock or key was not, at the time of discovery thereof, or of the taking of possession and occupation thereof by the claimants, in the possession or occupation of any other government or of the citizens of any other government’. In time, the United States Government confirmed that it did not support Lord’s claim. 2.9

Nevertheless, land such as an island newly emerged through earth movement or volcanic activity may be terra nullius: for example, I Brownlie, Principles of Public International Law, 7th ed, Oxford University Press, Oxford, 2008, p 133. Where there is an uninhabited territory, sovereignty must be established and not merely claimed, and this usually requires taking possession of the territory and the exercise of some kind of State authority over the land concerned: Clipperton Island Case (1932) RIAA ii, 1105. Certainly well into the 20th century it was accepted in international law that territory not under the sovereignty of a recognised State might be acquired as terra nullius even if inhabited by ‘primitive tribes or nomad groups not organized as a state’: Sir Gerald Fitzmaurice, ‘The General Principles of International Law’ (1957) 2 Recueil Des Cours 9 at 139.

2.10 Today the more difficult question is whether territory inhabited by peoples with a social or political organisation is to be considered terra nullius. The contemporary opinion is that such territories are not terra nullius and thus cannot be claimed on that basis. The case relied upon for this proposition is the Western Sahara case [1975] ICJ Rep 12. The case arose out of the decision by Spain in 1974 to grant independence to Western Sahara. Morocco and Mauretania then claimed the territory. The International Court of Justice was asked to provide an advisory opinion on the matter and one of the questions posed to the court was framed as follows: ‘Was Western Sahara (Rio De Oro and Sakiet El Hamra) at the time of colonization by Spain a territory belonging to no one (terra nullius)?’ The court answered the

question (at 39) in the negative because in 1884 it was shown that Spain acquired sovereignty as a result of agreements entered into with the chiefs of the local tribes. As the court put it: At the time of colonization Western Sahara was inhabited by peoples which, if nomadic, were socially and politically organized in tribes and under chiefs competent to represent them. Spain did not proceed on the basis that it was establishing its sovereignty over terra nullius … Spain proclaimed that the king was taking Rio de Oro under his protection on the basis of agreements which had been entered into with the chiefs of the local tribes.

On this basis the court concluded that the Western Sahara was not terra nullius. In a long opinion there were only five paragraphs in the joint opinion devoted to the terra nullius concept, though several of the judges in their separate opinions commented on the concept. The term was said to be a ‘legal term of art employed in connection with occupation as one of the accepted legal methods of acquiring sovereignty over territory’. Several of the judges used the French term ‘sans maitre’ [page 31] (territory without a master — meaning of sovereign as a synonym for terra nullius) to refer to such territories. The advantage of the French term is that it clearly comes closest to the sovereignty meaning of terra nullius. In the joint opinion it seemed clear that at least in 1884 Africa as a whole was not terra nullius, because it was inhabited by peoples having a social and political organisation. Several of the judges thought that the terra nullius question was unnecessary because none of the parties ever claimed that Western Sahara was terra nullius. As Judge Dillard wrote (at 123): ‘… no State appearing before the Court, including Spain, asserted that the territory was terra nullius. How then could it be deemed relevant?’ Nevertheless, several judges in their

separate opinions discussed the concept. The most important discussion occurred in the opinion of Vice President Ammoun, who rejected the argument that terra nullius included territory inhabited by backward populations. Thus, any territory that is inhabited can no longer be regarded as terra nullius.

BRITISH PERCEPTIONS OF AUSTRALIA 2.11

The evidence is clear that before 1788 the British knew that there were people on the continent. The evidence comes from the reports made in the 17th century by Dutch explorers who reached what is now Western Australia and Tasmania, and from the testimony of the British explorer William Dampier, who arrived in Western Australian waters in 1688. They all reported sightings of Aboriginal people, though in most cases they also reported that the population was sparse and nomadic. By the time Captain James Cook arrived off the coast of New South Wales in 1770 he was already aware that there might be people inhabiting the land since he was aware of the Dampier journal: James Cook, The Journals (P Edwards (ed)), Penguin Classics, London, 2003, p 152. His own journals noted numerous sightings of local people and he had several direct encounters with them. But these meetings were accompanied by mutual incomprehension. Cook reports that no one in his party could understand Aboriginal languages and one assumes that Aboriginals did not understand English. Cook’s impression was that: ‘The Natives do not appear to be numerous neither do they seem to live in large bodies but dispers’d in small parties …’: at 130. In evidence given to the House of Commons in 1779, Joseph Banks reported that there were natives in New South Wales but that there were very few and he ‘had reason to believe that the country was very thinly peopled’: V Harlow and F Madden (eds), British Colonial Developments 1774–1824: Select Documents, Clarendon Press, Oxford, 1953, p 427. By the 1830s it was accepted

doctrine in the New South Wales courts that the colony must be regarded as having been an uninhabited country at the time of settlement. By this the judge clearly meant not literally an uninhabited country, but legally an uninhabited country: ‘… for the wandering tribes of its natives, living without certain habitation and without laws were never in the situation of a conquered people’: Macdonald v Levy (1833) 1 Legge 39 at 45 (NSW S Ct) per Burton J dissenting. The most authoritative statement of this view, technically a dictum since the case was not about native [page 32] title, was the often-quoted statement of Lord Watson in Cooper v Stuart (1889) 14 App Cas 286 at 291 where he wrote (italics added): There is a great difference between the case of a Colony acquired by conquest or cession, in which there is an established system of law, and that of a colony which consisted of a tract of territory practically unoccupied, without settled inhabitants or settled law, at the time when it was peacefully annexed to the British dominions. The Colony of New South Wales belongs to the latter class.

2.12

The problem that Britain had with Australia was that it was clearly not a ceded territory since there was no treaty of cession in 1788. Nor was it conquered in a formal war of conquest. Both categories could accommodate territory with a population, indeed their very nature assumed a population, and even a state, in the territory prior to British acquisition. That only left settlement that, in theory, assumed an empty land. However, in Australia’s case there was, in fact, a scattered population. In short, the facts had to fit the law and not the other way round. In the Mabo case, as we shall see, the court decided to mould the law to fit the facts.

MABO TREATMENT OF TERRA NULLIUS

2.13

It seems clear that the judges in Mabo v Queensland (No 2) (1992) 175 CLR 1; 107 ALR 1 at CLR 103 understood that there existed two versions of terra nullius. One view was territory unclaimed by a European power though it might have inhabitants but their sovereignty was not recognised. This view Brennan J called ‘extended terra nullius’: at CLR 33, 36. The court relied upon the Western Sahara case to argue that this was no longer good in international law and that the law of Australia should conform to this view: at CLR 40– 2. Once this version of terra nullius was out of the way that left the original version; that is, territory that was literally uninhabited and not subject to sovereignty. On the facts this did not apply to the Murray Islands as the findings of fact by Moynihan J in the Queensland Supreme Court showed that the islands were inhabited by a settled population before annexation by Queensland. On this view, the islands were not taken as terra nullius in the original sense. This did not challenge the separate view of the sovereignty of Australia, but it did serve to undermine the assumptions upon which earlier cases about sovereignty and the vesting of all land in the Crown were based. Thus, Brennan J did not reject terra nullius as a concept at all, but he, along with the other members of the majority in Mabo, declared that Australia was not terra nullius in the original sense since it was inhabited, and it was not terra nullius in the extended sense because that concept did not apply to Australia. Terra nullius in its original sense of unoccupied lands not subject to any sovereignty remains in law, though few such places may exist in practice. Claims made later by politicians that terra nullius had been abolished by the court are nonsense. Apart from the point that a domestic court probably cannot abolish an international law concept, the court merely said that the original view of terra nullius, that is, [page 33]

uninhabited lands, did not apply to the Murray Islands and, by extension, to the rest of Australia. 2.14

Terra nullius, despite claims made to the contrary (M Connor, The Invention of Terra Nullius, Macleay Press, Sydney, 2005), played a small part in the overall reasoning of the majority in Mabo. In 1997 Sir Anthony Mason gave a lecture in which he summarised the case, and in that lecture he did not mention the terra nullius point at all: ‘The Rights of Indigenous Peoples in Lands Once Part of the Old Dominions of the Crown’ (1997) 46 International and Comparative Law Quarterly 812–30. In an interview on the case given in 2006, he confirmed that terra nullius played a small part in the decision and described the view that because the term ‘terra nullius’ had not been referred to in 1788 by the British that the High Court had somehow made a mistake, as a ‘quibbling point’: The Australian, 25 February 2006, p 22.

Land Rights LAND RIGHTS PRE-MABO 2.15

The formal legal theory in 1788 was that on settlement, all land vested in the Crown. There was no acknowledgment of prior land ownership before British occupation. The Crown was subsequently able to alienate land by lease or sale and create land use rights by statute. In an important case in 1847 the New South Wales Supreme Court discussed the roots of landholding in Australia: Attorney-General v Brown (1847) 1 Legge 312 (NSW SC). The case concerned 60 acres of land in Newcastle in New South Wales leased by the Crown and the dispute was whether a reservation in the lease that allowed the Crown to take part of the land for a public way and all mining rights, applied to a coal deposit found on the land. Specifically, it was argued by the

Crown that the occupier, Brown, had entered on the coal mine in breach of the reservation in the lease. It was necessary in the resolution of this issue to consider the status of waste lands in the Colony. Stephen CJ rejected the argument that sovereignty and dominium (right of property) were separate and that the Crown was not in possession of the land. His Honour wrote (at 316): We are of opinion, then, that the waste lands of this Colony are, and ever have been, from the time of first settlement in 1788, in the Crown: that they are, and ever have been, from that date in point of legal intendment, without office found, in the Sovereign’s possession: and that, as his or her property, they have been and may now be effectually granted to subjects of the Crown.

2.16

Stephen CJ then went on (at 318) to discuss the view, which he described as a legal fiction in England, that the Sovereign was a universal occupant of the land, commenting that in ‘a newlydiscovered country, settled by British subjects, the occupancy of the Crown with respect to the waste lands of that country, is no fiction’. Note that the case was not about Aboriginal land claims but has been taken to indicate the general status of legal title on British settlement. In an important [page 34] case decided by the High Court in 1913, Isaacs J noted that when Governor Phillip received his commission in 1786, ‘the whole of the lands of Australia were already in law the property of the King of England. No act of appropriation, or reservation, or setting apart, was necessary to vest the land in the Crown …’: Williams v AttorneyGeneral (NSW) (1913) 16 CLR 404; 19 ALR 378 at CLR 439. Stephen CJ went on to note that even though a treaty was signed in 1835 by John Batman with Aboriginals in what is now Victoria (J Bonwick, Port Phillip Settlement, Sampson Low, London, 1883, pp 211–15), this

was not recognised by the Crown and persons in possession as a result of the treaty were to be treated as trespassers and intruders. 2.17

It is sometimes assumed that no rights to land were granted to Aboriginal Australians before the Mabo case in 1992, but that is wrong. The case many cite as evidence of this is the Province of South Australia. The Letters Patent establishing South Australia dated 19 February 1836 (‘Letters Patent Establishing the Province of South Australia’, as SAPP No 32 of 1907) expressly referred to the land issue when it stated: Provided always that nothing in these our Letters Patent contained shall affect or be construed to affect the rights of any Aboriginal Natives of the said Province to the actual occupation or enjoyment in their own persons or in the persons of their Descendants of any lands now actually occupied or enjoyed by such Natives.

In South Australia, statutes were passed governing aspects of land use and in at least two instances exceptions were granted by statute to permit Aboriginals to continue hunting practices, though these practices were forbidden to everyone else: Protection of Animals Act 1864 (SA) s 6. Similarly, the Crown by statute was empowered to grant leases in the form of Aboriginal reserves (Miscellaneous Leases Act 1872 (SA) s 1), of which there were many in the colony. The Aboriginal reserves were an explicit recognition of Aboriginal land interests consistent with the theory that all land vested originally in the Crown and that any title or interest in land or the use of land derived from the Crown. It was accepted that despite these measures, but in fact often because of them, the ‘extensive occupation of the lands of the Province necessarily deprives the natives of their former means of support and comfort’: ‘Condition of Aborigines’ as SAPP No 169 of 1857. The same memorial from concerned citizens urged the government and all colonists to ‘mitigate the physical sufferings consequent upon such occupation of land, and to promote their moral and spiritual well-being’.

THE PUSH FOR LEGAL RECOGNITION OF NATIVE TITLE 2.18

The first attempt to establish a general right to native title occurred in 1971 in Milirrpum v Nabalco Pty Ltd (1971) 17 FLR 141; [1972–73] ALR 65 (the Gove case). In that case, Aboriginal people in the Gove Peninsula in the Northern Territory sued the company that mined for bauxite in areas of Arnhem Land, which the [page 35] Aboriginals used for ritual and economic purposes. The matter was heard in the Northern Territory Supreme Court by Blackburn J, who, after an exhaustive review of the authorities, held (at FLR 198) that ‘communal native title’ did not exist as part of the law of Australia. This in spite of extensive evidence showing the nature of Aboriginal land use and the acceptance by the court that the people in question had ‘a subtle and elaborate system of social rules and customs … which provided a stable order of society remarkably free from the vagaries of personal whim or influence’: at FLR 267. As a justice of a Territory Supreme Court, Blackburn J felt that he had no choice but to follow the earlier authorities, and held that communal native title did not exist in Australian law. On the other hand, the case did break ground as the first formal ‘native title’ case and the judge heard extensive anthropological evidence on the relationship between Aboriginals and their land. The evidence contradicted the 19th century belief of shiftless ‘savages’ who wandered about and who had no firm links to the land. Despite losing the case, the Commonwealth passed the Northern Territory (Land Rights) Act 1976 (Cth) and thereby gave statutory recognition to native title in the Northern Territory. But that Act was confined to the Territory and did not

change the common law of property in relation to Aboriginal land claims. There were also statutes in South Australia (1981 and 1984) and Queensland (1991) recognising Aboriginal land rights: G Neate, ‘Looking After Country’ (1993) 16 University of New South Wales Law Journal 161 at 172 fn 37. 2.19

Subsequently in Coe v Commonwealth (1978) 18 ALR 592 (HCA), an attempt was made to establish on behalf of the Aboriginal people, and nation, their sovereignty over Australia and, more importantly, ‘proprietary and/or possessory rights, privileges, interests, claims and entitlements to particular areas of land …’. Coe sought a declaration (at 595–6) that all lands and waterways within the continent of Australia presently occupied, traversed or used by Aboriginal people are at the ‘absolute command of the Aboriginal people …’. The case failed on the basis that there was no continuing sovereignty in the Aboriginal people. Amongst many deficiencies in the pleadings was a failure to specify the land to which the alleged rights related. The important point was that the case did not directly have to decide a land rights matter, but was essentially about the striking out of the statement of claim, that is, the status of the documents filed by Coe, rather than the underlying substantive issues. There is no doubt that the claims made by Coe were extraordinary for they included a claim that the ‘aboriginal nation proclaims sovereignty on behalf of the aboriginal nation over the United Kingdom and over Australia’. A declaration was sought that these proclamations were valid, but Mason J held there was no legal basis for this claim to relief. An equally divided Full Bench of the High Court upheld Mason J’s decision to strike out the matter. Gibbs J pointed out that the acquisition of British sovereignty was an act of State and as a manifestation of the royal prerogative, it was not justiciable, that is, challengeable, in an Australia court: (1979) 24 ALR 118 at 128, followed in Ure v Commonwealth (2015) 323 ALR 164 at 169, [25]–

[27]. On the land claim point, Gibbs J noted that the claim was an attack on Milirrpum v Nabalco Pty Ltd and that would be an arguable [page 36] question if properly raised. But the matter foundered because ‘no particular land is identified’. He went on to say (at 130) that it was wrong to say that holders of proprietary rights could not be dispossessed without a bilateral treaty, lawful compensation or lawful international intervention.

MABO 2.20 Eddie Koiki Mabo, perhaps now the most famous plaintiff in Australian legal history, was born in the Torres Strait in 1936 and after a varied career became a gardener at James Cook University in Townsville. He there met Henry Reynolds, a historian, and began the long journey to making a claim in the Queensland courts for lands rights on his home island. Although Mabo died before the decision was handed down, his name is probably better known to most Australians than any other plaintiff. There were other plaintiffs in the case besides Mabo, since Mabo was initially joined in the case by David Passi and James Rice as well as Celia Mapo Salee, who died after the action was instituted: Mabo v State of Queensland [1992] 1 Qd R 78 at 80–1. The action commenced in May 1982 in the original jurisdiction of the High Court. At the beginning it was intended to include a claim by another set of plaintiffs from an Aboriginal community in North Queensland, but that action faded away. In 1985 the Queensland Parliament passed legislation to confirm formally that the Murray Islands were part of Queensland. The Act was designed to have two

effects. First, to confirm that the islands of the Torres Strait had been annexed to the Crown on 1 August 1878, meaning, of course, that they were not part of the British possessions in Australia in 1788. Second, the government hoped that the Act would undercut the legal proceedings brought by Mabo and two others, because it provided that on annexation ‘the islands were vested in the Crown in right of Queensland freed of all other rights, interests and claims of any kind whatsoever …’: Queensland Coast Islands Declaratory Act 1985 (Qld) s 3(a). Alarmed, Mabo’s counsel sought to have the case transferred to the Federal Court of Australia, but this manoeuvre failed and the matter was remitted to the Supreme Court of Queensland for the taking of evidence: Mabo v State of Queensland (1986) 64 ALR 1; 60 ALJR 255 (HCA). In the result, Moynihan J took extensive evidence between 1986 and 1989 on the nature of landholding practices in the Murray Islands running to some 3489 pages of transcript. The judge ruled in 1990 that the bulk of this evidence was admissible for the purposes of the case (Mabo v State of Queensland [1992] 1 Qd R 78) and these factual findings proved crucial when the matter went to the High Court, as we shall see. One of the surprising details about the case is that the claims made by Mabo himself in respect of his own land were not accepted by Moynihan J, but the case proceeded on the basis of a representative action: Mabo v Queensland (No 2) (1992) 175 CLR 1; 107 ALR 1 at CLR 75. The passage of the 1985 Queensland legislation proved to be an obstacle that was cleared away in Mabo v Queensland (No 1) (1988) 166 CLR 186; 83 ALR 14, for the legislation was successfully challenged on the grounds that it was inconsistent with the Racial Discrimination Act 1975 (Cth) and was invalidated on that ground. [page 37]

Mabo (No 1) did not deal with the land claim as such, but the tone of the judgments showed that the court was not unsympathetic to the claim. As Dawson J pointed out (at CLR 233): In its defence, the State of Queensland admits that the Murray Islands have been inhabited by people, commonly known as Murray islanders, during the whole of their known history. The defence goes on to identify Murray islanders as part of a people commonly known as Torres Strait Islanders. It does not admit the existence of a people known as the Meriam people, the existence of the land rights claimed by the plaintiffs or the exclusivity of those people’s possession of the islands.

Apart from this crucial admission, the court also made it clear that racially discriminatory practices towards the Indigenous could not now be tolerated in modern Australia. This was to prove an essential point in the later case, Mabo (No 2). 2.21

The claim made by the plaintiffs was for very specific lands on the Murray Islands in the Torres Strait (that is, the islands of Mer, Dauar and Waier), both for themselves and for their people (Mabo v Queensland (No 2) (1992) 175 CLR 1; 107 ALR 1 at CLR 6–7), unlike the claim made in Coe for the sovereignty and the land of all of Australia. Counsel for the plaintiffs argued that land was held individually on the Murray Islands and that the native title was a usufructuary right (a right to use land belonging to another provided that no damage results thereto) ‘which is a mere qualification of or burden on the radical or final title of the Crown’. In so doing the claim did not challenge directly the old argument that all title to land in Australia vested in the Crown, but in this case was subject to a limitation in respect of native title. Similarly, the plaintiffs did not contest the proposition that the British Crown acquired sovereignty over the islands, and thus the case was not a claim about sovereignty, but whether the effect of sovereignty was to extinguish native title. Counsel for the plaintiffs argued (at CLR 8) that it did not extinguish native title. The 19th century position was distinguished (at CLR 9) on the basis that then the land was thought to be unoccupied, but here

the evidence showed that the islands were occupied and that a real society flourished there. Moreover, there was evidence that the British had by Imperial legislation acknowledged the sovereignty of chiefs in these islands before Queensland annexed the islands and that an island court had existed that, amongst other things, dealt with land disputes over plots of land held by island claimants. Counsel for Queensland adhered to the argument (at CLR 13) that ‘sovereignty necessarily involves that notion of absolute title’, and that this was inconsistent with any notion of allodial title. ‘Allodial’ means land free of all encumbrances and, specifically, not held from the Crown, in contrast to the theory that in England all land is held from the Crown. The court held (at CLR 69–70) by 6:1 (Dawson J dissenting) that: the Crown’s acquisition of sovereignty over Australia cannot be challenged in an Australian court; [page 38] the Crown thereby acquired radical title to the land; native title survived the Crown’s acquisition of sovereignty and radical title. But native title might be extinguished by a valid exercise of sovereign power. Thus native title might be extinguished by grants of freehold estate or leases, or by expropriation of the land by the Crown; for example, by building roads and public buildings; and native title is to be ascertained by reference to the laws and customs of the Indigenous people concerned and who have a connection with the land. But this connection may be lost either by a decline in the customs and practices associated with the land or by alienation of the land by surrender to the Crown.

With reference to the specific questions in the Mabo case itself, the court declared (at CLR 217) that: the Murray Islands were not Crown land within the meaning of the Land Act 1962 (Qld) s 5; apart from some land leased to others and appropriated for administrative purposes, the Meriam people were entitled as against the whole world to possession, occupation, use and enjoyment of the lands of the Murray Islands; and this title was subject to the power of the Queensland Parliament to extinguish that title, provided that it was not inconsistent with the laws of the Commonwealth. Brennan J delivered the main judgment with which Mason CJ and McHugh J agreed. This was a long and complex argument of which the main elements were that: the people of the Murray Islands, as the evidence showed, had held land according to local custom before the British acquisition of sovereignty and had continued to do so ever since; and the old cases that had conflated the vesting of all land in the Crown on the acquisition of sovereignty were to be rejected because: —

they were based on facts now known to be false, that is, that the islands were presumed to be unoccupied. The evidence contradicted, and undermined, this claim. Brennan J (at CLR 40) stated that that theory was ‘false in fact and unacceptable in our society’;

—

the old view that scattered tribes were not capable of holding land was false in the Murray Islands case as the islanders were sedentary gardeners and fishermen;

—

the old view emerged during an age of racial discrimination that now could not be accepted in modern Australia (at CLR 58); [page 39]

—

international law had moved on from the period before 1975 and in the light of the Western Sahara decision the enlarged view of terra nullius, that is, that territory with a scattered population could be taken, was no longer good international law, and that Australian law should reflect this position (at CLR 40–2); and

—

the law in Australia should now distinguish between sovereignty and possession of land in the Crown. The acquisition of sovereignty of Australia as a settled colony was an act of State, that is, an act of the prerogative, and was not capable of being challenged in an Australian court of law: at CLR 81. The preservation of this position was essential to maintain the skeleton of principle underlying Australian law: at CLR 29–30. However, the court could examine the incidents of sovereignty and thus separate possession of land from sovereignty itself. In short, the one did not necessarily entail the other.

Brennan J described equating sovereignty with beneficial ownership as a ‘fallacy’: at CLR 51. The court did not upset the view that radical title to land vested in the Crown. The majority engrafted onto this traditional position the view that such radical title might be burdened by native title. In the result, the common law of Australia should now recognise native title

as a category of property. All of this was subject to extinguishment by the Crown in various ways. The judgments of the other justices in the majority, Deane, Toohey and Gaudron JJ, agreed on native title, but differed on the issue of extinguishment. The latter three judges thought that this could only take place by a clear and unambiguous statutory provision: at CLR 119, 205. They also thought that any other form of extinguishment would be wrongful and give rise to an action in damages: at CLR 15, 119.

POST-MABO DEVELOPMENTS 2.22 Subsequent to the Mabo decision, the Commonwealth Parliament enacted the Native Title Act 1993 (Cth), which was upheld by the High Court as a valid exercise of the legislative powers of the Commonwealth. The preamble to the Act recited, amongst other things, that the High Court had rejected the doctrine that Australia was terra nullius (land belonging to no one), while the Prime Minister in his Second Reading Speech on the Bill denounced what he called the ‘pernicious legal deceit of terra nullius for all of Australia — and for all time’: CPD, House of Representatives, 16 November 1993, p 2877. The present position is now governed by this Act and strictly speaking native title in Australia rests on the Act, not the Mabo case. The Native Title Act s 10 states: ‘Native title is recognised and protected, in accordance with this Act’. The Act was, for the most part, upheld as a valid exercise of Commonwealth legislative power in Western Australia v Commonwealth (The Second Native Title Act Case) (1995) 183 CLR 373; 128 ALR 1. [page 40]

There is a large body of post-Mabo litigation and as this is part of Australian property law it will not be dealt with here. The subject is now dealt with in property law texts and has spawned a specialist literature. A number of state parliaments have also enacted native title legislation which likewise referred to the decision in Mabo and the rejection of the doctrine that Australia was terra nullius: Native Title (New South Wales) Act 1994 (NSW); Native Title (Queensland) Act 1993 (Qld); Native Title (South Australia) Act 1994 (SA); Native Title (Tasmania) Act 1994 (Tas); Land Titles Validation Act 1994 (Vic); and Native Title (State Provisions) Act 1999 (WA). 2.23 One result of the Native Title Act 1993 (Cth) was that it overrode conflicting state legislation. In Yanner v Eaton (1999) 201 CLR 351; 166 ALR 258, Mr Yanner was charged and convicted with breaches of the Fauna Conservation Act 1974 (Qld) by having in his possession the remains of a juvenile estuarine crocodile, a protected species under the 1974 Act. He successfully argued before the High Court that as s 211 of the Native Title Act gave him the right as an Indigenous Australian to hunt in a traditional manner, this provision conflicted with the ban in the state Act. Applying the principle in s 109 of the Constitution, the High Court held that the state Act did not extinguish his native title rights. Amazingly, the formal process of handing over ownership of the islands at the heart of the Mabo case only took place in December 2012 when the Queensland Government handed over a Deed of Grant to the body corporate representing the native title holders: Return of Mabo’s Land to Traditional Owners, 14 December 2012, media release, .

Whether Aborigines are Subject to the Law: Sovereignty APPLICATION OF THE CRIMINAL LAW The 19th century debate 2.24 There was a debate in a number of colonies in the 19th century as to whether or not Aboriginals were subject to the law. The view was taken for a time that while the law did apply to criminal acts by Aboriginals on whites and vice versa, crimes committed between Aboriginals were not within the purview of the law. In R v Ballard [1829] NSWSupC 26 the Supreme Court of New South Wales held that where an Aboriginal committed an offence, in this case murder, against another Aboriginal, the position was, in the words of Forbes CJ: ‘I believe it has been the practice of the Courts of this country, since the Colony was settled, never to interfere with or enter into the quarrels that have taken place between or amongst the natives themselves’. One reason for adopting this view was because the natives could not be expected to be acquainted with English law, though it was explained that English law would apply in all transactions between the natives and British subjects. [page 41] 2.25 In 1837 the Secretary of State for the Colonies informed the Governor of New South Wales that Aboriginals were subjects of the Queen and were in consequence protected by the law. He specifically wrote: ‘If the rights of the aborigines as British subjects be fully acknowledged, it will follow that when any of them comes to his death by the hands of the Queen’s Officers, or of persons acting under their command, an

inquest should be held, to ascertain the causes which led to the death of the deceased’: Glenelg to Bourke, 26 July 1837, BPP (Australia) Vol 5, p 526. The British rejected the contrary argument that Aboriginals were aliens with whom a war can exist, in part because it contradicted the claim of the sovereignty over every part of the continent of ‘New Holland’ as Eastern Australia was still called at that time. 2.26 All of this followed the decision in 1836 of R v Murrell and Bummaree [1836] NSWSupC 35 in which Jack Congo Murrell, an Aboriginal, was indicted for the ‘wilful murder’ of another Aboriginal named Jabbingee. Despite the argument of Murrell’s counsel that the law should take no notice of crimes between Aboriginals, ‘crimes inter se’ as they were called, the court rejected this submission. The court noted that it had for many years ‘tried and even executed Aboriginal natives in this colony’. In so holding the court rejected earlier cases in which it had been held that Aboriginals were not amenable to British law for offences committed against their own ‘countrymen’: R v Dirty Dick (1829) in T D Castle and B Kercher (eds), Dowling’s Select cases 1828–1844, Francis Forbes Society, Sydney, 2005, pp 2–5.

The current position 2.27 In the 20th century, a number of efforts were made to argue that the criminal law did not apply to Aboriginal defendants since the court was not said to have jurisdiction in the matter. The first case on the point involved a defendant charged with murder and the court rejected the argument following the reasoning in R v Murrell. The court stressed that since British sovereignty had been established over Australia there was no basis for the argument. This necessarily excluded a parallel Aboriginal sovereignty or legal system: R v Wedge [1976] 1 NSWLR 581. Throughout, the emphasis has been on equal treatment before the law. In Walker v R [1989] 2 Qd R 79 the Queensland Court of Criminal Appeal held that an Aboriginal man

facing criminal charges was not entitled to a jury of Aboriginals only. Despite invoking Magna Carta and its references to a jury of his peers, the court held (at 85) that ‘in contemporary Australia, all individuals are equal before the law, and, whatever else may be said about those who comprised the jury … in this case, they were at law certainly all his equals, as he was theirs’. A line of cases on arguments by Indigenous defendants in criminal cases, where the defendant sought, as in Walker v R, a jury composed of Indigenous persons, or at least a jury with Indigenous members, shows that there is no such requirement in Australian law: R v Grant and Lovett [1972] VR 423; R v Buzzacott (2004) 149 A Crim R 320 at 327, [27]–[28] (ACT SC), citing cases from Victoria and Western Australia. [page 42] 2.28 The post-Mabo attempts to run this argument have also been unsuccessful. In Walker v State of New South Wales (1994) 182 CLR 45; 126 ALR 321 Mason CJ dealt with an Aboriginal applicant charged with several criminal offences, including the discharge of loaded firearms with intent to do grievous bodily harm and assault. The Chief Justice rejected the argument that because Mabo established that native title was recognised by Australian common law it must follow that the Mabo case also established an Aboriginal system of law. His Honour rejected the following propositions: that there co-existed a system of Aboriginal criminal law; that Aboriginals were not bound by New South Wales criminal law because they had not consented to British sovereignty; that there existed a separate body of Aboriginal customary criminal law and stressed that Australian criminal law cannot

accommodate an alternative body of law operating alongside it (at 50); and that the criminal law only applied to Aboriginal people if they accepted that law. There are also several territory and state cases to the same effect: R v Buzzacott (2004) 149 A Crim R 320 (ACT SC); McDonald v Director of Public Prosecutions (2010) 26 VR 242; Walker v South Australia (No 2) (2013) 215 FCR 254 at 258, [26]. The principle that the law binds everyone, including Aboriginals, had previously been applied in a civil case where an Aboriginal debtor sought to argue that he was not bound by the Bankruptcy Act 1966 (Cth): Re Phillips; Ex parte Aboriginal Development Commission (1987) 13 FCR 384; 72 ALR 508. One reason for the conclusions in Walker was that everyone should stand equal before the law and the criminal law is inherently universal in its operation.

Constitutional Recognition THE PRESENT COMMONWEALTH POSITION 2.29 Prior to the 1967 referendum, which passed by a majority of 90.77 per cent of the votes cast, the Commonwealth did not have a general legislative power under s 51 of the Commonwealth Constitution to pass laws for Indigenous Australians. Such a general power resided only in the states. Initially, the Commonwealth legislated in 1902 to exclude ‘aboriginal natives’ of Australia from the franchise: Commonwealth Franchise Act 1902 (Cth) s 4. However, this did not mean that the Commonwealth could not pass laws that affected Indigenous Australians, for under s 41 the Commonwealth Parliament amended the Electoral Act in 1962 to permit Indigenous

Australians to vote in Commonwealth elections: Commonwealth Electoral Act 1962 (Cth). At the time, Queensland, Western Australia and the Northern Territory did not permit Aboriginals to vote in state or territory elections. The 1967 amendment changed the language of s 51(xxvi) to the present head of legislative power which allows the Commonwealth Parliament to make laws [page 43] with respect to ‘the people of any race for whom it is deemed necessary to make special laws’. This placitum has been the subject of some case law, which may be summarised as follows. 2.30 The phrase ‘any race’ includes persons of the Aboriginal race; that is, persons who are descended from the inhabitants of Australia immediately prior to European settlement: Gibbs v Capewell (1995) 54 FCR 503; 128 ALR 577 at FCR 506–7. The law must be made for a particular race but need not be for all members of that race. It is sufficient if the law is for a sub-group of that race. Thus, in Kartinyeri v Commonwealth (1998) 195 CLR 337; 152 ALR 540 a Commonwealth law on the Hindmarsh bridge in South Australia was such a law though it only applied to a specific Aboriginal group. If a law is made for all races, as in the Racial Discrimination Act 1975 (Cth), which implements a United Nations convention on the elimination of racial discrimination, it is not supported by s 51(xxxvi), but s 51(xxix), the external affairs power: Koowarta v Bjelke-Petersen (1982) 153 CLR 168; 39 ALR 417. The question of whether such laws had to be beneficial only was considered in Kartinyeri v Commonwealth. The central issue in that

case was whether the Commonwealth Parliament could pass the Hindmarsh Bridge Act 1997 (Cth), which reduced the ambit of a section of the Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (Cth), and to that extent thereby repealed it. The argument was that the Heritage Act was passed for a beneficial purpose — to protect cultural heritage — while the Bridge Act detracted from that purpose and was therefore not beneficial. The court by a majority (Kirby J dissenting) upheld the Bridge Act as supported by s 51(xxvi). The court divided on the question whether such laws had to be solely for the benefit of the race in question and there was no majority on the point. Brennan CJ and McHugh J did not find it necessary to rule on the point, settling the case on the basis that if parliament was authorised to pass the Act it was also authorised to repeal it. Gummow and Hayne JJ held that such laws could either be beneficial or discriminatory. Only Kirby J directly argued that such laws must be beneficial only. While Gaudron J hinted that such laws might be held invalid if not necessary, she sided with the majority and upheld the validity of the Bridge Act. The problem with such a test if it were adopted, which at present it has not, is how it would work. Specifically, what criteria would be used to decide if a law was beneficial or not. There are two possibilities. First, the court would look at the text of the law, but not be necessarily bound by direct statements in the statute about benefit. After all, the parliament cannot by its language declare valid that which is not valid. Otherwise no Act of Parliament would be held to be invalid and there would be no role for constitutional judicial review by the High Court. This would be the orthodox approach. 2.31

The other approach would be more radical and would involve looking at the actual effect of the law. It is unlikely that such an approach would be taken. In the first place, if the law were challenged immediately after its passage, there might be no evidence

[page 44] at all as to its effect. Any discussion of an effects test in that event would then be speculative. On the other hand, if time had passed and there was evidence of how the law worked in practice, an effects test would involve a value judgment by the court on the evidence, and this would take the court beyond its emphasis in constitutional matters on the validity of a law, while avoiding a discussion of the merits or desirability of an enactment. The majority in Western Australia v Commonwealth (1995) 183 CLR 373; 128 ALR 1 at CLR 460–2 rejected the argument that a court could determine whether a law was necessary or not. It was, they said, a judgment for the parliament, not the court, and the court refused to discuss whether some limit might be imposed such as where there was manifest abuse. As to the term ‘special’, the same court held that it does not relate to necessity but to the differential operation of the law upon people of a race. Such a law might confer a right or benefit or disadvantage. In the Western Australian case, the court held that the Native Title Act 1993 (Cth) was a special law that provided a benefit to Aboriginal and Torres Strait Islander holders of native title and was upheld as such.

PROPOSED RECOGNITION IN THE COMMONWEALTH CONSTITUTION 2.32 Despite a petition as early as 1962 requesting amendments to ss 127 and 51 of the Commonwealth Constitution (Commonwealth, Parliamentary Debates, House of Representatives, 4 December 1962, 2833) and a Bill in 1983 that would have led to the repeal of s 25 (Commonwealth, Constitution Alteration (Removal of Outmodes and Expended Provisions) Bill 1983 cl 4), it was only in December 2010 that a 19-person panel was appointed to report on amending the

Commonwealth Constitution to recognise Indigenous Australians. The 300-page report was presented in January 2012. At the time of the appointment of the panel the Commonwealth Government had promised a referendum on amending the Constitution on or before the next federal election due at the latest in November 2013, though this timetable has now been abandoned. The report proposed the following in the body of the Constitution: to recognise that the continent and islands of Australia were first occupied by Aboriginal and Torres Strait Islander people and that they have a continuing relationship with their traditional lands and waters and acknowledging the need to secure their advancement; a new s 127A to provide for the recognition of Indigenous languages. The amendment would also make it clear that English is the national language; a new s 116A to prohibit in all jurisdictions laws that discriminate on the basis of race. Laws to overcome disadvantage would be permitted; and the removal of ss 51(xxvi) (the races power) and 25 (which refers to the disqualification of persons of any race from voting by state law. As no such state laws exist, s 25 is redundant). [page 45] Given the difficulties of securing a constitutional amendment, efforts were made in late 2012 to get an agreement to a Commonwealth Parliamentary Act of recognition and in December 2012 a Bill was introduced into the Commonwealth Parliament. The Aboriginal and Torres Strait Islanders Peoples Recognition Act 2013

has two objectives: to recognise Aboriginals and Torres Strait Islanders as the first inhabitants of Australia; and to institute a referendum to change the Constitution to recognise Aboriginals and Torres Strait Islanders in the Constitution. If the Bill passes there must be a review within 12 months to determine whether the public is likely to support a referendum. The Bill is only designed to last 2 years after which it will cease to operate. 2.33 The current government has mooted a constitutional referendum to recognise Indigenous people in the Constitution to be held sometime in 2017. In July 2015 a meeting was held by the Prime Minister and the Leader of the Opposition with Aboriginal and Torres Strait Islander leaders, to discuss the process leading to a referendum. It was agreed to create a referendum council and to ask the Parliamentary Joint Select Committee on Constitutional Recognition to assist in this process. The Joint Select Committee produced a final report in June 2015 () that put forward three options: 4.88 The committee recommends that the three options, which would retain the persons power, set out as proposed new sections 60A, 80A and 51A & 116A, be considered for referendum. 4.89 The first option the committee recommends for consideration is its amended proposed new section 51A, and proposed new section 116A, reported as option 1 in the committee’s Progress Report: 51A Recognition of Aboriginal and Torres Strait Islander Peoples Recognising that the continent and its islands now known as Australia were first occupied by Aboriginal and Torres Strait Islander peoples; Acknowledging the continuing relationship of Aboriginal and Torres Strait Islander peoples with their traditional lands and waters; Respecting the continuing cultures, languages and heritage of Aboriginal and Torres Strait Islander peoples;

The Parliament shall, subject to this Constitution, have power to make laws for the peace, order and good government of the Commonwealth with respect to Aboriginal and Torres Strait Islander peoples.

[page 46] 116A Prohibition of racial discrimination (1) The Commonwealth, a State or a Territory shall not discriminate on the grounds of race, colour or ethnic or national origin. (2) Subsection (1) does not preclude the making of laws or measures for the purpose of overcoming disadvantage, ameliorating the effects of past discrimination, or protecting the cultures, languages or heritage of any group; 4.90

The committee considers that this proposal:

is legally and technically sound; retains a persons power as per the 1967 referendum result; contains a special measures provision; limits the constitutional capacity of the Commonwealth, states and territories to discriminate; offers a protection for all Australians; is a broad option; had the overwhelming support of Aboriginal and Torres Strait Islander peoples and non-Aboriginal and Torres Strait Islander peoples during the inquiry; and accords with the recommendation of the Expert Panel. 4.91 The second option was proposed by Mr Henry Burmester AO QC, Professor Megan Davis and Mr Glenn Ferguson after their consultation process: CHAPTER IIIA Aboriginal and Torres Strait Islander Peoples Section 80A (1) Recognising that the continent and its islands now known as Australia were first occupied by Aboriginal and Torres Strait Islander peoples; Acknowledging the continuing relationship of Aboriginal and

Torres Strait Islander peoples with their traditional lands and waters; Respecting the continuing cultures and heritage of Aboriginal and Torres Strait Islander peoples; Acknowledging that Aboriginal and Torres Strait Islander languages are the original Australian languages and a part of our national heritage;

[page 47] the Parliament shall, subject to this Constitution, have power to make laws with respect to Aboriginal and Torres Strait Islander peoples, but so as not to discriminate against them. (2) This section provides the sole power for the Commonwealth to make special laws for Aboriginal and Torres Strait Islander peoples. 4.92

The committee considers that this proposal:

is legally and technically sound; retains a persons power as per the 1967 referendum result; is clear in meaning; limits the capacity of the Commonwealth only with regard to discrimination, so states and territories are not affected by constitutional change; is a narrow option; and offers constitutional protection from racial discrimination for Aboriginal and Torres Strait Islander peoples. 4.93 The third option which would retain the persons power is the proposal from the Public Law and Policy Research Unit at the University of Adelaide: 60A Recognition of Aboriginal and Torres Strait Islander Peoples Recognising that the continent and its islands now known as Australia were first occupied by Aboriginal and Torres Strait Islander peoples; Acknowledging the continuing relationship of Aboriginal and Torres Strait Islander peoples with their traditional lands and waters; Respecting the continuing cultures and heritage of Aboriginal and

Torres Strait Islander peoples; Acknowledging that Aboriginal and Torres Strait Islander languages are the original Australian languages and a part of our national heritage; (1) The Parliament shall, subject to this Constitution, have power to make laws for the peace, order and good government of the Commonwealth with respect to Aboriginal and Torres Strait Islander peoples. (2) A law of the Commonwealth, a State or a Territory must not discriminate adversely against Aboriginal and Torres Strait Islander peoples.

[page 48] 4.94

The committee considers that this proposal:

is legally and technically sound; retains a persons power as per the 1967 referendum result; is clear in meaning; is both a narrow and a broad option; limits the ‘adverse discrimination’ provision to Aboriginal and Torres Strait Islander peoples; and limits the capacity of the Commonwealth, states and territories constitutionally to discriminate.

2.34 The problem at present is that there is no consensus about what form recognition should take. The following options have been publically discussed: Do nothing. There are critics who say that recognition would be divisive and introduce special rights for an ethnic minority into the Constitution. This is a minority view and given the commitment of the two major political parties in favour of recognition is not likely to prevail. Symbolic recognition along the lines of the state models discussed below; that is, the acknowledgment of the place of

Indigenous peoples and cultures but no substantive rights. Substantive change, including a requirement that Indigenous Australians be consulted before changes are made to laws that affect them. This plan would face major problems such as: —

What would count as a law mandating consultation? Obviously a law on native title would count but what about a general tax law that also affects Indigenous persons?

—

Who would have to be consulted? Would an elected Indigenous body have to be constituted for this purpose?

—

How long would the consultation take? If it dragged on, would it slow the legislative process?

—

If the advice given were ignored would this lead to further legal or political disputes?

Substantive changes such as the elimination of the race power and a new statement forbidding racially discriminatory legislation. The objection to s 51(xxvi) — the power of the Commonwealth Parliament to make laws for any race — is that it may be used to make laws that are, on their face, discriminatory. On the other hand, the elimination of the race power might make it difficult to make laws for Indigenous persons at all. [page 49] 2.35 The practical problem at this stage is that unless there is agreement about the model, both on the part of various Indigenous groups and on the part of the major political parties, a referendum might either not be held at all, or might fail. The formula for a successful referendum, such as the 1967 referendum that inserted the race power

into the Constitution, is strong agreement by the major actors and careful education of the public. At present, as an Australian university poll showed in March 2015, there is overwhelming public support for Indigenous recognition in the Constitution: 82 per cent were in favour of removing clauses from the Constitution that discriminate on the basis of race and 72 per cent were in favour of recognising Indigenous people in the Constitution: .

RECOGNITION IN STATE CONSTITUTIONS 2.36 Historically, the power to legislate for Indigenous people has been a state responsibility and there are many state Acts on Indigenous matters, including land and heritage. But the state Constitution Acts have, until recently, been silent on Aboriginal matters. In 2004 Victoria was the first jurisdiction to amend its Constitution Act to provide for recognition of Aboriginal people: Constitution (Recognition of Aboriginal People) Act 2004 (Vic) s 3, inserting a new s 1A into the Constitution Act 1975 (Vic). In a model for subsequent state Constitution Acts, the Victorian amendment both recognises Aboriginal people as the original custodians of the land, but also makes it clear that the amendment does not create any new legal rights or a right to bring civil actions against the state. In 2010 the Queensland and New South Wales Parliaments added to the preamble of their respective Constitution Acts recognition of Indigenous peoples. In both cases the revised preamble acknowledged and honoured Indigenous people as first peoples with a spiritual, social, cultural and economic relationship with their traditional lands and waters: Constitution (Preamble) Amendment Act 2010 (Qld) s 4; Constitution Amendment (Recognition of Aboriginal People) Act 2010 (NSW) s 3. South Australia passed similar legislation 3 years later: Constitution (Recognition of Aboriginal Peoples) Amendment

Act 2013 (SA). Impressive as this might seem, it was made clear in all three Acts that nothing in these amendments created any legal right or liability or gave rise to any civil cause of action. Of course, this does not rule out a cause of action for land under state native title legislation. It would seem then that the preambles are symbolic and do not create any new rights in Indigenous people or impose any new legal duties on the state.

THE STOLEN GENERATION 2.37 The term ‘stolen generation’, first recorded in 1982, was popularised by a report commissioned by the Federal Attorney-General in 1997 entitled Report of the National Inquiry into the Separation of Aboriginal and Torres Strait Islander Children from Their Families in which a former High Court Justice, Ronald Wilson, took evidence on the extent and the effects of the practice of removing Indigenous children from their [page 50] families. This group was called ‘the Stolen Generation’, though whole generations were not taken as the removals were arbitrary, not systematic. It is estimated that up to 100,000 children were removed from their families. In law, the children were not stolen, but removed under the laws in existence at the time. The High Court has refused to rule that such laws were invalid: Kruger v Commonwealth (1997) 190 CLR 1; 146 ALR 126. It is abundantly clear, however, that the psychological impact of the removals was devastating for the families and the children involved and that it was a great injustice: Cubillo v Commonwealth (2001) 112 FCR 455; 183 ALR 249 at FCR 483. The

report recommended, amongst other things, official apologies and the system of compensation for those who had been removed. 2.38 The record of plaintiffs who were taken and who subsequently sued for damages for their removal is mixed. The first major case was Cubillo v Commonwealth, in which a claim for damages due to false imprisonment, breach of statutory duty, negligence and breach of fiduciary duty was defeated. The claim failed on the grounds that it was out of time, because it could not be proved that the removal was manifestly unreasonable, and because the Commonwealth suffered irreparable prejudice through the absence of material witnesses. Nevertheless, the trial judge found that Cubillo had suffered significant psychological damage due to the removal. 2.39 In Trevorrow v State of South Australia (No 5) (2007) 98 SASR 136, damages were awarded to a man removed in 1958 when he was just 13-years-old, at a time when the legal advice was that such removals under the Aborigines Act 1934–1939 (SA) were not authorised. Trevorrow’s parents had not given their consent to his removal into state care and attempts to recover him by his parents were fobbed off by state authorities. In 2005 a civil action for damages for false imprisonment was commenced, resulting in an award of $525,000. An appeal against the decision in 2010 was dismissed: State of South Australia v Lampard-Trevorrow (2010) 106 SASR 331. Apologies to the people removed and to their families have been made by several state parliaments () and, most notably, by the Commonwealth Parliament in February 2008: Commonwealth, Parliamentary Debates, House of Representatives, 13 February 2008, p 167. The text of the Commonwealth apology is as follows:

Today we honour the Indigenous peoples of this land, the oldest continuing cultures in human history. We reflect on their past mistreatment. We reflect in particular on the mistreatment of those who were Stolen Generations — this blemished chapter in our national history. The time has now come for the nation to turn a new page, a new page in Australia’s history by righting the wrongs of the past and so moving forward with confidence to the future. [page 51] We apologise for the laws and policies of successive Parliaments and governments that have inflicted profound grief, suffering and loss on these our fellow Australians. We apologise especially for the removal of Aboriginal and Torres Strait Islander children from their families, their communities and their country. For the pain, suffering and hurt of these Stolen Generations, their descendants and for their families left behind, we say sorry. To the mothers and the fathers, the brothers and the sisters, for the breaking up of families and communities, we say sorry. And for the indignity and degradation thus inflicted on a proud people and a proud culture, we say sorry. We the Parliament of Australia respectfully request that this apology be received in the spirit in which it is offered as part of the healing of the nation. For the future we take heart; resolving that this new page in the history of our great continent can now be written. We today take this first step by acknowledging the past and laying claim to a future that embraces all Australians. A future where this Parliament resolves that the injustices of the past must never, never happen again. A future where we harness the determination of all Australians, Indigenous and non-Indigenous, to close the gap that lies between us in life expectancy, educational achievement and economic opportunity. A future where we embrace the possibility of new solutions to enduring problems where old approaches have failed. A future based responsibility.

on

mutual

respect,

mutual

resolve

and

mutual

A future where all Australians, whatever their origins, are truly equal partners, with equal opportunities and with an equal stake in shaping the next chapter in the history of this great country, Australia.

2.40 The language of the Commonwealth apology was offered in the spirit

of reconciliation and in the hope that there would be a future based on mutual respect, mutual resolve and mutual responsibility. The apologies, while of great political and emotional significance, do not create any legal liability in the jurisdictions concerned, but were regarded as an important part of the reconciliation process. At the time of the apology, general promises were made to close the gap between Indigenous Australians and the rest of the population. Despite the Commonwealth apology, Bills in 2008 and September 2010 to provide for Commonwealth compensation for those taken were rejected by the Senate. In contrast, Tasmania passed legislation to provide for ex gratia payments [page 52] to the Stolen Generations in 2006. The Tasmanian Act provides for payments to Aboriginal persons who before 31 December 1975 had been taken under various state Acts as a ward of the State for a period of 12 months: Stolen Generations of Aboriginal Children Act 2006 (Tas) s 5. A fund of $5 million was set up to provide for these discretionary payments. The amount is decided upon by an assessor and is not to exceed $5000 in the case of an individual or $20,000 for a family group. The award is not subject to judicial review and the decision of the assessor is final. South Australia became the second jurisdiction to provide for compensation. In late November 2015 the state government announced that $11 million would be set aside to compensate the Stolen Generations in that state; $6 million would be available to survivors, estimated at 300 persons who would be eligible to payments of between $20,000 and $50,000, to be determined by an independent assessor: The Australian, 20 November 2015, p 4:

(accessed 20 November 2015). 2.41

Western Australia set up a slightly broader scheme in 2007 when the state government set up the Redress Scheme, offering compensation for the ‘Forgotten Australians’, which included members of the Stolen Generations, as well other victims of abuse. The scheme was open for applications from May 2008 to April 2009. Redress WA had a total budget of $114 million, $90.2 million of which was set aside for ex gratia payments. Initially the government offered a maximum of $80,000, but due to a ‘large number of severe claims’ lowered that amount in late 2009 to $45,000. However, to qualify for this amount a person must have suffered ‘very severe abuse and/or neglect with ongoing symptoms and disability’. Over 10,000 people in Western Australia registered with Redress WA by the time the scheme closed on 30 April 2009. Almost half of them were members of the Stolen Generations.

FURTHER READING BOOKS AND JOURNALS J Crawford, ‘The Aboriginal Legal Heritage: Aboriginal Public Law and the Treaty Proposal’ (1989) 63 Australian Law Journal 392– 403. B A Keon-Cohen, ‘The Mabo Litigation: A Personal and Procedural Account’ (2000) 24 Melbourne University Law Review 893–951. A Mason, ‘The Rights of Indigenous Peoples in Lands Once Part of the Old Dominions of the Crown’ (1997) 46 International and Comparative Law Quarterly 812.

H McCrae et al, Indigenous Legal Issues, 4th ed, Lawbook Co, Sydney, 2009. P McHugh, Aboriginal Societies and the Common Law, Oxford University Press, Oxford, 2004. P H Russell, Recognizing Aboriginal Title: The Mabo Case and Indigenous Resistance to English-Settler Colonialism, University of Toronto Press, Toronto, 2005.

[page 53]

STUDY QUESTIONS 1.

What is the difference between a settled and conquered colony? Which was Australia and what did its status mean for Indigenous land rights in 1788?

2.

What difference did the Mabo court’s reinterpretation of sovereignty make to Indigenous land rights?

3.

Was Australia ever terra nullius? How was the concept used by the Mabo court?

4.

In late 2012 an Indigenous group occupied Musgrave Park in South Brisbane creating what they called the ‘Brisbane Sovereign Embassy’. They claimed that the park was their land and that they exercised sovereignty over it. Does their argument have any legal merit?

5.

What are the implications of adopting a beneficial test for the exercise of Commonwealth legislative power under s 51(xxvi) of the Constitution?

6.

What would be the advantages and the disadvantages of adopting the recommendations of the Report on Recognising Aboriginal and Torres Strait Islander Peoples in the Constitution (2012) as amendments to the Constitution? Would such amendments, if made, be merely symbolic or would they be substantive in nature?

7.

Should the Commonwealth follow the lead taken

by Victoria, Queensland and New South Wales in recognising Indigenous peoples in the Constitution?

PROBLEM QUESTION Callum Clayton-Dixon, the Chairperson of the Aboriginal Provisional Government, and Australian citizen, arrived at Brisbane Airport in April 2015 and presented an Aboriginal passport. An immigration officer refused to accept it as a valid passport. Mr Clayton-Dixon was however allowed to enter the country once it was established by other means that he was an Australian citizen. He argued that Aboriginal people had never ceded sovereignty over Australia and that he would continue to use his Aboriginal passport: . Indeed, in August 2015 he entered the Solomon Islands on his Aboriginal passport and presented the same passport to Australian immigration on his return to Brisbane: . Does Mr Clayton-Dixon’s argument about Aboriginal sovereignty have any merit in current Australian law?

[page 54]

CHAPTER

3

The Rule of Law LEARNING OBJECTIVES In this chapter you will learn about: Rule by Law vs Rule by Men Changes Made in 1689 Diceyean Theory Formal vs Substantive Theories International Dimension

[page 55]

Introduction 3.1

The rule of law is not a ‘rule’ of law but a phrase that refers to the general notion of constitutional government, the core element of which is that all persons must act within the bounds of the law. It is not a concept that may be precisely defined but its constituent elements may be identified: Sagar v O’Sullivan (2011) 193 FCR 311; 278 ALR 456 at FCR 325, [78]. One of these elements is that everyone is entitled to equality before the law: Green v The Queen (2011) 244 CLR 462; 283 ALR 1 at CLR 472, [28]. It is a phrase used in this sense in many cases, but few statutes, one notable example of which is the preamble to the Charter of Rights and Responsibilities Act 2006 (Vic). In this chapter we will consider several meanings of the term. We will begin by considering the distinction between rule by men and rule by law, then turn to what the modern Australian courts have said about this important principle of our public law. The chapter then considers the contribution of several legal writers and what they have said about the rule of law, especially the influential 19th century English author Albert Venn Dicey. The chapter also considers the contribution of modern legal philosophers to the elucidation of the concept. We will see that the rule of law comes in a formal (thin) version that has emerged from legal history and which is still largely subscribed to by modern judges. Lastly, there are substantive (thick) theories that have insisted that the rule of law entails certain content as to the laws. These theories are normative for they prescribe an ideal state of affairs.

Rule by Law vs Rule by Men 3.2

The phrase ‘the rule of law’ as used in this chapter only entered the English language in 1500 but the ideas behind it are much older. The relationship between law and power, especially what we would now call ‘executive power’, has been the subject of a long debate in Western legal culture. To understand the historic importance and relatively late arrival of the idea of the rule of law in a modern sense we will consider here the origins of the debate. Of course, lawyers are also (perhaps more so) interested in the survival and transformations of ideas, but we must also consider the beginnings of this important legal idea.

3.3

In the West, beginning with the Ancient Greeks, the question was posed as to what would be the best form of government: rule by man, meaning the best men such as Plato’s Philosopher King, or rule by law, which was initially regarded as a second best option: Plato, The Republic, F Cornford (ed and trans), Oxford University Press, Oxford, 1941, 427a. Later thinkers such as Aristotle came to recognise that rule by law was a more realistic option to rule a complex community and this conclusion was reached after he conducted one of the world’s first comparative surveys of constitutions: Aristotle, The Politics, T A Sinclair (ed and trans), Penguin Classic rev ed, Harmondsworth, 1982. He was aware, of course, that judges are also fallible, and recommended that ‘it is proper that laws, properly enacted, should themselves define the issue of all cases as far as possible, and leave as little as [page 56] possible to the discretion of the judges …’: Aristotle, The Rhetoric, J H Freese (trans), William Heinemann Ltd, London, 1959, 1854b. Of

course, laws do not simply operate without the intervention of human judges and officials. The contrast was designed to highlight the difference between a system where the ruler ruled without any laws at all and one in which officials and rulers were obliged to apply and interpret and generally respect a system of laws. The emphasis in all of these ancient debates was on how to produce a virtuous citizen in a virtuous society. Law was seen as a means by which to rule, rather than as a constraint on the King, though in a later work, The Laws (T L Pangle (trans), University of Chicago Press, Chicago, 1988, 717d), Plato made it clear that the law should be the master of the government, to restrain potential despots. The law was also seen as a constraint on judges, who were to be left very little discretion in making their decisions: Aristotle, The Politics, 1282a, 1287a. It would be a mistake to assume that the context of these debates, and the meaning attributed to these ideas, would be recognised today. Ancient Greek society was not democratic or free in a modern sense and its notion of liberty, which, in Athens at least, the Ancient Greeks praised on many occasions, was not the sort of individual liberty that we have come to expect in developed modern countries. But the contrast between rule by law and rule by men has endured and by the 18th century the choice was still said to be between a government of laws or a government of men. It was this constitutional vocabulary that became part of the legal inheritance of the settlers who arrived in Australia after 1788: D Neal, The Rule of Law in a Penal Colony, Cambridge University Press, Cambridge, 1991, Ch 5. 3.4

In political practice these debates in Ancient Greece did not mean very much, even though all ancient civilizations had legal codes, some of prodigious length and complexity. One lasting contribution to the debate about the meaning of the rule of law was the suggestion by Aristotle that there was also a normative element in the notion, in that it was not enough to have the rule of law, but the rule of well-enacted

or good laws: Aristotle, The Politics, 1293b34. In other words, there was, from the beginning, an evaluative element in the concept which meant that one might criticise the positive law if it were found to be unwise or unjust. Yet the view took hold in the late Roman period that the Prince was above the law. It was this idea that was transmitted via Latin Christianity to England in the medieval period. Despite the view that the King was above the law, a new and eventually revolutionary idea emerged. In the late 13th century a law book appeared in England by Bracton, titled On the Laws and Customs of England (circa 1280), S E Thorne (trans), Belknap Press, Cambridge, Massachusetts, 1968. The book was assumed, perhaps wrongly, to have been written by Henry De Bracton, the King’s leading justiciar or judge. At the beginning of the book there is a section entitled ‘The King Has No Equal’. The burden of the passage is that the King is not subject to any other person on Earth. This section of the book ends with the words: ‘No one may presume to question his acts, much less contravene them’: op cit, Vol 2, p 33. Despite the apparent absolute and uncontrolled nature of royal power, the section on the King also includes the important words: ‘The King must not be under man but under God and under the law’: op cit, Vol 2, p 33. [page 57] At the time, while it was accepted that the King was limited by moral considerations, there were no effective institutional arrangements to ensure his compliance with the law. In fact, the impulse to obey the law was said to come only from the monarch’s sense of moral obligation and nothing else. In short, despite doctrinal assertions that the King was subject to the law and the argument that

no King should rule without laws, the acceptance of the idea that the monarch was actually subject to the law took some centuries to find effective institutional expression. Nevertheless, in the medieval period a start was made because during the 15th century, in particular, English Kings assented to legislation by which they promised to accord their subjects due process of law: Adler v District Court of New South Wales (1990) 19 NSWLR 317 (CA). At the time, this was no more than a limited and probably unenforceable promise by the King to abide by the law. Yet it did introduce the idea that the King had legal obligations to his subjects. This development was in fact part of a wider European development and should not be seen as uniquely or particularly an English achievement, though it is from England that Australia draws this particular constitutional idea. 3.5

In the 16th century in England the constitutional practice emerged that major changes in national policy were made by Acts of Parliament. In the early 17th century, when King James I and his successors sought to rule by the prerogative and, in particular, to raise taxes by extra-parliamentary means, a conflict ensued with parliamentary forces and some sections of the judiciary. At the beginning of the century, Bracton’s comment about the King being under God and the law was resurrected and translated into a new argument that the King could not judge cases himself and that his prerogative powers were limited: Connor v Sankey [1976] 2 NSWLR 570; (1976) 21 ALR 317 at NSWLR 599G–600A–B (CA). The longterm result was a civil war in which Charles I was executed in 1649. There then followed the institution of a ‘republic’ called a Commonwealth under Oliver Cromwell until the restoration of the monarchy in 1660. The constitutional struggle did not end there and in another crisis in 1688 James II fled the realm and was held by a convention of both Houses of Parliament to have abdicated the throne. The Dutch Protestant King William of Orange and his English

wife Mary were then invited to take the English throne on the basis of a constitutional settlement called the Declaration of Rights. Later that year the Declaration was given statutory expression as the Bill of Rights: Bill of Rights (1689) 1 William and Mary, Sess 2 c 2. The Bill of Rights introduced the following key ideas, which are still part of our public law: the King could not suspend the law or dispense with the law; taxes could only be imposed with the consent of parliament, normally expressed in primary legislation; the people have a right to petition for the redress of grievances; [page 58] standing armies were restricted; elections to parliament were to be free; members of parliament were assured the right to freedom of speech; excessive bail and cruel and unusual punishment were outlawed; juries were not to be manipulated; and parliaments ought to be held frequently.

Despite these ideas, the Bill was, in fact, also an expression of the view that it was important to settle the Crown upon a Protestant King and to prevent the rise ever again of Catholic monarchs in England.

No Suspension of, or Dispensing with, the Laws by the Executive 3.6

Two of the most important principles embodied in the Bill of Rights were that the monarch could neither suspend nor dispense with the laws. Despite their age these two principles still form part of Australian public law. They do so because in those jurisdictions with

Imperial Acts legislation the Bill of Rights is retained as part of the statutory law of the jurisdiction. In those jurisdictions without Imperial Acts legislation all British legislation in force on a certain date, usually about the time the colony was founded, remains part of the statute law of the state or territory unless repealed or excluded from local law.

NO SUSPENSION OF THE LAWS BY THE EXECUTIVE 3.7

By suspension of the laws the Bill refers to the practice whereby the monarch would simply suspend from all operation an Act passed by the legislature. The implications for the constitutional order of this practice are obvious. It meant that though the legislature had passed a law and intended it to come into operation, the executive had decided, without legislative approval, in effect to ignore the law. This set the executive above the law and meant that suspension amounted to a veto over statutes. Modern examples of suspension of the laws are rare but in 1976 the Supreme Court of New Zealand heard a case on this part of the Bill of Rights: Fitzgerald v Muldoon [1976] 2 NZLR 615. In that case, there was a statutory requirement on all employees to make compulsory contributions to a national superannuation scheme. An election was held in which the major issue was the status of this superannuation scheme. The incoming Prime Minister, Robert Muldoon, announced at a press conference that since the government [page 59] intended to repeal the requirement to pay into the scheme when parliament met, no one would be obliged to make contributions in the meantime. Parliament was not expected to meet for 6 months. The

superannuation board set up under the Act to administer the contribution system accepted this announcement and acquiesced. Fitzgerald, a public servant, sought a declaration from the court that this announcement was a breach of the Bill of Rights in that it amounted to a suspension of the superannuation law. Wild CJ held first that the Bill of Rights did apply in New Zealand. Second, the judge held that the phraseology of s 1 of the Bill of Rights, which reads: ‘That the pretended power of suspending of laws or the execution of laws by regal authority without consent of Parliament is illegal’, applied to the modern executive and its members such as the Prime Minister as well as to the monarch. On the main question the court agreed with the plaintiff Fitzgerald that the announcement did amount to a suspension of the laws and was, therefore, illegal. The court did not simply issue a declaration but adroitly avoided a conflict with the executive by refusing to order the superannuation machinery to be restarted when the court knew that the scheme would be abolished in 6 months. Instead, the court adjourned the matter for 6 months. In effect, the court vindicated the claim about the Bill of Rights but did not disturb the substance of the decision announced by the Prime Minister. At the time, the Prime Minister defended his actions as being in accordance with precedent in that other governments had also suspended laws before the parliament had repealed them. 3.8

There is no doubt that in an appropriate case this principle would be applied in Australia. In R v Stead [1994] 1 Qd R 665 (CA) the Queensland Court of Appeal was obliged to consider an indemnity given by the state Attorney-General to a man involved in a carstealing ring that operated in Brisbane. In that case, Stead had been convicted of offences but argued that another man, Reisenweber, had given inadmissible evidence at his trial in exchange for an indemnity. The argument on appeal was that the evidence given by Reisenweber

was tainted and should have been excluded at Stead’s trial. The appellant argued that the indemnity was illegal and was too high a price to pay for the administration of justice. At one point in the judgment of the court, consideration was given to the question of whether the indemnity amounted to a dispensing or suspending of the law. The court referred to the Bill of Rights provisions and held (at 669) that while an indemnity might be issued in respect of past offences to an individual, an indemnity could not be issued in respect of future acts since ‘neither the Governor, nor any delegate from him or her, has power to suspend or dispense with the laws or their execution, or with any statute’: cf Fitzgerald v Muldoon [1976] 2 NZLR 615 at 622–3. Of course, the rule that the executive may not suspend a law does not apply if the suspension of a law is carried out by an Act of Parliament. But if a law is to be suspended a statute is required to bring this about as in the Swine Compensation (Partial Suspension) Act 1980 (Vic) and the Cinematograph Films (Further Suspension) Act 1985 (NSW) s 2, for example. [page 60]

NO DISPENSING WITH THE LAWS BY THE EXECUTIVE 3.9

The second great principle in the Bill of Rights with direct relevance to the idea of the rule of law is to be found in s 2, which states: ‘The pretended power of dispensing with laws or the execution of laws by regal authority, as it hath been assumed and exercised of late, is illegal’. At the time, this reference to the dispensing with the laws referred to the practice of James II of exempting Catholics and others from the requirement to take an oath subscribing to the tenets of the Church of England as a condition to securing a public office. In effect,

the Test Act which imposed this requirement imposed what we would call a loyalty oath, in this case loyalty to the Church of England. Prior to this period, English monarchs had regularly dispensed with legislation. In modern times, s 2 on ‘dispensing with the laws’ has been cut free from its original purpose and now applies wherever the executive seeks to exempt a person or group from compliance with a statute, again without parliamentary consent as evidenced by legislation. Unlike suspension of the laws, where the law does not apply to anyone, dispensing with the laws generally involves applying the law but not to certain groups or individuals: R v Catagas (1977) 81 DLR (3d) 396 at 398 (Man CA). This was the issue in a case from Manitoba in 1977 where the executive in the province had announced in 1968 that Indians were not obliged to abide by the Migratory Birds Convention Act 1970 (Can). That Act sought to protect certain species of birds from being hunted or captured but the Crown had decided that Indians did not have to comply with its provisions by announcing that no prosecutions would be brought against Indians for offences under the Act. Larry Catagas was such an Indian and he had been found in possession of six ducks — protected species under the Act. At first instance the Provincial Court acquitted Catagas on the basis of the noprosecution policy. The Crown appealed to the County Court, which dismissed the appeal. In a further appeal to the Manitoba Court of Appeal the Crown succeeded in its argument that the policy announcement of 1968 was ‘dispensing with the laws’ and was, therefore, illegal. The court relied for its conclusion on a previous decision of the Supreme Court of Canada in which that court had held that the Migratory Birds Convention Act prevailed over a non-statutory agreement exempting Indians from compliance with the Act. In addition, the court concluded that the policy was a clear case of the exercise of a

purported dispensing power by executive action in favor of a particular group. The court said (at 400) that ‘such a power does not exist’. The court disposed of the argument that because the purpose of the no-prosecution policy was benevolent that this was somehow a justification for the policy. Well-intentioned illegal acts are still illegal. The court also drew a distinction between dispensing with the law, that is, a blanket policy of non-enforcement against a certain group, and a lawful exercise of discretion not to prosecute in a particular case. The authorities have discretion not to enforce the law in individual cases and normally the courts will not interfere with this. Of course, it may be a [page 61] question, not raised in Catagas, whether an unbroken series of noprosecutions in favour of individuals belonging to a group would amount to a dispensing of the execution of the laws. So far no court has had to consider this point. Lastly, the court explained the important rationale for the nodispensing principle. As Freedman CJ, who gave the judgment of the court in R v Catagas, put it (at 401): Today the dispensing power may be exercised in favour of Indians. Tomorrow it may be exercised in favour of Protestants, and the next day in favour of Jews. Our laws cannot be so treated. The Crown may not by Executive action dispense with laws. The matter is as simple as that, and nearly three centuries of legal and constitutional history stand as the foundation for that principle.

In the result, the court allowed the appeal, set aside the acquittal of Catagas in the lower court, and substituted a verdict of guilty. The

court also remitted the matter back to the provincial court to deal with the sentence. Though not relying upon Catagas, Brennan J referred to the no dispensing of the laws principle in his judgment in A v Hayden (No 2) (1984) 156 CLR 532; 56 ALR 82. Noting with approval the comments of jurists that the dispensing power was replete with absurdity and might be converted to the most dangerous purposes, he observed (at CLR 580) that the Bill of Rights abolished the dispensing power and added: ‘Whatever vestige of the dispensing power then remained, it is no more.’ 3.10 This ancient and fundamental constitutional principle was discussed by the High Court in Port of Portland Pty Ltd v State of Victoria (2010) 242 CLR 348 at 358–60, [9]–[13]. In that case, it was argued that a contract between the company and the state government of Victoria was beyond the power of the executive because, amongst other things, it amounted to a dispensing of a state law. The court pointed out that the Bill of Rights was part of the law of Victoria and that the Bill reinforced what is a settled constitutional principle. Since the Bill of Rights 1688 it is also a principle from which there is no turning back. 3.11

In all of these discussions the assumption is that the executive cannot dispense with the law unless the executive has been given statutory authorisation to do so. Modern statutes allow the executive to waive compliance with a law in particular cases. This is usually done to permit decisions to be made to deal with anomalous cases. Thus, in most equal opportunity or anti-discrimination Acts, for example, there is a statutory power given to the commissioner or the tribunal to waive compliance with or to grant exemptions from compliance with the Act: Sex Discrimination Act 1984 (Cth) s 44; Disability Discrimination Act 1992 (Cth) s 55; Age Discrimination Act 2004

(Cth) ss 34–44; Discrimination Act 1991 (ACT) s 109; AntiDiscrimination Act 1977 (NSW) s 126; Anti-Discrimination Act 1994 (NT) s 59; Anti-Discrimination Act 1991 (Qld) s 248(b); Equal Opportunity Act 1984 (SA) s 92; Anti-Discrimination Act 1998 (Tas) s 57; Equal Opportunity Act 1995 (Vic) s 83; Equal Opportunity Act 1984 (WA) s 135. [page 62] 3.12

Thus, a distinction exists between dispensing with the law and the exercise of discretion in an individual case not to enforce the law. This latter discretion has been the subject of a significant body of case law in Australia. The principle is that the police or other agencies charged with the enforcement of the law, such as the tax authorities (Smiles v Commissioner of Taxation (1992) 35 FCR 405; 107 ALR 439 at FCR 408), a department of conservation (Churchill Fisheries Export Pty Ltd v Director-General of Conservation [1990] VR 968 at 983ff (SC)) or a civil aviation department (Harcourt v Minister of Transport [1973] FC 1181 at 1188–9 (Canadian Federal Court)), are not obliged to enforce the law on every occasion on which it has been breached. Such practices are sometimes called ‘selective law enforcement’ and are generally accepted by the courts provided that they operate within certain legal limits. The agency may not have a policy (Hinchcliffe v Commissioner of Police (2001) 118 FCR 308 at 318–20, [29]–[35]) or a practice to refuse to enforce a particular law at all (R v Commissioner of Police, Tasmania; Ex parte North Broken Hill Ltd (1992) 1 Tas R 99 at 114) for that would be dispensing with the law, provided that the agency makes a genuine attempt to enforce the law: R v Commissioner of Police; Ex parte Blackburn (No 3) [1973] 1 QB 241 (CA). The failure to enforce on all occasions may be allowed because the agency lacks resources (R v Commissioner of Police; Ex parte Blackburn (No

3) [1973] 1 QB 241 (CA)), for example. On the other hand, where no policy of non-enforcement is shown to exist (King-Brooks v Roberts (1991) 5 WAR 500 at 515 (FC)) or where the agency has reasonable internal restrictions of who is allowed to enforce particular laws (R v McAuley; Ex parte Fardell (1979) 2 NTR 22), the courts will allow such practices to stand. Apart from separation of powers arguments about the inappropriateness of the courts ordering a prosecution that they might then have to judge, the main policy reason for allowing selective law enforcement is that, in practice, choices have to be made as to the priorities to be assigned to particular crimes and particular areas to be policed, and that these matters are best left to the agency concerned. In individual cases the evidence required to prosecute may be slight and prospects for success slender or, even as in the Stead case mentioned above at 3.8, immunity may have to be granted to encourage the enforcement of the law; that is, without immunity, or even amnesty, illegal conduct may not be brought to light and a situation remedied. 3.13

From the 12th to the 17th centuries, the King and his advisers sought to claim exemptions from the law and this found expression in the idea that ‘The King can do no wrong’. This meant that the monarch could not be charged with offences or face civil legal proceedings in his or her own courts: State of Western Australia v Bond Corporation Holdings Ltd (1991) 5 WAR 40 at 63 (FC). This is still true as a matter of law but its effect is now dramatically different from earlier periods. The reason for the shift is that once monarchs actually ruled and the King or Queen was the actual head of the executive. Thus, to exempt the monarch from being accountable in the courts meant a great deal, especially since their councillors also made a similar claim. Once a distinction was made between the monarch who [page 63]

could personally do no wrong and the executive of politicians who advised the monarch and who could certainly be made accountable to the law, the impact of the doctrine diminished considerably. 3.14

Thus, while once ministers and others sought immunity from the legal process on the grounds that they were acting on behalf of the Crown, the ability of elected officials to evade the normal incidence of the law is now much diminished. Members of parliament are not immune from the criminal process. The public law implication of convictions of sitting members of parliament is that a conviction for an offence with a potential penalty of 1 year’s imprisonment is a ground of disqualification under the Constitution, while in some state Constitution Acts such as New South Wales and Victoria the period is 5 years and in South Australia’s case, conviction of an indictable offence is sufficient. Section 44(ii) of the Commonwealth Constitution, for example, disqualifies persons who are attainted (convicted) of treason, or who are convicted and are under a sentence for an offence punishable under the law of the Commonwealth or of a state by imprisonment for 1 year or longer. The disqualification in such a case means that such a person shall be incapable of being chosen or of sitting as a member of either House of the Commonwealth Parliament.

Modern Australian Judicial Discussion 3.15

In its narrow sense, the rule of law refers to the general idea that all persons in Australia, be they citizens (Australian Citizenship Act 2007 (Cth) Sch 1), visitors (Walker v State of New South Wales (1994) 182 CLR 45; 126 ALR 321 at CLR 50 (HCA)), residents or officials (P & C Cantarella Pty Ltd v Egg Marketing Board (NSW) [1973] 2 NSWLR

366 at 383 (SC) per Mahoney J: ‘The duty of the executive branch of Government is to ascertain the law and obey it’), are under a duty to obey the law of the land. Whether any given legal provision or rule is actually binding upon a particular person or class is a separate question. Diplomats, for example, are immune from most Australian laws, but this is an exception. Obviously, many laws are designed to cover specific occupational and economic groups and will not concern most persons in the wider society. But the power of the idea that everyone is bound by the law, especially officials, is of the essence of constitutional rule. In the modern context the sovereign herself is normally obliged to obey that law and in her coronation oath and by the common law is bound to observe and obey the law: State of Western Australia v Bond Corporation Holdings Ltd (1991) 5 WAR 40 at 63 (FC) per Malcolm CJ. 3.16

A recent example of the principle arose in May 2015 when the American actor Johnny Depp and his wife Amber Heard brought their dogs Boo and Pistol illegally into Australia. The dogs were brought in on a private plane and in breach of the Quarantine Act 1908 (Cth). The presence of the dogs was only discovered after they were taken to a Gold Coast dog grooming business, which posted photos of the dogs on social media. The Agriculture Minister announced that the dogs had to be [page 64] removed or they would be euthanised. In his statement, the minister explained that the law applied to even the ‘sexiest man alive’ and ‘Jack Sparrow’: . The dogs were then removed by private jet to California and the whole issue attracted enormous publicity. The comedian John Oliver

produced a funny attack on Australia over the incident, which may be seen on Youtube: . As the dogs were actually brought into Australia by Depp’s wife, she was charged with bringing the dogs illegally into Australia. The full details of the incident were outlined in a statement from the Agriculture Department, setting out the relevant legal requirements for bringing animals into Australia: . 3.17

The idea that the rule of law forms an assumption underlying the legal order has been articulated by the judges in the highest courts in this country. In an important case, Australian Communist Party v Commonwealth (1951) 83 CLR 1; [1951] ALR 129 (HCA), Dixon J said (at CLR 193), referring to the incidental power under the Commonwealth Constitution: Moreover, it is a government under the Constitution and that is an instrument framed in accordance with many traditional conceptions, to some of which it gives effect, as, for example, in separating the judicial power from other functions of government, others of which are simply assumed. Among these I think that it may fairly be said that the rule of law forms an assumption.

Section 5 of the Constitution of the Commonwealth of Australia Act 1900 (Cth) arguably embodies this assumption in clear terms. That provision states: This Act, and all laws made by the parliament of the Commonwealth under the Constitution, shall be binding on the courts, judges, the people of every State and of every part of the Commonwealth, not withstanding anything in the laws of any State: and the laws of the Commonwealth shall be in force on all British ships, the Queen’s ships of war excepted, whose first port of clearance and whose port of destination are in the Commonwealth.

Certainly, the judges of Australia subscribe to the view that the legal order is one governed by the rule of law, as they have said several

times during the last 50 years at least: Sir Gerard Brennan CJ (1995) 183 CLR x and (1998) 193 CLR ix. 3.18

For most of our constitutional history the issue was whether the Crown or the executive, including ministers, were bound to obey the law. This idea grew out of the long struggle to establish the principle that the monarch and his or her servants were obliged to obey the law. The modern position has been stated many times, most recently by Gaudron J in an appeal from South Australia. In that case, there was a question as to the jurisdiction of a Development Assessment Commission. In the course of her judgment Gaudron J set down in clear terms the relevant [page 65] principle when she wrote in Corporation of the City of Enfield v Development Assessment Commission (2000) 199 CLR 135; 169 ALR 400 at CLR 157, [55]–[56] (HCA): The other factor that informs comprehensive statutory schemes for the review of executive and administrative decisions is what is sometimes referred to as ‘accountability’. In this context, ‘accountability’ can be taken to refer to the need for the executive government and administrative bodies to comply with the law and, in particular, to observe relevant limitations on the exercise of their powers. Those exercising executive and administrative powers are as much subject to the law as those who are or may be affected by the exercise of those powers. It follows that within the limits of their jurisdiction and consistent with their obligation to act judicially, the courts should provide whatever remedies are available and appropriate to ensure that those possessed of executive and administrative powers exercise them only in accordance with the laws which govern their exercise. The rule of law requires no less.

The rule of law in Australia does not operate in a vacuum. It operates, as Gleeson CJ recently put it, ‘in a free society’ (Al-Kateb v Godwin (2004) 219 CLR 562; 208 ALR 124 at CLR 577, [20]), and, of

course, against a background of assumptions, one of which is that the rule of law cannot be used to destroy the legal order, as the Supreme Court of Canada pointed out in a dramatic case from Manitoba where it was discovered that none of the laws of that province had been validly enacted for nearly 90 years, since none were enacted in French as the law required: Re Language Rights Under Manitoba Act 1870 (1985) 19 DLR (4th) 1 at 22–3 (SCC). 3.19

It follows from this principle that much of our public law is directed to considering cases in which the central issue is whether a public official has acted within or without their legal powers and authority. To take a striking instance of this phenomenon, on 30 November 1983 a group of six trainees and their four supervisors working for the Australian Secret Intelligence Service (ASIS) (plus one army officer) took part in a botched training exercise at the Sheraton Hotel in Melbourne: A v Hayden (No 2) (1984) 156 CLR 532; 56 ALR 82 (HCA). The case provoked the legal question whether the participants were obliged to give their names to the Victorian police who arrested them and who investigated various incidents associated with the exercise. The central issue in the case concerned whether their contractual obligation to maintain confidentiality could override other considerations such as the public interest in the proper investigation of crime. On this point the court held that it would not uphold injunctions sought by the plaintiffs to restrain the Commonwealth from disclosing their names to the Victorian police. In the event, special legislation was passed by both the Victorian and Commonwealth Parliaments to permit the courts to make orders for confidentiality in relation to criminal proceedings arising out of the events at the Sheraton Hotel: Criminal Proceedings Act 1984 (Vic) s 3. The Commonwealth

[page 66] Act was passed to give legal effect to these orders throughout Australia: Judiciary Amendment Act 1984 (Cth) s 3, inserting Pt VII s 47 into the principal Act. The case itself was a sensation and the High Court was well aware of this. Mason J commenced his judgment with the memorable words: ‘There is an air of unreality about this stated case. It has the appearance of a law school moot based on an episode taken from the adventures of Maxwell Smart’: A v Hayden (No 2) (1984) 156 CLR 532; 56 ALR 82 at CLR 550. The exercise was later investigated by Justice Hope as part of a Royal Commission into the security services and it is primarily from that account that the facts are taken: Report on the Sheraton Hotel Incident, February 1984, CPP No 1 of 1984. The exercise involved a group of trainees asked to track and then rescue a hostage being held in room 004-P4 in the hotel. There were two agents of a fictional foreign power in the room with the hostage. After taking up residence for several days in an adjoining room with the easily-remembered room number 007, the team was ordered to rescue the hostage. They assembled a formidable array of equipment to effect the rescue, including a sledgehammer, pistols and submachine guns. It should be said that this entire exercise went ahead without the prior knowledge of either the Victorian Government or police or the management of the hotel. Wearing party masks, the team went to the suite where the hostage was being held and after a failed attempt to get into the room by passing off one of their number as a waiter, they smashed their way into the suite with nine blows of the sledgehammer. The hostage, who was naked in the bath at the time, pretended to be drunk and was semi-dressed by the trainees before being taken to the basement via the lift. As luck would have it, as one of the team entered the lift he encountered the night manager

whereupon there was a struggle as the lift descended. The manager assumed that the group was involved in an armed robbery and asked for police assistance. The rest of the team went down in another lift but instead of getting out as planned at the first floor, the lift went to the ground floor where several members of the hotel staff had assembled to prevent their escape. At this point firearms were allegedly brandished. The team thought none of this at all odd because they assumed that the hotel staff were play-acting by arrangement with ASIS. The hotel manager was armed with a nightstick but was confronted by a team member with a submachine gun. Holding the staff at bay, the team retreated through the kitchen and escaped by a getaway car only to be stopped by the Victorian police. At police headquarters they refused to give their names. 3.20 In the course of the case in the High Court a number of important issues were dealt with. First, the court affirmed that no one in Australia, including a member of a security organisation, is empowered to break the law, nor is there a defence that the offender was following superior orders. The military and the security forces are obliged to obey the law like anyone else: Pirrie v McFarlane (1925) 36 CLR 170; 31 ALR 365 at CLR 227 (HCA). As it happened, the damage was minor and no one sustained personal injuries but the Victorian police had it in mind to bring a formidable list of charges against the accused, including weapons charges, burglary, [page 67] wilful damage and common assault: A v Hayden (No 2) (1984) 156 CLR 532; 56 ALR 82 at CLR 582 (HCA). Second, several members of the court took the opportunity to affirm the principle that ‘[t]he Governor-General, the Federal

Executive Council and every officer of the Commonwealth are bound to observe the laws of the land’. Murphy J said (at CLR 562) that he was moved to restate these elementary principles because: … astonishingly one of the plaintiffs asserted through counsel that it followed from the nature of the Executive Government that it is not beyond the executive power, even in a situation other than war, to order one of its citizens to kill another. Such a proposition is inconsistent with the rule of law. It is subversive of the Constitution and the laws. It is, in other countries, the justification for death squads.

Brennan J also stressed in his judgment that the Crown could not dispense with the laws as such a power no longer exists, having been abolished by the Bill of Rights 1688. As Brennan J pointed out (at CLR 588): ‘No agency of the executive government is beyond the rule of law. ASIS must obey the law …’. The case, nevertheless, provoked legislative intervention by both the Victorian and Commonwealth Parliaments. The Criminal Proceedings Act 1984 (Vic) was passed to allow a court to sit in camera in national security cases such as this incident, a provision intended to last for 2 years. For its part, the Commonwealth Parliament passed the Judiciary Amendment Act 1984 (Cth) to allow for the punishment of any person inside or outside Australia who acts in contravention of an order of a court, to maintain the secrecy of in camera proceedings in the Sheraton Hotel incident. 3.21

If the executive and administrative officers are obliged to obey the law so too are citizens and others in Australia. The courts have, in the absence of an express statutory exception, set themselves against the notion that a person or group within Australia can claim to be exempted from a particular law or even a whole body of law. This issue came before Mason CJ in the High Court in 1984 in Walker v State of New South Wales (1994) 182 CLR 45; 126 ALR 321. Mr Walker, an Aboriginal, was charged with six offences under the Crimes Act 1900 (NSW). These offences included the malicious

discharge of firearms with intent to do grievous bodily harm, resisting arrest, assault with intent to commit a felony, and assault on an officer in the execution of his duty. He argued that there existed in Australia, on the analogy of the notion of native title to land set out in Mabo v Queensland (No 2) (1992) 175 CLR 1; 107 ALR 1 a body of Aboriginal criminal law that predated white settlement and that had not been extinguished by subsequent legislation. It followed from this that Mr Walker was not bound by the Crimes Act 1900 and, therefore, could not be charged with offences under that Act. The State of New South Wales sought to strike out this argument and Mason CJ agreed with the state’s arguments. The judge held (at CLR 49) that the New South Wales legislature had powers to pass criminal statutes for the state and that these laws applied to all persons within the state. Mason CJ rejected the contention that there [page 68] existed a body of Aboriginal criminal law, for even if it had once existed it had been displaced by the Crimes Act 1900 (NSW). As he put it (at CLR 49–50): The general rule is that an enactment applies to all persons and matters within the territory to which it extends, but not to any other persons or matters. The rule extends not only to all persons ordinarily resident within the country, but also to foreigners temporarily visiting. And just as all persons in the country enjoy the benefits of domestic laws from which they are not expressly excluded, so also must they accept the burdens those laws impose. The presumption applies with added force in the case of the criminal law, which is inherently universal in its operation, and whose aims would otherwise be frustrated.

As this case and others show, the matter may be different if there is an express statutory exemption of a person or group from the law. In that case, the law itself has authorised an exemption. In a number of National Parks Acts, for instance, certain Aboriginal persons were, in

specific cases, exempted from some of the restrictions on the hunting of native or protected species: National Parks and Wildlife Act 1974 (NSW) s 71D; Nature Conservation Act 1992 (Qld) s 93; National Parks and Wildlife Act 1972 (SA) ss 68C–68E; National Parks and Wildlife Act 1970 (Tas) s 49A. 3.22 Subsequent judicial discussion of the concept of the rule of law in Australia and elsewhere shows that there is an appreciation of the need for institutional arrangements to ensure that persons comply with the law and to support the constitutional order as a whole. These arrangements include the existence of an independent judiciary and an independent legal profession that will undertake cases on behalf of minorities and ‘unpopular’ clients as was the case in the Tampa decision, Ruddock v Vadarlis (2001) 110 FCR 491; 183 ALR 1 (Fed Ct, FC). In that case, a Norwegian container ship, The Tampa, rescued 433 boat people from a ship that was sinking close to Christmas Island. The ship was barred from entry into Australian waters but did enter and was occupied by units of the SAS sent by the Commonwealth Government. The incident in September 2001 led to a case in the Federal Court, where the boat people won, at first instance, before Justice North. On appeal to the Full Federal Court, the Commonwealth persuaded the court to overturn the decision below. Although the court by a majority held that the action of the Commonwealth in occupying the ship was lawful under s 61 of the Constitution, which deals with the executive power of the Commonwealth, the court as a whole ended its judgment with the following statement (at FCR 548–9, [216]): The counsel and solicitors acting in the interests of the rescuees in this case have evidently done so pro bono. They have acted according to the highest ideals of the law. They have sought to give voice to those who are perforce voiceless and, on their behalf, to hold the executive accountable for the lawfulness of its actions. In so doing, even if ultimately unsuccessful in the litigation they have served the rule of law and so the whole community.

[page 69] Underpinning the ‘assumption’ of the rule of the law is a broader conception of the law as both a system of rules and institutional arrangements. In the memorable words of Alfred Deakin, then Attorney-General of the Commonwealth in 1902: ‘The reign of law, though invisible, really surrounds us at every stage in our lives, from the cradle to the grave. Without it no such development, no such progress as we have witnessed in social life would have been possible.’: CPD, House of Representatives, 18 March 1902, 10988.

Diceyean Theory 3.23 Alfred Venn Dicey (1835–1922) plays a special role in the history of the concept of the rule of law. He articulated the idea in a particularly clear and, so it proved, influential form in his book An Introduction to the Study of the Law of The Constitution, 10th ed, E C S Wade (ed), MacMillan, London, 1959, first published in 1885. Dicey was the Vinerian Professor of Law at Oxford University and his book was the embodiment of a series of lectures on public law at that university. His book considers three major components of the English Constitution: the sovereignty of parliament; the conventions of the Constitution; and the rule of law. Dicey first used the term himself in a book review in 1875 (Nation, No 505, 4 March 1875, p 153) where he says of the essential peculiarity of English political development: The one marked characteristic will in such examination be found to be that through a fortunate combination of circumstances, the rule of law was established in England at

a time when it was unknown in every other great country of Europe. This supremacy of law has been the feature which struck all acute observers of English political life.

Part II of his book devotes 10 chapters to the concept: three on the civil rights to personal freedom, freedom of discussion and the right of public meeting, a chapter on martial law, another on the army and a chapter on public revenue. The section then ends with chapters on the responsibility of ministers, and comparison with French droit administratif (administrative law), and the relationship between the rule of law and parliamentary sovereignty. Chapter 4 of the book deals with the general nature of the rule of law. In this chapter, Dicey starts by noticing that a number of French and German observers had commented favourably on the legality of English habits and feeling. Dicey then proceeds to articulate the concept of the rule of law as he understands it (pp 187–8): When we say that the supremacy or the rule of law is a characteristic of the English constitution, we generally include under one expression at least three distinct though kindred conceptions.

[page 70] We mean, in the first place, that no man is punishable or can be lawfully made to suffer in body or goods except for a distinct breach of law established in the ordinary legal manner before the ordinary courts of the land. In this sense the rule of law is contrasted with every system of government based on the exercise by persons in authority of wide, arbitrary, or discretionary powers of constraint.

To this first meaning Dicey adds two more senses of the term (pp 193, 195–6): We mean in the second place, when we speak of the ‘rule of law’ as a characteristic of our country, not only that with us no man is above the law, but (what is a different thing) that here every man, whatever by his rank or condition, is subject to the ordinary law of the realm and amenable to the jurisdiction of the ordinary tribunals. …

There remains yet a third and a different sense in which the ‘Rule of Law’, or the predominance of the legal spirit may be described as a special attribute of English institutions. We may say that the constitution is pervaded by the rule of law on the ground that the general principles of the constitution (as, for example, the right to personal liberty, or the right of public meeting) are with us the result of judicial decisions determining the rights of private persons in particular cases brought before the courts; whereas under many foreign constitutions the security (such as it is) given to the rights of individuals results, or appears to result, from general principles of the constitution.

3.24 In order to understand and criticise this view of the rule of law it is necessary to understand some features of Dicey’s general constitutional thought and the terminology in use during his era. As to the first sense of the rule of law, Dicey had in mind that the criminal and civil law of England was administered in the ordinary courts of the land in contrast to the French and Belgian legal systems, where he claimed that separate administrative tribunals dealt with these matters. One of the abiding criticisms of Dicey is that he ignored the existence in England during his time of a large number of administrative tribunals, committees and commissions that often dealt with matters of property, for example. It is true, of course, that these inferior jurisdictions were subject, in his time as in ours, to judicial review by the superior courts, and if Dicey had this in mind he was quite correct. But in practice, most of these tribunals’ decisions were not actually brought up to the ordinary courts for review. The second criticism of Dicey was that it is said that he misunderstood the French administrative law system despite knowing a lot about it. A third criticism of the first conception of the rule of law is that Dicey uses a contrast between lawful government on the one hand and arbitrary or discretionary government on the other. This was an accepted usage, though the danger is that the term ‘discretionary’ does not necessarily mean a power outside or apart from the law (the sense in which Dicey uses it). In modern terminology, and in the usage

[page 71] of his time, discretionary power was accepted as a legitimate component within the legal order and was constrained by the law: Sharp v Wakefield [1891] AC 173 at 179 (HL(E)). One of Dicey’s great predecessors, Dr W E Hearn of the Faculty of Law at the University of Melbourne, from whom Dicey said he learned a great deal, made this point clear in the chapter of his book on the government of England which describes the ‘Discretionary Powers of the Crown’: The Government of England: Its Structure and Development, 2nd ed, George Robertson & Co, Melbourne, 1886, p 603. These powers, both the prerogative and the constitutional powers of a responsible government, were subject to legal and conventional constraints; for example, they were to be exercised on the advice of the government of the day. The notion then that English law had no place for discretionary powers was nonsense when Dicey wrote his book, though in his defence it might be argued that he was merely using the term ‘discretionary’ in another sense. 3.25 The third sense of the term ‘rule of law’ as used by Dicey is misleading to say the least. It is true that the common law, for this is what Dicey had in mind, had built up a body of legal principle in relation to civil liberties, but Dicey overlooked two major points, or perhaps he simply underestimated them. First, that a number of rights were also secured by statute and not merely by the decisions of the courts. The best examples here were the Habeas Corpus Acts of 1640, 1679 and 1816, and the Bill of Rights 1688. To attribute the whole body of English liberties as Dicey seems to do to the decisions of the courts was untrue when he wrote and it is certainly untrue today. The second critical comment that may be made is that we live, as did Dicey, in an age of statutes and, as he himself points out, the principle of the supremacy of parliament means that Acts of Parliament may override or abridge

the common law and, of course, common law rights. In modern law in Australia and in England there are major statutory limitations on a person’s rights since rights are not absolute but are regulated according to law. This, of course, suggests a contradiction, noticed by many commentators, between Dicey’s first principle of the sovereignty of parliament, which is free to make any Act it likes, and the rule of law, which in the English case does not restrain such an all powerful parliament from making any law it likes. In Australia, of course, the position is different as the legislatures are ultimately restricted in their legislative powers in that they may not pass laws that conflict with the Commonwealth Constitution, though it should be said that this nevertheless still leaves them with a wide margin for legislative activity. 3.26 Dicey’s views proved to be very influential and were widely studied and cited in England and the colonies. The intellectual grip they have exerted on legal minds since his time has recently come in for severe criticism: Durham Holdings Pty Ltd v New South Wales (2001) 205 CLR 399; 177 ALR 436 at CLR 418–20, [41]–[44] (HCA) per Kirby J. A balanced view would say that parts of the ideas Dicey advanced were, as a matter of principle, true. The law does bind everyone in principle; a core idea that even his modern critics accept, though in practice evasions and breaches do occur. It should also be noted that Dicey was speaking [page 72] of the 19th century circumstances of the English Constitution, a system without a rigid written constitution. As one High Court judge has recently pointed out, Dicey’s views must be approached with caution in an Australian context because of the institutional and

constitutional differences between the British and Australian situations: Kruger v The Commonwealth (1997) 190 CLR 1; 146 ALR 126 at CLR 153–5 (HCA) per Gummow J. 3.27 On the question of the origins of Dicey’s ideas on the rule of law, a claim was made in 1957 that Dicey ‘was merely elaborating and expounding in his arresting and authoritative manner, the ideas of an Australian (by adoption), W E Hearn, the first Dean of the Faculty of Law at The University of Melbourne’: H W Arndt, ‘The Origins of Dicey’s Concept of the Rule of Law’ (1957) 31 Australian Law Journal 117. This view has been accepted by later writers about Dicey, but whether it should be accepted is a critical question. As Arndt says rather weakly at the end of his paper: ‘Curiously enough, he does not refer to Hearn in his chapter on the rule of law.’ The fact is that the evidence for Hearn’s influence on Dicey’s concept of the rule of law is so thin as to be, at this point, non-existent. Dicey cites Hearn in 13 places in his book but not once in the early chapters on the rule of law, where Dicey sets out his three meanings of the term. Moreover, when Dicey refers to Hearn he calls him a ‘political theorist’. He is certainly complimentary towards Hearn but says of the two theorists: ‘The truth is that both Bagehot and Professor Hearn deal with and mean to deal mainly with political understandings or conventions and not with rules of law’: Dicey, op cit, p 20.

Jurisprudential Discussions 3.28 Subsequent discussion of the concept of the rule of law by students of jurisprudence distinguished between theories of the rule of law that were purely formal (thin) and those that contained a substantive element (thick). Formal theory stresses certain abstract characteristics of the law said to be necessary in order to establish that the rule of law exists, though it might be said here that the emphasis in these

discussions is actually on the nature of laws per se rather than on their operation. There are two approaches to the subject. Thin theory has identified eight formal characteristics necessary to establish the rule of law. This was summarised in the following passage by John Finnis, Natural Law and Natural Rights, Clarendon Press, Oxford, 1980, pp 270–1: The Rule of Law, the specific virtue of legal systems, has been well analysed by recent writers: so my discussion can be brief. A legal system exemplifies the Rule of Law to the extent (it is a matter of degree in respect of each item of the list) that (i) its rules are prospective, not retroactive, and (ii) are not in any other way impossible to comply with, that (iii) its rules are promulgated, (iv) clear and (v) coherent with one another, that (vi) its rules are sufficiently stable to allow people to be guided by their knowledge of the contents of the rules, that (vii) the making of decrees

[page 73] and orders applicable to relatively limited situations is guided by the rules that are promulgated, clear, stable and relatively general; and that (viii) those people who have authority to make, administer, and apply the rules in an official capacity (a) are accountable for their compliance with rules applicable to their performance and (b) do actually administer the law consistently and in accordance with its tenor.

It will be noticed at once that these criteria are not always complied with, even in established legal systems such as Australia’s, yet it is possible to argue that the rule of law nevertheless applies here. Take the first criterion. Statutes are sometimes retrospective and this is not necessarily wrong or unjust. Statutes are sometimes passed to deal with invalidity and uncertainty in the law. Such statutes are retrospective in operation but not necessarily objectionable. On other occasions a retrospective statute might undo a past injustice by passing a posthumous pardon (Pardon for Soldiers of the Great War Act 2000 (NZ)) or announcing regret for past official conduct. The main objection is to retrospective criminal legislation that makes something in the past a crime where once it was not. In such a case, a

person is trapped by their history for they cannot change the past, but even these sorts of enactments are valid in Australia. Thus, while there is a presumption in statutory interpretation that an enactment operates prospectively, if the legislation is clear on the point the courts will give an Act retrospective effect: Momcilovic v R (2011) 245 CLR 1; 280 ALR 221 at CLR 152, [382] (HCA) per Heydon J. Similarly, the Commonwealth Parliament may legislate retrospectively and there can be no objection to this on the grounds that it is unconstitutional: R v Kidman (1915) 20 CLR 425; 21 ALR 405 at CLR 442–3 (HCA) per Isaacs J. Of course, if all laws were retrospective, and they are not, and if all the other components or many of them on the list were violated on a regular basis, it would be right to say of such a legal system that the rule of law did not operate at all. But in the Australian case, while occasional exceptions sometimes occur, it can hardly be maintained on a comparative basis that these instances show that the rule of law is a mere myth. As a distinguished Marxist historian once commented, there is a real difference between a legal order where the rule of law operates, even in an imperfect form, and one in which there are no rules at all and where the population is subject to a reign of terror with pogroms and massacres of large numbers of people: E F Thompson, Whigs and Hunters, Penguin Books, Harmondsworth, 1975, pp 258– 69. The advantage of the thin theory is that it is easier to secure a societal consensus on its value for it leaves out the content of the law, which is most often in dispute. In other words, people of different political persuasions can agree on formal characteristics of the law even if they do not agree about the content of the law. 3.29 The second approach is called thick theory, and arose after 1945. There was strong concern that dictatorships had in fact passed laws of a tyrannical nature. Such laws possessed most if not all of the formal characteristics set out by Finnis above. This posed a serious moral

problem. If the rule of law was superior to alternatives, how [page 74] should legal systems and political orders react to an entire legal order that was based on a violation of the rights of a section, perhaps a majority of the population, using these laws to carry out atrocities on a mass scale? Thus, the Nazi regime had many laws, as do contemporary authoritarian states. These laws fit a thin model but raise a serious moral question. Subsequent theory has sought to argue that the rule of law must be given a minimum substantive content (P Craig, ‘Formal and Substantive Conceptions of the Rule of Law: An Analytical Framework’ [1997] Public Law 467–87) in order to distinguish manifestly unjust regimes with laws from modern democratic regimes, for example. This area of the debate continues and it should be noted that the most recent accounts of the rule of law have argued in favour of a minimum content based, in many cases, on acceptance of the principles laid down in human rights conventions. In many cases these principles are embodied in national legislation. 3.30 The controversy over substantive theory is about what substance should be included in the laws, especially human rights laws. Much of this is covered in Chapter 12. The points of controversy are: whether rights should include economic and social rights or group rights; whether such rights are entrenched beyond the reach of legislative majorities; and that such laws widen considerably the field in which judges operate, and given the broad, even vague, nature of the rights, confer too much power on the judiciary. This might lead to the

judicialisation of political questions. 3.31

Judges have made some movement in this direction but in Australia a law will not be invalidated by the courts merely because it is in conflict with international human rights standards, unless those standards are part of our public law. Despite these competing theories, the test for the legal validity of a law in Australia remains to be determined according to whether the common law or the statute in question is in conflict with the Commonwealth Constitution or is otherwise contrary to positive law. Nor will the courts apply a natural law or philosophical standard to determining whether an enactment is valid or not: Wake v Northern Territory of Australia (1996) 5 NTLR 170.

3.32 A larger issue that has only been touched on by the judges is whether there is a link between the rule of law and the democratic political system in Australia. There is an argument that the rule of law means the rule of just and democratic laws. Certainly there is judicial recognition that the rule of law and democracy are linked in Australia as a matter of historical practice. As one judge put it in New South Wales in 1964: ‘Every truly democratic system of government rests upon the rule of law, and no system is truly democratic if it does not’: Re Buchanan (1964) 65 SR (NSW) 9 at 10. While the first part of this statement is true as a statement of the present relationship between democracy and the rule of law in [page 75] Australia, the second part of the sentence is of dubious validity. Unfortunately, a society might operate under the rule of law but with laws that, in some cases, are simply unjust but nevertheless legally valid and which were enacted by a democratically-elected parliament.

The International Dimension 3.33 In the 21st century the United Nations (UN) has dealt with the concept of the rule of law both in relation to societies riven by deep and seemingly unresolvable conflicts and in the larger context of institution-building in societies under development. In some cases this means building an effective justice system. In a report by the UN Secretary-General in 2004 (UN, Report by the Secretary-General, The Rule of Law and Transitional Justice in Conflict and Post-Conflict Societies, 23 August 2004, [6], S/2004/616) Kofi Annan wrote that the rule of law: … is a concept at the very heart of the Organization’s mission. It refers to a principle of governance in which all persons, institutions, and entities, public and private, including the State itself, are accountable to laws that are publically promulgated, equally enforced and independently adjudicated, and which are consistent with international human rights norms and standards.

It will be noticed that the UN has in mind a substantive version of the rule of law with the references to international human rights norms. The UN’s interest in the subject commenced in 1992 and has accelerated since 2006 with the creation of the Rule of Law unit under the direction of the Deputy Secretary-General: UN, United Nations and the Rule of Law, . Much of the effort is directed to building justice systems in developing societies. One such example of immediate interest to Australia is the case of East Timor. Part of the effort is designed to reduce lawlessness through building effective police organisations and to bring to book egregious breaches of human rights by war criminals. Part of the project entails assisting in building a modern and effective court system, the training of judges and the legal profession, as well as helping to write modern laws and to create institutions of accountability: UN Security Council, Report by the Secretary-General, Uniting Our Strengths: Enhancing United Nations Support for the Rule

of Law, 14 December 2006, A/61/636-S/2006/980. The other focus of the rule of law effort is the realisation that the rule of law underpins economic and social development. In other words, an effective court system and laws on contracts and commercial matters are essential in a developing market economy: UN, General Assembly, The Rule of Law at the National and International Levels, 18 December 2006, A/RES/61/39. [page 76]

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