Law and Government in Australia.

• Jurisdiction: Australia
• Author: Willheim, Ernst
• Date: 01 April 2006

Law and Government in Australia edited by Matthew Groves (Sydney: The Federation Press, 2005) pages i-xxv, 1-326. Price A$99.00 (hardcover). ISBN 1 86287 588 X.

CONTENTS I Introduction II Constitutional Issues A Can a State Parliament Bind its Successors? B When Can State Laws Bind the Commonwealth? C The Implied Freedom of Political Communication: Recent Developments III Public Sector Review and Executive Accountability A Commonwealth and State Ombudsmen B Executive Power and Accountability C The 'Children Overboard Affair'--Gaps in Accountability Exposed D Justiciability of Cabinet Decisions E Review of Polycentric Decisions IV Judicial Review Developments A Three Recent High Court Decisions--Some Unfortunate Regressions? B Estoppel in Public Law C Is Legitimate Expectation Dead? D A Significant Development--The New 'Constitutional Writs' Nomenclature E Nullity as a Constitutional Law Concept V The Evolving Role of the Governor-General VI International Perspectives A International Recognition and Enforcement of Judgments B Vexatious Litigants VII Concluding Observations I INTRODUCTION

This book of essays honours one of Australia's foremost public law scholars, Professor Enid Campbell. I use the term 'public law' advisedly, for Professor Campbell's teaching, (1) publications and research spanned so many areas of public law. Her work was not merely confined to the traditional fields of constitutional and administrative law but covered the courts, the judiciary, public administration, groundbreaking work on parliamentary privilege, and that cutting edge publication (with Harry Whitmore), Freedom in Australia. (2) She was a member of two major Commissions: the Royal Commission on Australian Government Administration (3) and the Constitutional Commission. (4) Among her many notable personal achievements, she was the first woman in Australia to be appointed to a full chair in law and the first female Law Dean. For this collection, (5) the editor has assembled a distinguished group of lawyers. Some readers may, however, be disappointed at the absence of contributions from the Parliament, the courts and public administration--areas where Professor Campbell herself made significant contributions. Unlike the era when Professor Campbell came to the law, there are now many eminent female academic and practising lawyers with expertise in public law. It is therefore disappointing that, apart from Professor Campbell herself, of twelve other contributors only one is a woman.

Inevitably in a collection of this kind there is no single theme, yet many of the contributions can conveniently be considered together. Some deal with constitutional issues such as the power of a state Parliament to bind its successors, the application of state laws to the Commonwealth and the implied freedom of political communication. Others deal with various aspects of public sector review, including the jurisdiction of the Commonwealth and state Ombudsmen, ministerial responsibility and review of ministerial decisions, as well as related legal principles such as legitimate expectation, estoppel in public law, nullity and polycentricity in administrative decision-making. Other contributions deal with the recognition and enforcement of judgments and vexatious litigants.

II CONSTITUTIONAL ISSUES

A Can a State Parliament Bind its Successors?

In what circumstances can a Parliament of a state bind its successors? Can a state Parliament entrench provisions relating to, for example, the judiciary, or high-level public officials such as the Auditor-General, or a Bill of Rights? Can such legislation be protected against hasty or inadvertent amendment by prescription of special procedures or forms? Alternatively, does any attempt to provide such protection constitute an impermissible fetter on the sovereignty of future Parliaments? Is some superior authority necessary to support an entrenchment provision? If so, must that be a written law or can it be found in constitutional principle? These are some of the questions raised in Attorney-General (WA) v Marquet (6) and Jeffrey Goldsworthy's essay. (7)

Dicta in Marquet suggests that the High Court would take a narrow view of entrenchment provisions: the majority appears to see s 6 of the Australia Act 1986 (Cth) ('Australia Act') as the sole source for enforcement of manner and form requirements. On that view, only laws 'respecting the constitution, powers or procedures of the Parliament' can be entrenched by manner and form provisions. (8) It would seem to follow that entrenchment provisions in state constitutions that purport to protect, for example, Supreme Courts, the Auditor-General and provisions relating to financial legislation, may themselves validly be repealed by ordinary legislation.

Goldsworthy argues that it is in the public interest for constitutional provisions other than those dealing with the Parliament itself (9) to be legally protected. (10) He contends that, contrary to what was said in Marquet, entrenchment provisions are not only valid but also enforceable independently of Australia Act s 6. In his view, as part of the plenary power conferred by Australia Act s 2, a state Parliament has power to enact, and make judicially enforceable, requirements as to the procedure and form of future legislation. This power is independent of the 'manner and form' provisions of s 6 but is subject to a strict limit: such requirements must not destroy or in any way diminish Parliament's substantive power to legislate. Requirements that infringe that limit are invalid. (11)

That the powers of a state Parliament are plenary is no longer in dispute. The contrary view of Street CJ of the Supreme Court of New South Wales, that the words 'the peace, welfare and good government of New South Wales' (12) were words of limitation, (13) was decisively rejected by the High Court in Union Steamship Co of Australia Pty Ltd v King, (14) although the Court left open the intriguing question whether 'the exercise of that legislative power is subject to some restraints by reference to rights deeply rooted in our democratic system of government and the common law'. (15) Does it necessarily follow, from the plenary nature of the powers of the Parliament, that a Parliament can bind its successor? In what circumstances does the plenary power of the later Parliament enable it to undo the work of its predecessor? In particular, in what circumstances, if any, will the ordinary principle, that the later Act prevails, be displaced? Not everyone will be convinced that Goldsworthy has solved the conundrum.

Goldsworthy's analysis leads him to consider whether Australia Act s 6 is redundant. In his view, provisions such as standard quorum requirements and the common special provisions relating to financial bills are valid and judicially enforceable. On the other hand a referendum requirement diminishes Parliament's substantive power to legislate. It follows that such a provision is not supported by s 2 but can be binding by virtue of s 6. So a referendum requirement respecting the constitution, powers or procedures of Parliament is valid. A referendum requirement dealing with other subject matter is, in his view, invalid. (16) Similarly, super majority requirements (for example, a requirement of a two-thirds majority) diminish Parliament's substantive power and should not be held binding independently of s 6. (17)

The issue is an important one, not only in relation to the effectiveness of existing entrenchment provisions but also in relation to future legislation falling outside the scope of s 6, such as a Bill of Rights. Can a state Parliament entrench a Bill of Rights so that it cannot be overridden by future legislation? Goldsworthy would presumably answer that question in the negative, for that would amount to a substantive fetter. Would he support the validity of a law that established special procedural requirements for any future law inconsistent with a Bill of Rights? It seems he would support what he describes as 'innocuous' requirements such as a requirement of an absolute majority, a requirement for an express rather than implied repeal, or a requirement for the giving of reasons but not more onerous requirements such as a two-thirds majority or a referendum. (18)

The remedy Goldsworthy suggests is expansion of Australia Act s 6, by formal amendment in accordance with s 15. Perhaps the growing interest in Bills of Rights in light of recent anti-terrorism legislation (19) will provide the catalyst for further consideration of this issue. One aspect that would require further consideration than Goldsworthy has given it is whether any entrenching provision establishing a special procedure should itself need to be enacted in conformity with the special procedure. In this and other respects, Kirby J's forceful dissent in Marquet warrants close attention. (20)

B When Can State Laws Bind the Commonwealth?

Another area of enduring constitutional difficulty is that of the relationship between the constituent parts of the Australian Federation. To what extent can the laws of the Commonwealth bind the states? To what extent can the states bind the Commonwealth? A foreign observer must find it extraordinary that, a century after federation, the High Court has not yet developed a comprehensive theory, or principles, governing the application of state laws to the Commonwealth--that is, the circumstances in which the states can bind the Commonwealth and the circumstances in which the Commonwealth is free from state laws. There are no straightforward answers to these fundamental questions.

The initial approach of the High Court was that the Commonwealth and the states were each sovereign in their respective fields. Each was able to perform its functions without interference from the other, under the doctrine of the implied immunity of instrumentalities. It followed that state laws could not require Commonwealth public servants...