Australian Position and Constitutional Validity
Inconsistency with Constitution
There is a preliminary question concerning the proper approach to be adopted in determining the validity of a law said to be inconsistent with the requirements of the Constitution. I agree with the approach of the other members of this Court[188][1]. The first step is to construe the law itself.
Language of Constitution
This is so, whether the law in question is a federal, State or Territory law. It is so, whether the constitutional rule is one expressly stated or implied from the language and structure of the Constitution. Adopting this approach conforms to the longstanding instruction of this Court in cases of suggested constitutional invalidity[2]. It is an approach regularly taken where there is any possibility of doubt concerning the meaning and operation of the impugned law[3]. In R v Hughes[4] I explained why this approach is taken:
Approach to e followed
"In considering the validity or otherwise of the legislation ... said to be invalid, it is necessary, at the threshold, to elucidate the meaning and operation of the provisions in question. This is an elementary point. However it is important in the present case. If particular provisions claimed to be unconstitutional have no operation in the circumstances of the matter before the Court, it is irrelevant, and therefore unnecessary, to determine their validity. Constitutionality is not normally decided on a hypothesis inapplicable to the resolution of a particular dispute. If, upon a true construction of the legislation, it operates in a way that does no offence to the language and structure of the Constitution, it is irrelevant that, had it been construed in a different way, it might have done so. This Court will not answer constitutional questions on the basis of assumptions that have no practical or legal consequence for the case in hand."
“The accepted doctrine in this country is that where a statute is found to be constitutionally invalid, such invalidity operates from the moment that the statute in question purportedly came into force. It is thus invalid ab initio. In South Australia v The Commonwealth[5] Latham CJ expressed the rule in these terms:
"Common expressions, such as: 'The courts have declared a statute invalid,' sometimes lead to misunderstanding. A pretended law made in excess of power is not and never has been a law at all. Anybody in the country is entitled to disregard it. Naturally he will feel safer if he has a decision of a court in his favour - but such a decision is not an element which produces invalidity in any law. The law is not valid until a court pronounces against it - and thereafter invalid. If it is beyond power it is invalid ab initio."
There are many similar expressions both in the reasons of this Court[6] and of the Privy Council[7] dealing with the effect of invalidity under the Constitution. As long ago as 1886 the Supreme Court of the United States in Norton v Shelby County[8] said, in like terms, that unconstitutional legislation "confers no rights; it imposes no duties; it affords no protection; it creates no office; it is, in legal contemplation, as inoperative as though it had never been passed".
It is true that more recently the Supreme Courts of the United States[9] and Canada[10] have held back from accepting the full rigour of the nullification of judicial proceedings and orders following a holding that legislation, upon which they depended, was constitutionally invalid. However, such approaches were, it was submitted, fundamentally incompatible with established Australian constitutional doctrine. Thus, in Australia, it has never been accepted that a court exercising the judicial power may make orders having prospective effect only[11]. Nor has this Court ever embraced the suggestion that a statute found to be unconstitutional may nonetheless be accorded temporary validity until remedial arrangements can be put in place[12].
In the Court of Appeal of New South Wales, McHugh JA[13] (with whom I there agreed[14]) suggested that:
"[e]ven under the void ab initio doctrine ... a judgment of a court of record would seem to be binding upon private parties until set aside on appeal or judicial review even though the judgment was based on an unconstitutional statute". However, more recently, in this Court and in Re Wakim itself, McHugh J has expressed views apparently favourable to absolute nullification ab initio. Addressing the orders of this Court which followed its decision in Gould v Brown[15], his Honour said[16]:
"The orders made in Gould v Brown have no constitutional effect. For constitutional purposes, they are a nullity. No doctrine of res judicata or issue estoppel can prevail against the Constitution."
This latter opinion was grounded on the principle that common law doctrines such as res judicata or issue estoppel cannot be at odds with the written Constitution but must conform to it[17].
In support of reasoning of this kind, two considerations may be invoked. The first is concerned with the origins of the doctrine, relied on by the parties, that the orders of a superior court, made in excess of jurisdiction, are voidable and not void. That doctrine derives ultimately from the laws of England. According to some analysts[18], its foundation lay in the "general jurisdiction" enjoyed by the superior courts of that country which claimed the power to determine the limits of their own jurisdiction.
Federal courts, operating in Australia within the boundaries established by the Constitution, depend for their jurisdiction upon the existence of facts "which also mark the limits of the constitutional power to create the jurisdiction"[19]. In this sense, although such federal courts may be described as "superior courts of record" in the legislation constituting them[20], such legislation cannot render them, in law, courts of general jurisdiction. The only jurisdiction which such legislation can validly confer upon a federal court is that which derives from the Constitution. In this sense, a federal nation presents a problem different from that arising in the traditional superior courts of England.
Secondly, even if some circumstances might be imagined where a judgment of a federal court, founded ultimately upon a statute declared unconstitutional, may be binding (for example, as between the parties to it), such effectiveness could not be sustained where the statute in question was found to constitute a breach of a fundamental limitation on the exercise of federal legislative power or of a prohibition on such exercise established by the Constitution. Thus Sir Owen Dixon, in propounding a role for the de facto officers doctrine in the context of Australian constitutional law[21], did so on the footing that, like the doctrine of the voidable nature of the orders of superior courts, the de facto officers doctrine "operate[s] to curb the drastic logical implications of the traditional view that an unconstitutional statute is a complete nullity"[22]. Yet assuming this to be possible "there may be situations in which public inconvenience and the frustration of legitimate reliance" on an apparent but unconstitutional law "must give way to the retroactive invalidation of official acts in order to vindicate a constitutional boundary, or to guarantee a constitutional right"[23].
It is at this point that the fundamental basis of the ruling in Re Wakim must be remembered. No one disputed the convenience of the cross-vesting legislation. What moved the majority of this Court to declare that parts of it were unconstitutional was a belief that those parts involved an impermissible intrusion of State legislation and State judicial power into the federal Judicature established within Ch III of the Constitution[24]. It thus crossed a forbidden constitutional boundary. It interfered with the exercise of federal judicial power. To that extent it was prohibited by the Constitution. In part, this was because of the special importance assigned to the federal judiciary under the Constitution as an arbiter and umpire of constitutional disputes[25]. In such a context, the cross-vesting legislation, so far as it purported to confer State judicial power on federal courts, was enacted in breach of a fundamental limitation on the exercise of legislative power. That limitation governed both the Commonwealth and the States (and Territories). It therefore meant, so the argument was put, that "the orders which the Federal Court made in the exercise of powers invalidly conferred can never have had a valid operation. They cannot be rescued by the general doctrine that the orders of a superior court are at most voidable. The orders are void."[26]
Upon the basis of these arguments, if accepted, no purported "judgment" or "relevant order", or any other action of the Federal Court in pretended pursuance of the jurisdiction, purportedly conferred on that Court by the invalid parts of the cross-vesting legislation, had any constitutional efficacy whatsoever. No federal Act could validly confer such efficacy. No general doctrine of the common law imputed to a "superior court of record" or otherwise could do so in the face of the constitutional prohibition. There was thus no relevant jurisdiction of the Federal Court which the State Act impermissibly invaded. Nor was there any valid federal law with which the State Act was inconsistent in the constitutional sense. This being so, the contesting defendants' objection to s 11 of the State Act had no force. In enacting that Act, the State Parliament was entitled to disregard (save for any reference to the historical facts which it chose to make) the parties' mistaken venture into the Federal Court. There was no constitutional impediment to that Parliament's enacting a special limitation provision to cure any time difficulties that had arisen because of that unfortunate mistake.[27]’ Normally the onus of demonstrating constitutional invalidity rests on the party propounding invalidity. Nothing in the authorities suggests that that position is different where invalidity on freedom of political communication grounds is at issue. Hence the party propounding invalidity must show that the law is of so unsatisfactory a character that it must be excluded from the class of possible laws which are reasonably appropriate and adapted to serve a legitimate end.[28]
[1]Coleman v Power [2004] HCA 39; 220 CLR 1; 209 ALR 182; 78 ALJR 1166 (1 September 2004) Reasons of GlEESON CJ at [3]; reasons of McHUGH J at [49]-[68]; joint reasons at [158]; reasons of CALLINAN J at [272]-[287]; reasons of HEYDON J at [306]. Per KIRBY J
[3] The approach has been taken in several recent cases: Residual Assco Group Ltd v Spalvins [2000] HCA 33; (2000) 202 CLR 629 at 662 [81]; Behrooz v Secretary of the Department of Immigration and Multicultural and Indigenous Affairs [2004] HCA 36 at [106]106 [stated that: The first step in deciding questions of constitutional validity of federal legislation is to construe the statutory provisions [see: Bank of NSW v The Commonwealth [1948] HCA 7; (1948) 76 CLR 1 at 185-186 per Latham CJ; R v Hughes (2000) 202 CLR 535 at 565-566 [66]; Residual Assco Group Ltd v Spalvins [2000] HCA 33; (2000) 202 CLR 629 at 662 [81]].. This is a course common to constitutional courts everywhere. It sometimes provides a complete answer to a legal question, without the need to resort to constitutional invalidation [ As it does in the companion proceedings in Al-Kateb [2004] HCA 37 and Al Khafaji [2004] HCA 38. See also Zadvydas v Davis [2001] USSC 16; 533 US 678 at 689 (2001)]. In Australia, it is basic to the operation of a statute affording powers to the Executive Government of the Commonwealth that the law cannot "have the effect of making the conclusion of the legislature final and so the measure of the operation of its own power"[Australian Communist Party v The Commonwealth ("Communist Party Case") [1951] HCA 5; (1951) 83 CLR 1 at 193 per Dixon J, 206 per McTiernan J, 263 per Fullagar J. See also Re Wakim; Ex parte McNally [1999] HCA 27; (1999) 198 CLR 511 at 602 [193]]. The Parliament is not able to recite itself into power by declaring the existence of a constitutional fact comprising an actual and factual connection between the law and the subject matter upon which the law operates [Communist Party Case [1951] HCA 5; (1951) 83 CLR 1 at 193].. The existence, or absence, of such a fact can only be decided, in case of dispute, by the judiciary. In Australian Communist Party v The Commonwealth ("Communist Party Case"), Williams J made this point succinctly[[1951] HCA 5; (1951) 83 CLR 1 at 222.]: "[I]t is clear to my mind that it is the duty of the Court in every constitutional case to be satisfied of every fact the existence of which is necessary in law to provide a constitutional basis for the legislation".
[4] R v Hughes [2000] HCA 22; (2000) 202 CLR 535 at 565-566 [66] (footnotes omitted) [In considering the validity or otherwise of the legislation giving effect to cooperation between the units of the federation (federal, State and Territory) said to be invalid, it is necessary, at the threshold, to elucidate the meaning and operation of the provisions in question.( Lange v Australian Broadcasting Corporation [1997] HCA 25; (1997) 189 CLR 520 at 567; cf Re Wakim [1999] HCA 27; (1999) 73 ALJR 839 at 877-878; [1999] HCA 27; 163 ALR 270 at 323.) This is an elementary point. However it is important in the present case. If particular provisions claimed to be unconstitutional have no operation in the circumstances of the matter before the Court, it is irrelevant, and therefore unnecessary, to determine their validity. Constitutionality is not normally decided on a hypothesis inapplicable to the resolution of a particular dispute (the opening words of s 51 of the Constitution.) . If, upon a true construction of the legislation, it operates in a way that does no offence to the language and structure of the Constitution[Duncan [1983] HCA 29; (1983) 158 CLR 535 at 589., it is irrelevant that, had it been construed in a different way, it might have done so. This Court will not answer constitutional questions on the basis of assumptions that have no practical or legal consequence for the case in hand.]
[6] Antill Ranger & Co Pty Ltd v Commissioner for Motor Transport [1955] HCA 25; (1955) 93 CLR 83; Barton v Commissioner for Motor Transport [1957] HCA 50; (1957) 97 CLR 633; Commissioner of Taxation v Clyne [1958] HCA 10; (1958) 100 CLR 246 at 267-268; Mason v New South Wales [1959] HCA 5; (1959) 102 CLR 108; Cormack v Cope [1974] HCA 28; (1974) 131 CLR 432 at 464-465; Victoria v The Commonwealth and Hayden (the AAP Case) [1975] HCA 52; [1975] HCA 52; (1975) 134 CLR 338 at 361; Attorney-General (NSW); Ex rel McKellar v The Commonwealth [1977] HCA 1; (1977) 139 CLR 527 at 550.
[7] Commissioner for Motor Transport v Antill Ranger & Co Pty Ltd [1956] UKPCHCA 5; (1956) 94 CLR 177 at 180 (PC); [1956] AC 527 at 537.
[9] Chicot County Drainage District v Baxter State Bank [1940] USSC 4; 308 US 371 (1940); Linkletter v Walker [1965] USSC 125; 381 US 618 at 639-640 (1965); Stovall v Denno [1967] USSC 177; 388 US 293 (1967); James B Beam Distilling Co v Georgia 501 US 529 at 545 (1991); Willy v Coastal Corp [1992] USSC 23; 503 US 131 at 137 (1992); Harper v Virginia Department of Taxation [1993] USSC 84; 509 US 86 at 97, 113 (1993); Tribe, American Constitutional Law, 3rd ed (2000), vol 1 at 226.
[11] Ha v New South Wales [1997] HCA 34; (1997) 189 CLR 465 at 503-504; cf McKinney v The Queen [1991] HCA 6; (1991) 171 CLR 468 at 476; Fitzgerald, "When Should Unconstitutionality Mean 'Void Ab Initio'?", (1994) 1 Canberra Law Review 205 at 211.
[12] As happened in Reference re Manitoba Language Rights [1985] 1 SCR 721 at 780; cf Bilodeau v Attorney General of Manitoba [1986] 1 SCR 449 at 457; Gould v Brown [1998] HCA 6; (1998) 193 CLR 346 at 501
[17] Lange v Australian Broadcasting Corporation [1997] HCA 25; (1997) 189 CLR 520 cited in Re Wakim [1999] HCA 27; (1999) 73 ALJR 839 at 857; [1999] HCA 27; 163 ALR 270 at 295.
[20] For example in the Federal Court Act, s 5(2).
[21] Dixon, "De Facto Officers", (1938) 1 Res Judicatae 285; cf Re Governor, Goulburn Correctional Centre; Ex parte Eastman [1999] HCA 44; (1999) 73 ALJR 1324 at [1999] HCA 44; 1357; 165 ALR 171 at 216; Cassell v The Queen [2000] HCA 8; (2000) 74 ALJR 535 at 547-548; [2000] HCA 8; 169 ALR 439 at 456-458.
[22]Pannam, "Unconstitutional Statutes and De Facto Officers", (1966) 2 Federal Law Review 37 at 38.
[23] Pannam, "Unconstitutional Statutes and De Facto Officers", (1966) 2 Federal Law Review 37 at 61-62.
[24] Re Wakim [1999] HCA 27; (1999) 73 ALJR 839 at 843 per Gleeson CJ, 846 per Gaudron J, 851-854 per McHugh J, 862-863 per Gummow and Hayne JJ, 893 per Callinan J; [1999] HCA 27; 163 ALR 270 at 276, 281, 287-292, 302-304, 344.
[25] See especially Re Wakim [1999] HCA 27; (1999) 73 ALJR 839 at 862-863 per Gummow and Hayne JJ; cf at 884-888; [1999] HCA 27; 163 ALR 270 at 303-304; cf at 333-337
[26] Written submissions of the State of Victoria.
[27] Residual Assco Group v Spalvins [2000] HCA 33; 202 CLR 629; 172 ALR 366; 74 ALJR 1013 (13 June 2000) per GLEESON CJ, GAUDRON, McHUGH, GUMMOW, HAYNE AND CALLINAN JJwho also observed in this case:” Lurking in the background of the present case are important constitutional issues including whether an order of a federal court, or of a court exercising federal jurisdiction, made without constitutional authority is a nullity and of no effect. The parties and most of the interveners maintained that, although the order may be liable to be declared void ab initio, it nevertheless remains of full force and effect until quashed or otherwise set aside. The States of South Australia and Victoria maintained that such an order is a nullity and is not, and never was, of any effect. In the view that we take of the case, however, these issues do not arise. It is true that South Australia also appears to contend that a "relevant order" of the kind referred to in s 11 was a nullity. South Australia submitted: "Where the only 'semblance' for the jurisdiction of a court is an invalid statute then the court has no jurisdiction. The statute cannot be relied upon to confer any jurisdiction upon the court. This must include the jurisdiction for the court to determine its own jurisdiction. Where the only 'semblance' for the jurisdiction of the court is an invalid statute any order made in exercise of that purported jurisdiction is necessarily invalid ab initio." However, s 19 of the Federal Court of Australia Act 1976 (Cth) ("the Federal Court Act") declares that the Federal Court "has such original jurisdiction as is vested in it by laws made by the Parliament." That grant of jurisdiction carries with it the power to determine whether any particular vesting of original jurisdiction was validly granted to it. So too does s 39B(1A)(c) of the Judiciary Act 1987 which confers original jurisdiction on the Federal Court in any matter "arising under any laws made by the Parliament." Relevantly, s 9(2) of the Jurisdiction of Courts (Cross-vesting) Act (Cth) ("the Commonwealth Cross-vesting Act") and s 56(2) of the Corporations Act 1989 (Cth) ("the Commonwealth Corporations Act") were the laws made by the Parliament which purported to vest jurisdiction in the Federal Court in respect of proceedings relating to State matters. The Federal Court therefore had jurisdiction under s 19 of the Federal Court Act and s 39B(1A)(c) of the Judiciary Act to determine whether the purported vesting under the Commonwealth Cross-vesting Act and the Commonwealth Corporations Act was valid. Accordingly, an order of the Federal Court falling within the definition of a "relevant order" in s 11 of the State Act was an order that the Federal Court had jurisdiction to make. Similarly, s 31(1)(d) of the Family Law Act 1975 (Cth) ("the Family Law Act") conferred on the Family Court of Australia jurisdiction with respect to "matters ... with respect to which proceedings may be instituted in the Family Court under this Act or any other Act." That paragraph, therefore, gave the Family Court power to determine whether any particular vesting of original jurisdiction was validly granted to it. By reason of s 31(1)(d), therefore, the Family Court had jurisdiction to determine whether the Commonwealth Cross-vesting Act and the Commonwealth Corporations Act validly vested jurisdiction in it. It follows that any "relevant order" made by a federal court, as defined, was an order that was within the jurisdiction of that federal court. Because that is so, it is unnecessary in these proceedings to determine whether an order of a federal court, or of a court exercising federal jurisdiction, made without constitutional authority is a nullity and of no effect.The question whether "relevant orders" made by a federal court, as defined, are nullities is rested on the premise that they are made without jurisdiction. If they are made within jurisdiction, no such question arises, whether at the threshold or otherwise.”
[28] Coleman v Power [2004] HCA 39; 220 CLR 1; 209 ALR 182; 78 ALJR 1166 (1 September 2004) per HEYDON J
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