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Published online by Cambridge University Press: 01 January 2025
The Australian Constitution constrains the scope of executive power that Parliament is capable of conferring in several ways. This article examines whether any constraints flow from the inherent requirements of ‘law’ itself. That is, is Parliament incapable of conferring executive power of a certain kind or breadth, because the statute that would be required to do so is simply not a ‘law’ for the purposes of the Australian Constitution? More broadly, the article explores the connection between constitutional doctrine and legal theory, and the ways in which statutory conferrals of very broad executive powers can diminish the rule of law.
I give special thanks to Associate Professor Patrick Emerton and Dr Triantafyllos Gkouvas for lengthy discussions on the subject of this article. I also thank Professor Matthew Groves for very helpful comments on an earlier draft. This article is derived from a paper presented to the Monash University Faculty of Law Work in Progress seminar, and the Melbourne Law School Legal Theory Workshop. I thank the organisers and attendees of those workshops for their help in formulating these ideas, especially Dr Janina Boughey, Professor Jeffrey Goldsworthy and Associate Professor Kristen Rundle. Finally, thank you to the anonymous referees for their insightful and constructive comments.
1 Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476, 513 [103] (Gaudron, McHugh, Gummow, Kirby and Hayne JJ).
2 Bodruddaza v Minister for Immigration and Multicultural Affairs (2007) 228 CLR 651.
3 [2017] HCA 33 (6 September 2017).
4 We may, however, question whether the legislative provision considered in that case (s 503A(2) of the Migration Act 1958 (Cth)) impeded judicial review to such an extent as to render it invalid. As Edelman J explained in his powerful dissent, legislation which restricted the courts’ access to information or otherwise impeded judicial review of executive action to a far greater extent than s 503A(2) had been upheld in the past: Graham [2017] HCA 33 (6 September 2017), [80]–[84], [123]–[167]. This recent case will require further analysis, and is revisited briefly below.
5 I say ‘now’, as it took time for any such organising theory to emerge: Stephen, Gageler, ‘The Underpinnings of Judicial Review of Administrative Action: Common Law or Constitution?’ (2000) 28 Federal Law Review 303Google Scholar. This is not to say that this theory is entirely clear, or uncontested.
6 Of course, executive actors also enjoy certain non-statutory powers, but these are not the focus of this article.
7 Matthew, Groves, ‘Substantive Legitimate Expectations in Australian Administrative Law’ (2008) 32 Melbourne University Law Review 470, 506–23Google Scholar. See also Michael, Taggart, ‘’Australian Exceptionalism’ in Judicial Review’ (2008) 36 Federal Law Review 1Google Scholar.
8 For the canonical statement of this approach, see A-G (NSW) v Quin (1990) 170 CLR 1, 35–6 (Brennan J). This has become orthodoxy; the ‘root principle’ that informs judicial review: Justice Kenneth Hayne, ‘Deference: An Australian Perspective’ [2011] Public Law 75, 77. See also Matthew, Groves, ‘Legitimate Expectations in Australia: Overtaken by Formalism and Pragmatism’ in Matthew, Groves and Greg, Weeks (eds), Legitimate Expectations in the Common Law World (Hart Publishing, 2017) 319, 323Google Scholar.
9 Minister for Immigration and Border Protection v SZSSJ (2016) 90 ALJR 901, 914 [81].
10 Stephen, Gageler, ‘The Legitimate Scope of Judicial Review’ (2001) 21 Australian Bar Review 279Google Scholar.
11 For example, it has been questioned whether a statute that abrogates fundamental rights can be properly called a ‘law’. Some of the case law to consider this question is discussed below.
12 (2003) 211 CLR 476.
13 Ibid 482 [3] (Gleeson CJ), 498 [53], 505 [73], 512 [98] (Gaudron, McHugh, Gummow, Kirby and Hayne JJ).
14 Ibid 484 [9] (Gleeson CJ), 505 [73] (Gaudron, McHugh, Gummow, Kirby and Hayne JJ).
15 Ibid 512 [101].
16 Ibid 512 [102].
17 Ibid 513 [102]. The plurality suggested that Parliament's power to enact this kind of statute might also be confined by separation of powers principles, or ss 51 and 52 of the Constitution. The Solicitor-General of the Commonwealth suggested other ways in which a statutory conferral of power could be designed, so as to make it impervious to judicial review (for example, stipulating that the limitations imposed by that statute were in the nature of non-binding guidelines only). Some comment is made on this issue below, though it is not my focus.
18 The relevant case law is discussed below.
19 See, eg, Kable v DPP (NSW) (1996) 189 CLR 51, 64 (Brennan CJ), 76 (Dawson J), 109 (McHugh J); Duncan v New South Wales (2015) 255 CLR 388, 406–7 [38]–[39].
20 See, eg, Durham Holdings v New South Wales (2001) 205 CLR 399, 431–2 [74]–[75] (Kirby J); Plaintiff S157 (2003) 211 CLR 476, 513 [102]. Note, in New South Wales v Commonwealth (2006) 229 CLR 1, 197 [460] (‘Work Choices Case’), Kirby J appeared to support an argument along these lines, but this part of his judgment is intertwined with a discussion of whether the statute in question would demonstrate the requisite connection to a head of power.
21 Work Choices Case (2006) 229 CLR 1, 175 [399]; Bodruddaza v Minister for Immigration and Citizenship (2007) 228 CLR 651, 663 [28] (Gleeson CJ, Gummow, Kirby, Hayne, Heydon and Crennan JJ); Plaintiff M61/2010E v Commonwealth (2010) 243 CLR 319, 346–7 [56]; Plaintiff M79/2012 v Minister for Immigration and Citizenship (2013) 252 CLR 336, 367 [88] (Hayne J). See also Patrick, Keane, ‘Judicial Power and the Limits of Judicial Control’ in Peter, Cane (ed), Centenary Essays for the High Court of Australia (LexisNexis, 2004) 295, 311Google Scholar.
22 The most extensive treatments to date are found in Will, Bateman, ‘The Constitution and the Substantive Principles of Judicial Review: The Full Scope of the Entrenched Minimum Provision of Judicial Review’ (2011) 39 Federal Law Review 463, 493–5Google Scholar; Leighton, McDonald, ‘The Entrenched Minimum Provision of Judicial Review and the Rule of Law’ (2010) 21 Public Law Review 14, 19–20Google Scholar.
23 Cheryl, Saunders, ‘Constitutional Dimensions of Statutory Interpretation’ in Anthony, J Connolly and Daniel, Stewart (eds), Public Law in the Age of Statutes (Federation Press, 2015) 27, 43Google Scholar.
24 Bateman, above n 22, 493; McDonald, above n 22, 19.
25 Mark, Aronson, Matthew, Groves and Greg, Weeks, Judicial Review of Administrative Action and Government Liability (Thomson Reuters, 6th ed, 2017) 1058–71Google Scholar, 1080–1. Note, the decision that extended these principles to the State level—Kirk v Industrial Relations Court of New South Wales (2010) 239 CLR 531—is controversial, for reasons I explore below.
26 For example, the Constitution does not generally oblige the federal Parliament to legislate compatibly with human rights norms. There are a few constitutional limitations on legislative power that we might loosely describe as ‘rights-protecting’ (such as ss 80 and 116, and the implied freedom of political communication), though these are generally not conceptualised as rights in the strict sense of that term.
27 Lisa, Burton Crawford, The Rule of Law and the Australian Constitution (Federation Press, 2017) 50–1Google Scholar, 106–19; Lisa, Burton, ‘Why These Three? The Significance of the Selection of Remedies in Section 75(v) of the Australian Constitution’ (2014) 42 Federal Law Review 253Google Scholar.
28 See, eg, Graham [2017] HCA 33 (6 September 2017), [174]–[175], citing Crawford, The Rule of Law and the Australian Constitution, above n 27.
29 Graham [2017] HCA 33 (6 September 2017), [52].
30 See, eg, Minister for Immigration and Citizenship v Li (2013) 249 CLR 332, 362 [63], 369 [86] (Hayne, Kiefel and Bell JJ), 371 [92] (Gageler J); Minister for Immigration and Border Protection v Singh (2014) 231 FCR 437, 445 [43]. If the legal standard of reasonableness truly depends upon the statutory context, then perhaps s 503A(2) should be read as affecting the standard of reasonableness required.
31 At most, it might be argued that the decision effectively means that executive decision makers are now required to give reasons for their decisions, lest the exercise of judicial power be thwarted, but it is not possible to pursue this line of inquiry here.
32 This draws upon Lisa Burton Crawford, ‘Can Parliament Confer Plenary Executive Power? The Limitations Imposed by Sections 51 and 52 of the Australian Constitution’ (2016) 44 Federal Law Review 287. The points presented here are explained fully therein.
33 (2003) 211 CLR 476, 513 [102].
34 This draws upon Lisa, Burton Crawford, ‘Who Decides the Validity of Executive Action? No-Invalidity Clauses and the Separation of Powers’ (2017) 24 Australian Journal of Administrative Law 81Google Scholar and Crawford, The Rule of Law and the Australian Constitution, above n 27, ch 7. The points presented here are explained fully therein.
35 TCL Air Conditioner v Federal Court (2013) 251 CLR 533, 553 [27] (French CJ and Gageler J).
36 R v Kirby; Ex parte Boilermakers’ Society of Australia (1956) 94 CLR 254; Polyukhovich v Commonwealth (1991) 172 CLR 501, 608 (Deane J).
37 For a recent discussion of these principles and their authority, see Graham [2017] HCA 33 (6 September 2017), especially [29]–[37].
38 These include the principle of legality, the presumption of retrospectivity, and the presumption of mens rea (in the case of statutes that create criminal offences). See also Crawford, The Rule of Law and the Australian Constitution, above n 27, 93, 101–2, 115–6, 126–30, 151–2, 167–8.
39 See generally Aronson, Groves and Weeks, above n 25, 118–22; Crawford, The Rule of Law and the Australian Constitution, above n 27, 111–6.
40 Aronson, Groves and Weeks, above n 25, 121–2, 315–6.
41 See, eg, Minister for Immigration and Citizenship v Li (2013) 249 CLR 332, 362 [63], 369 [86] (Hayne, Kiefel and Bell JJ), 371 [92] (Gageler J); Minister for Immigration and Border Protection v Singh (2014) 231 FCR 437, 445 [43].
42 See, eg, Plaintiff S10/2011 v Minister for Immigration and Citizenship (2012) 246 CLR 636, 666 [97] (Gummow, Hayne, Crennan and Bell JJ).
43 This deliberately borrows language typically used to explain the principle of legality: R v Secretary of State for the Home Department; Ex parte Simms [2000] 2 AC 115, 131 (Lord Hoffman). Many of the principles discussed above are treated as ‘common law rights’ of the kind protected by that presumption (for a clear example, see Saeed v Minister for Immigration and Citizenship (2010) 241 CLR 252, 259 [15] (French CJ, Gummow, Hayne, Crennan and Kiefel JJ). As to the principle of legality more generally, see Dan, Meagher and Matthew, Groves (eds), The Principle of Legality in Australia and New Zealand (Federation Press, 2017)Google Scholar.
44 Australian Communist Party v Commonwealth (1951) 83 CLR 1, 258 (Fullagar J).
45 Recall also the discussion of Graham [2017] HCA 33 (6 September 2017).
46 See, eg, Federal Commissioner of Taxation v Futuris Corporation Ltd (2008) 237 CLR 146, where the Court concluded that a very broadly worded no-invalidity clause was not intended to capture a decision vitiated by bad faith, when construed in light of the broader statutory context.
47 Janina, Boughey and Lisa, Burton Crawford, ‘Jurisdictional Error: Do We Really Need It?’ in Mark, Elliott, Jason, Varuhas, and Shona, Wilson Stark (eds) The Unity of Public Law? Doctrinal, Theoretical and Comparative Perspectives (Hart, 2018, forthcoming) 395Google Scholar. See also Gageler, above n 10, 287–8; Mark, Leeming, ‘The Riddle of Jurisdictional Error’ (2014) 38 Australian Bar Review 139, 150Google Scholar.
48 Acts Interpretation Act 1901 (Cth) s 15A; Residual Assco Group Ltd v Spalvins (2000) 202 CLR 629, 644 [28] (Gleeson CJ, Gaudron, McHugh, Gummow, Hayne and Callinan JJ). See also Zheng v Cai (2009) 239 CLR 446, 455–6 [28] (French CJ, Gummow, Crennan, Kiefel and Bell JJ).
49 Wotton v Queensland (2012) 246 CLR 1.
50 1 Wm & M sess 2, c 2.
51 A v Hayden (1984) 156 CLR 532, 540 (Gibbs CJ), 550 (Mason J), 562 (Murphy J), 580 (Brennan J); Plaintiff M79/2012 v Commonwealth (2013) 252 CLR 336, [85]–[87] (Hayne J); Plaintiff M68/2015 v Minister for Immigration and Border Protection (2016) 257 CLR 42, 98–9 [136] (Gageler J).
52 (2013) 252 CLR 336, 366–7 [87]. This case considered s 195A(2) of the Migration Act 1958 (Cth) which empowered the Minister to grant a certain kind of visa ‘if the Minister thinks that it is in the public interest to do so’. Section 195A(3) stated that in exercising that power the Minister was not bound by certain other parts of the Act, nor the regulations. Hayne J concluded (in dissent) that, properly construed, s 195A(2) did not confer a power confined only by the national interest criterion; there were other limitations imposed by the statute, not expressly excluded by s 195A(3), that applied. Though his Honour thought that this was clear, he suggested that the principle described should be brought to bear in cases where ‘dispensing provisions’ are ambiguous. Hayne J also noted that the enactment of a statutory provision which purported to permit a Minister ‘to dispense with or relieve from the application of otherwise binding provisions of [an] Act’ may not amount to an exercise of legislative power: 366–7 [87]–[88], citing Plaintiff S157 (2003) 211 CLR 476. However, his Honour concluded that it was not necessarily to ‘consider these more fundamental issues’ in this case: 368 [89].
53 Saunders, above n 23.
54 (2003) 211 CLR 476, 512 [101].
55 Ibid 513 [102].
56 The passage has been interpreted in this way since: see Bodruddaza v Minister for Immigration and Multicultural Affairs (2007) 228 CLR 651, 663–4 [28].
57 See also Bateman, above n 22, 494.
58 Grunseit (1943) 67 CLR 58, 82, quoting J W Hampton Jr & Co v United States 276 US 394, 407 (1928).
59 Ibid 83 (Latham CJ; Starke J agreeing at 93).
60 By virtue of the combination of ss 5, 6 and 7 and the definition of ‘decision’ in s 3.
61 See also Bateman, above n 22, 494 (‘One problem with applying the definition of legislative power adopted in Grunseit is that it was not formulated in relation to the Constitution, but, rather, to a statutory scheme providing for delegated legislation.’).
62 (1943) 67 CLR 58, 82.
63 See, eg, Federal Airports Corporation v Aerolineas Argentinas (1997) 76 FCR 582, 591 [E].
64 Queensland Medical Laboratory v Blewett (1988) 16 ALD 440, 457.
65 See, eg, Evans v Friemann (1981) 53 FLR 229, 234–7 (Fox ACJ); Work Choices Case (2006) 229 CLR 1.
66 See also Bateman, above n 22, 497.
67 See, eg, Work Choices Case (2006) 229 CLR 1; Plaintiff M61/2010E v Commonwealth (2010) 243 CLR 319.
68 Note, some theorists downplay the distinction between law and other phenomena, or at least, between legal obligations and moral obligations more generally. See, eg, Scott, Hershovitz, ‘The End of Jurisprudence’ (2015) 124 Yale Law Journal 1160Google Scholar.
69 Lon, L Fuller, ‘Positivism and Fidelity to Law: A Reply to Professor Hart’ (1958) 71 Harvard Law Review 630, 660Google Scholar.
70 This is Martin Krygier's summary of Hart's view: Martin, Krygier, ‘The Hart-Fuller Debate, Transitional Societies’ in Peter, Cane (ed), The Hart-Fuller Debate in the Twenty-First Century (Hart Publishing, 2010) 112, 112Google Scholar. See H L A, Hart, ‘Positivism and the Separation of Law and Morals’ (1958) 71 Harvard Law Review 593Google Scholar.
71 See also Bateman, above n 22, 494.
72 Transcript of Proceedings, Plaintiff S157/2002 v Commonwealth [2002] HCATrans 420 (3 September 2002). McHugh J made similar comments in the course of argument in Plaintiff S134/2002; Ex parte Minister for Immigration and Multicultural and Indigenous Affairs: Transcript of Proceedings, Plaintiff S134/2002; Ex parte Minister for Immigration and Multicultural and Indigenous Affairs [2002] HCATrans 419 (3 September 2002).
73 See, eg, Kable v DPP (NSW) (1996) 189 CLR 51, 53, 76 (Dawson J).
74 Momcilovic v The Queen (2011) 245 CLR 1, 106 [229]. Specifically, Gummow J argued that Austin's theory has ‘continuing significance for the study of statute law’, especially in connection with s 109 of the Constitution.
75 Bateman, above n 22, 494.
76 Colin, Tapper, ‘Austin on Sanctions’ (1965) 23 Cambridge Law Journal 271, 271Google Scholar.
77 H L A, Hart, The Concept of Law (Oxford University Press, 3rd ed, 2012) 28Google Scholar. See also Scott, Shapiro, Legality (Harvard University Press, 2011) 64Google Scholar; Philip, Mullock, ‘Nullity and Sanction’ (1974) 83 Mind 439Google Scholar.
78 This assumes that the officer has merely acted without or beyond power and not, for example, committed the tort of misfeasance.
79 (2011) 245 CLR 1, 107 [231].
80 These complexities are explored in Aronson, Groves and Weeks, above n 25, 731–51.
81 Hart, above n 77, 34.
82 Ibid 35. This leads to other, illogical consequences: for example, it would seem to mean that only the statutory provision that stipulates the sanction is a law, whereas the provision that contains the command is not. Gummow J seems to support this view: Momcilovic v The Queen (2011) 245 CLR 1, 107 [232]. Hart argues that this is too divorced from the realities of legal practice to be an acceptable theory of law: Hart, above n 77, 40.
83 Bateman, above n 22, 493–4.
84 Ibid 493.
85 McDonald, above n 22, 19.
86 Joseph, Raz, The Authority of Law: Essays on Law and Morality (Oxford University Press, 2nd ed, 2009).Google Scholar
87 Lon, L Fuller, The Morality of Law (Yale University Press, 1969)Google Scholar; Kristen, Rundle, Forms Liberate: Reclaiming the Jurisprudence of Lon L Fuller (Hart Publishing, 2012)Google Scholar.
88 Rundle, above n 87, 80.
89 Ibid 79.
90 T R S, Allan, Sovereignty of Law: Freedom, Constitution and Common Law (Oxford University Press, 1st ed, 2013)Google Scholar; T R S, Allan, Constitutional Justice: A Liberal Theory of the Rule of Law (Oxford University Press, 2001)Google Scholar.
91 Crawford, The Rule of Law and the Australian Constitution, above n 27.
92 McGinty v Western Australia (1996) 186 CLR 140, 232.
93 Adrienne, Stone, ‘The Limits of Constitutional Text and Structure: Standards of Review and the Freedom of Political Communication’ (1999) 23 Melbourne University Law Review 668Google Scholar; Adrienne, Stone, ‘The Limits of Constitutional Text and Structure Revisited’ (2005) 28 University of New South Wales Law Journal 842Google Scholar.
94 SirWilliam, Wade and Christopher, Forsyth, Administrative Law (Oxford University Press, 9th ed, 2004) 35Google Scholar.
95 Kirk v Industrial Relations Court of New South Wales (2010) 239 CLR 531, 581 [99].
96 Note, in the Australian legal system, this is unlikely to be a cause of invalidity: Crawford, ‘Can Parliament Confer Plenary Executive Power? The Limitations Imposed by Sections 51 and 52 of the Australian Constitution’, above n 32; James, Stellios, Zines's The High Court and the Constitution (Federation Press, 6th ed, 2015) 202–7Google Scholar.
97 See, eg, Gerlach v Clifton Bricks Pty Ltd (2002) 209 CLR 478, 503–4.
98 Recall the discussion in Section II. See also Crawford, ‘Can Parliament Confer Plenary Executive Power? The Limitations Imposed by Sections 51 and 52 of the Australian Constitution’, above n 32; Crawford, ‘Who Decides the Validity of Executive Action? No-Invalidity Clauses and the Separation of Powers’, above n 34.
99 A particularly clear example is found in Work Choices Case (2006) 229 CLR 1, 175 [399]. Of course, the fact that the Court draws such distinctions suggests important philosophical commitments regarding the connection between law and morality.
100 (2001) 205 CLR 399. Note, Goldsworthy pointed to this judgment, and the possibility that ‘law’ might be treated as a constitutional concept, as (as I take him to mean it) an example of the undesirable lengths to which this interpretive method may go: Jeffrey, Goldsworthy, ‘Kable, Kirk and Judicial Statesmanship’ (2014) 40 Monash University Law Review 75, 103Google Scholar.
101 (2001) 205 CLR 399, 431 [74].
102 Ibid, 431–432 [75].
103 (1996) 189 CLR 51.
104 By virtue of ss 71 and 77(iii).
105 By virtue of not only ss 71 and 77(iii), but also s 73(ii) (which provides an avenue of appeal from State Supreme Courts to the High Court).
106 (1996) 189 CLR 51, 141–2.
107 (2006) 228 CLR 45, 76 [63] (Gummow, Hayne and Crennan JJ).
108 (2010) 239 CLR 531, 580 [96].
109 Chief Justice J J Spigelman, ‘Public Law and the Executive’ (Speech delivered at the Institute of Public Administration Australia Garran Oration 2010, Adelaide, 22 October 2010) 9–10.
110 Anne, Twomey, ‘The Defining Characteristics of Constitutional Expressions and the Nationalisation of the State Court System’ (2013) 11(2) The Judicial Review 233, 237Google Scholar.
111 Chief JusticeJ J, Spigelman, ‘The Centrality of Jurisdictional Error’ (2010) 21(2) Public Law Review 77, 80Google Scholar.
112 Twomey, above n 110, 239.
113 See especially Oscar, Roos, ‘Accepted Doctrine at the Time of Federation and Kirk v Industrial Court of New South Wales’ (2013) 35 Sydney Law Review 781Google Scholar; Goldsworthy, above n 100; Nicholas, Gouliaditis, ‘Privative Clauses: Epic Fail’ (2010) 34 Melbourne University Law Review 870Google Scholar. Edelman J raised similar objections to the arguments put by the plaintiffs in Graham, describing them as ‘ahistorical’: [2017] HCA 33 (6 September 2017), [79]. It seems likely that, given the approach to constitutional interpretation taken by Edelman J in this case, his Honour may be of the view that Kirk was wrongly decided.
114 See especially Goldsworthy, above n 100; Jeffrey, Goldsworthy, ‘Constitutional Implications Revisited’ (2011) 30 University of Queensland Law Journal 9Google Scholar.
115 Goldsworthy, ‘Constitutional Implications Revisited’, above n 114, 18.
116 Goldsworthy, ‘Kable, Kirk and Judicial Statesmanship’, above n 100. See further Jeffrey, Goldsworthy, ‘The Limits of Judicial Fidelity to Law—The Coxford Lecture’ (2011) 24 Canadian Journal of Law and Jurisprudence 1Google Scholar.
117 See especially R v Hickman; Ex parte Fox and Clinton (1945) 70 CLR 598.
118 Roos, above n 113.
119 Goldsworthy, ‘Kable, Kirk and Judicial Statesmanship’, above n 100 , 99–100.
120 Ibid 101.
121 Patrick, Emerton, ‘Political Freedoms and Entitlements in the Australian Constitution—an Example of Referential Intentions Yielding Unexpected Legal Consequences’ (2010) 38(2) Federal Law Review 169Google Scholar; Patrick Emerton, ‘Judicial Integrity under the Australian Constitution’ (Paper presented at the Conference on Judicial Independence in Australia: Contemporary Challenges, Future Directions, T C Beirne School of Law, University of Queensland, 10–11 July 2015).
122 Emerton, above n 121 (‘Political Freedoms and Entitlements in the Australian Constitution’), 170–1. See also Hilary, Putnam, ‘Dreaming and Depth Grammar’ in R J, Butler (ed), Analytical Philosophy (Blackwell, 1962) 211Google Scholar, 281–21; Hilary, Putnam, ‘The Meaning of “Meaning”’ in Mind, Language and Reality: Philosophical Papers, Volume 2 (Cambridge University Press, 1975) 215–7Google Scholar; Saul, Kripke, Naming and Necessity (Harvard University Press, 1980)Google Scholar.
123 See especially the treatment in Martin, Krygier, Philip Selznick: Ideals in the World (Stanford University Press, 2012)Google Scholar.
124 Goldsworthy, ‘Kable, Kirk and Judicial Statesmanship’, above n 100, 103.
125 S A, De Smith, Judicial Review of Administrative Action (Stevens, 3rd ed, 1973) 3Google Scholar.
126 For an example, see Australian Communist Party v Commonwealth, where the High Court accepted that the decisions of the Governor-General were not reviewable: Australian Communist Party v Commonwealth (1951) 83 CLR 1, 176, 178–9 (Dixon J), 257 (Fullagar J).
127 As acknowledged and discussed in Goldsworthy, ‘Constitutional Implications Revisited’, above n 114, 17–8.
128 As explained in Jeffrey, Goldsworthy, ‘The Case for Originalism’ in Grant, Huscroft and Bradley, Miller (eds), The Challenge of Originalism: Theories of Constitutional Interpretation (Cambridge University Press, 2011) 42Google Scholar.
129 Emerton, ‘Political Freedoms and Entitlements in the Australian Constitution’, above n 121, 190–1, 195–202.
130 This seems to assume that Parliament can make law, and that the enactment of a statute achieves this directly—an assumption contrary to certain jurisprudential theories: Mark, Greenberg, ‘The Moral Impact Theory of Law’ (2014) 123 Yale Law Journal 1118Google Scholar. I do not think it is necessary to pursue this line of thinking further for the purposes of this article.
131 See, eg, Amalgamated Society of Engineers v Adelaide Steamship Co Ltd (1920) 28 CLR 129, 151, 154.
132 Constitution s 71.
133 Constitution ss 73, 75, 76. See also Constitution s 77.
134 (1921) 29 CLR 257, 264 (Knox CJ, Gavan Duffy, Powers, Rich and Starke JJ) (emphasis added).
135 Victorian Stevedoring and General Contracting Company v Dignan (1931) 46 CLR 73.
136 Unless one reads the first clause of s 61 as the conferral of power, and the second clause as a delineation of its scope.
137 Constitution Act 1902 (NSW) s 5.
138 (2003) 211 CLR 476, 513 [102], quoting Commonwealth v Grunseit (1943) 67 CLR 58, 82 (Latham CJ).
139 Momcilovic v The Queen (2011) 245 CLR 1, 107 (Gummow J).
140 It is worth noting that the privative clause in question in this case was not found to be invalid, either; rather, it was read down so as not to prevent judicial review of jurisdictional error (and hence, to not apply in this case).
141 DPP v Walters [2015] VSCA 303. In this case, the Victorian Court of Appeal held (by majority) that legislation enacted by the Victorian Parliament (which, broadly speaking, purported to direct courts to issue criminal sentences in such a way as to ‘raise’ the median sentence for certain crimes) could not be given any effect. A sentencing judge could not know how an individual sentence would affect the median. Thank you to Dan Meagher for bringing this case to my attention.
142 Lisa, Burton Crawford and Jeffrey, Goldsworthy, ‘Constitutionalism’, in Cheryl, Saunders and Adrienne, Stone (eds), Oxford Handbook to the Australian Constitution (Oxford University Press, 2018, forthcoming)Google Scholar.
143 Goldsworthy, ‘The Case for Originalism’, above n 128, 43.
144 Bank of New South Wales v Commonwealth (1948) 76 CLR 1, 186 (Latham CJ); Kartinyeri v Commonwealth (1998) 195 CLR 337, 355 (Brennan CJ and McHugh J); Durham Holdings Pty Ltd v New South Wales (2001) 205 CLR 399, 410 (Gaudron, McHugh, Gummow and Hayne JJ).
145 See, eg, Allan, Sovereignty of Law: Freedom, Constitution and Common Law, above n 90; Allan, Constitutional Justice: A Liberal Theory of the Rule of Law, above n 90. I also challenged Allan's theory, in its purported application to Australian constitutional law, in Burton Crawford, The Rule of Law and the Australian Constitution, above n 27 .
146 Jeffrey, Goldsworthy, The Sovereignty of Parliament: History and Philosophy (Oxford University Press, 2001)Google Scholar; Jeffrey, Goldsworthy, Parliamentary Sovereignty: Contemporary Debates (Cambridge University Press, 2010)Google Scholar.
147 (2003) 211 CLR 476, 512–13 [101]–[102].