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Published online by Cambridge University Press: 24 January 2025
My subject is the extent to which the federal features of the Constitution restrict the power of Parliaments in Australia to legislate to confer discretionary powers on executive and administrative officers. I shall also examine the relevance of the ayailability and scope of administrative law remedies to that issue.
By “the federal features of the Constitution” I mean the distribution of powers between the Commonwealth and the States and provisions that deal with the relationship of the several States with each other and with the Commonwealth, such as ss 92 and 117; and those limitations on federal powers designed to prevent State favouritism, for example ss 99 and 51(ii), (iii).
I will not be dealing with the effect of the separation of the judicial power of the Commonwealth on the administration, under Chapter III of the Constitution. While an independent and separate central judiciary may be regarded as an essential ingredient of a federal state, its role and function extend further, providing a guarantee of the rule of law, which is, of course, just as applicable to non-federal states.
1 Australian Communist Party v Commonwealth (1951) 83 CLRl at 222.
2 Hughes and Vale Pty Ltd v New South Wales (No 2) (1955) 93 CLR 127 at 165-166.
3 The view was overturned in R v Toohey; Ex parte Northern Land Council (1981) 151 CLR 170. See also FAI Insurances Ltd v Winnecke (1982) 151 CLR 342.
4 Australian Communist Party v Commonwealth (1951) 83 CLRl at 258.
5 R v Portus; Ex parte McNiel (1961) 105 CLR 537 at 540; Re Heagney; Ex parte ACT Employers Federation (1976) 137 CLR 86 at 104.
6 (1975) 132 CLR 307.
7 Ibid at 310 per McTiernan J, 315 per Gibbs J, 327 per Jacobs J.
8 Hughes and Vale Pty Ltd v New South Wales (No 1) (1954) 93 CLR 1 at 32-33; Hughes and Vale Pty Ltd v New South Wales (No 2) (1955) 93 CLR 127 at 166; Miller v TCN Channel Nine Pty Ltd (1986) 161 CLR 556 at 614.
9 (1952) 85 CLR 488.
10 Ibid at 520.
11 Ibid at 522.
12 (1969) 119 CLR 365.
13 Dawson v Commonwealth (1946) 73 CLR 157.
14 (1969) 119 CLR 365 at 389.
15 Marcus Clark and Co v Commonwealth (1952) 87 CLR 177 at 204.
16 (1937) 57 CLR 327.
17 Ibid at 353
18 McCarter v Brodie (1950) 80 CLR 432 at 499.
19 Cole v Whitfield (1988) 165 CLR 310.
20 Miller v TCN Channel Nine Pty Ltd (1986) 161 CLR 556 at 570,614.
21 Ibid at 619.
22 (1994) 182 CLR 272.
23 Ibid at 303. Similar views were expressed by Brennan J at 331 and Deane J at 342.
24 O'Toole v Charles David Pty Ltd (1991) 171 CLR 232.
25 Ibid at 290.
26 (1975) 132 CLR 307 at 320.
27 Zines, L, “The Balancing of Community and National Interests by the European Court” (1973) 5 FL Rev 171Google Scholar.
28 However, Gummow and Kirby JJ in Commonwealth v Mewett (1997) 191 CLR 471 pointed out that s 75(v) authorised injunctive relief against officers of the Commonwealth, including Ministers, while in England there was, until 1994, doubt as to whether the courts had that jurisdiction. That case also held that s 75 removed Crown immunity in cases where jurisdiction was conferred by that provision. The Constitution, however, does not create private rights of action for damages for attempts to exceed constitutional authority: Kruger v Commonwealth (1997) 190 CLR 1.
29 Rewe-Zentralftnanz eG and Rewe-Zentral AG Landwirtschaftskammer fur das Saarland [1976} ECR 1989; [1977] 1 CMLR 533.
30 Dawson v Commonwealth (1946) 73 CLR 157 at 182.
31 [1987] ECR 4097; [1989] 1 CMLR 901.
32 [1986] ECR 1651, [1986] 3 CMLR 240.
33 [1990] ECR 1-2433; [1990] 3 CMLR 1.
34 (1997) 191 CLR 471 at 546.
35 [1993] 2 CMLR 66.
36 Brasserie du Pecheur SA v Federal Republic of Germany and R v Secretary of State for Transport; Ex parte Factortame Ltd [1996] QB 404 (Factortame III).
37 R v Secretary of State for Transport; Ex parte Factortame Pty Ltd [1999] 4 All ER 906.
38 CJ, Brennan, Toohey, and JJ, Gaudron in Kruger v Commonwealth (1997) 190 CLR 1Google Scholar.
39 Leask v Commonwealth (1996) 187 CLR 579.
40 Brind v Secretary of State for Home Department [1991] 1 All ER 720. Lord Diplock in Council of Civil Seroice Unions v Minister for the Civil Seroice [1985] AC 374 had predicted “the possible adoption in the future of the principle...” The House of Lords refused to apply it in Brind.
41 [1987] 2 CMLR 502.
42 (1990)169 CLR 436.
43 (1994] 1 All ER 910 (HL); (1993] 3 All ER 139 (CA).