Community Law Resource Group

This Act and probably hundreds more are invalid if the High Court would accept everything submitted to it for filing. This proves the High Court can rule state Laws invalid, especially ones that pervert the course of justice, as this one did.

“(1) The object of this Act (The Community Protection Act 1994:) is to protect the community by providing for the preventive detention (by order of the Supreme Court made on the application of the Director of Public Prosecutions) of Gregory Wayne Kable.

(2) In the construction of this Act, the need to protect the

community is to be given paramount consideration.

(3) This Act authorises the making of a detention order

against Gregory Wayne Kable and does not authorise the making of a detention order against any other person.

(4) For the purposes of this section, Gregory Wayne Kable is the person of that name who was convicted in New South Wales on 1 August 1990 of the manslaughter of his wife, Hilary Kable.” The appellant was originally charged with the murder of his wife but the Crown accepted his plea of diminished responsibility to manslaughter for which he was sentenced to imprisonment for a minimum term of four years with an additional term of one year and four months. The imminent release of the appellant from custody under this sentence was the occasion for both the enactment of the Act and the making of an application for a detention order against the appellant pursuant to the Act. The acts of the appellant relied upon to support the application were the sending of threatening letters through the mail. At the time when the application was made, the appellant was in custody pending the hearing of seventeen charges (7) arising from his sending threatening letters through the mail.

This Extract is taken from the 64 pages of this decision;

Four Judges out of six constitutes a binding majority.

Toohey J: (Judge 3)

The Supreme Court of New South Wales was required, at first instance and on appeal, to determine questions arising under the Constitution. In those circumstances s 39(2) of the Judiciary Act, read with s 77(iii) of the Constitution, conferred jurisdiction on the Supreme Court to determine those questions. Section 71 of the Constitution ensured that the judicial power of the Commonwealth was engaged in those circumstances.

20 To the extent that they are invested with federal jurisdiction, the federal courts and the courts of the States exercise a common jurisdiction (136). It follows that in the exercise of its federal jurisdiction a State court may not act in a manner which is incompatible with Ch III of the Commonwealth Constitution.

32. However the Act is invalid by reason of the incompatibility with Ch III of the Commonwealth Constitution that its implementation produces. If the Act operated on a category of persons and a defence to an application for a preventive detention order was confined to a challenge that the criteria in s 5(1) had not been met, different questions might arise. In that situation the judicial power of the Commonwealth might not be involved; that is something on which it is unnecessary to comment. But here the judicial power of the Commonwealth is involved, in circumstances where the Act is expressed to operate in relation to one person only, the appellant, and has led to his detention without a determination of his guilt for any offence. In that event validity is at issue, not simply the reach of the Act in a particular case.

Gaudron J: Judge 4.

2. Several arguments were advanced in favour of the appellant’s contention. I need deal with one only, namely, that Ch III of the Constitution impliedly prevents the Parliament of a State from conferring powers on the Supreme Court of a State which are repugnant to or inconsistent with the exercise by it of the judicial power of the Commonwealth.

11. If Ch III requires that State courts not exercise particular powers, the Parliaments of the States cannot confer those powers upon them. That follows from covering cl 5, which provides that the Constitution is “binding on the courts, judges, and people of every State and of every part of the Commonwealth, notwithstanding anything in the laws of any State”, and from s 106, by which the Constitution of each State is made subject to the Australian Constitution.

12. Were they free to abolish their courts, the autochthonous expedient, more precisely, the provisions of Ch III which postulate an integrated judicial system would be frustrated in their entirety. To this extent, at least, the States are not free to legislate as they please.

McHugh J. Judge 5.

21. In the case of State courts, this means they must be independent and appear to be independent of their own State’s legislature and executive government as well as the federal legislature and government. Cases concerning the States, the extent of the legislative powers of the States and the actions of the executive governments of the States frequently attract the exercise of invested federal jurisdiction. The Commonwealth government and the residents and governments of other States are among those who litigate issues in the courts of a State. Quite often the government of the State concerned is the opposing party in actions brought by these litigants. Public confidence in the exercise of federal jurisdiction by the courts of a State could not be retained if litigants in those courts believed that the judges of those courts were sympathetic to the interests of their State or its executive government.

25: But under the Constitution the boundary of State legislative power is crossed when the vesting of those functions or duties might lead ordinary reasonable members of the public to conclude that the State court as an institution was not free of government influence in administering the judicial functions invested in the court.

30: But the most significant of them is that, whilst imprisonment pursuant to Supreme Court order is punitive in nature, it is not consequent upon any adjudgment by the Court of criminal guilt. Plainly, in my view, such an authority could not be conferred by a law of the Commonwealth upon this Court, any other federal court, or a State court exercising federal jurisdiction. Moreover, not only is such an authority non-judicial in nature, it is repugnant to the judicial process in a fundamental degree.

32. However the Act is invalid by reason of the incompatibility with Ch III of the Commonwealth Constitution that its implementation produces. If the Act operated on a category of persons and a defence to an application for a preventive detention order was confined to a challenge that the criteria in s 5(1) had not been met, different questions might arise. In that situation the judicial power of the Commonwealth might not be involved; that is something on which it is unnecessary to comment. But here the judicial power of the Commonwealth is involved, in circumstances where the Act is expressed to

operate in relation to one person only, the appellant, and has led to his detention without a determination of his guilt for any offence. In that event validity is at issue, not simply the reach of the Act in a particular case.

Gummow J: Judge 6.

13. The appellant points to the particular characteristics of the provision made by the Constitution for the federal judicial power, which were identifiedby Deane J in Re Tracey; Ex parte Ryan (231). His Honour said: “The power to adjudge guilt of, or determine punishment for, breach of the law, the power to determine questions of excess of legislative or executive power and the power to decide controversies about existing rights and liabilities all fall within the concept of judicial power. The Executive

Government cannot absorb or be amalgamated with the judicature by the conferral of non-ancillary executive functions upon the courts. Nor can the Executive itself exercise judicial power and act as prosecutor and judge to punish breach of law by executive fiat or decree. The guilt of the citizen of a criminal offence and the liability of the citizen under the law, either to a fellow citizen or to the State, can be conclusively determined only by a Ch III court acting as such, that is to say, acting judicially. For its part, the Parliament cannot legislate either to destroy the entrenched safeguards of Ch III or to itself assume the exercise of judicial power.”

15. The final steps in the appellant’s submissions are as follows. First, the structure of the Australian Constitution, especially Ch III, does not permit

of an Australian judiciary exercising the judicial power of the Commonwealth but divided into two grades, an inferior grade, namely the possessors of invested federal jurisdiction who are subject to the imposition and receipt of incompatible functions under State law, and a superior grade, comprising this Court and other federal courts which are not subject to the imposition and receipt of such functions whether pursuant to Commonwealth or State law. The second step is that the Constitution, and especially Ch III, assumes and requires, at least as regards the Supreme Courts of the States, an institutional integrity of the State court structure which may not be undermined by the reposition in them of authorities and powers of the nature of those in the Act.

60. The expedient provided for in s 77(iii) would be frustrated if there were no system of State courts to provide these substitute tribunals as repositories of the judicial power of the Commonwealth. Federal jurisdiction could not be invested in a State body which was not a “court” within the meaning of s 77(iii) (270).

64. There may be some uncertainty as to the range of statutes (Imperial and local), instruments, conventions and practices which together, or only in some limited fashion, comprise the Constitution of a State as it existed at the establishment of the Commonwealth (272). It is unnecessary to resolve any such uncertainties at this stage. That is because the Constitution, in the relevant sense, of the colony of New South Wales undoubtedly included the Imperial statute, the New South Wales Constitution Act 1855 (Imp) (273). Section 1 thereof authorised the Crown to assent to the Bill set out in Sched

1 which had been passed by the then New South Wales Legislative Council. Clause 42 of the scheduled Bill stated:

“All the Courts of Civil and Criminal Jurisdiction within the said Colony and all Charters legal Commissions Powers and Authorities and all Officers judicial administrative or ministerial within the said Colony respectively except in so far as the same may be abolished altered or varied by or may be inconsistent with the provisions of this Act or shall be abolished altered or varied by any Act or Acts of the Legislature of the Colony or other competent authority shall continue to subsist in the same form and with the same effect as if this Act had not been made.” S 38 preserved the commissions of the present judges of the Supreme Court of the colony. With the coming of federation, the effect of the new Constitution was to render the Supreme Court as it stood at the establishment of the Commonwealth, the Supreme Court of the State of New South Wales. But that transmutation was effected “subject to the Constitution” (274).

74. However, in my view, the issue in the present case is best resolved by recourse to the proposition that the Constitution itself is rendered, by covering cl 5,

Justice Brennan’s opinion.

Justice Brennan is a Roman Catholic educated at Downlands College Toowoomba, and imbued since childhood with the concept that a priest is always right, and the Pope was infallible. His minority judgment together with Dawson J, in this case reflects the deficiencies of argument put to the High Court by Counsel, which by the Grace of God succeeded, but never submitted, or had accepted that S 108 Constitution acts as a fetter on State Legislative Powers, and S 118 Constitution caught and applies the laws in place in 1900, evidenced and transcribed in the Imperial Acts Application Act 1980 ( Vic) but partially repealed illegally in New South Wales by its Imperial Acts Application Act 1969, and the Supreme Court Act 1970. Brennan J does not mention S 108 Constitution. It says: Every law ( no exceptions) in force in a Colony, which has become or becomes a State, shall ( must) subject to this Constitution, continue to have force in the State, and, the Parliament of the State shall have such powers of alteration, and of repeal in respect of any such laws as the Parliament of the colony had until the colony became a State.

In this respect Brennan J, has got the opinion he expresses wrong, in the bold sections distinguished.

4. The generality of these provisions was restricted in the course of the passage of the Bill through the Parliament. The liability to suffer the consequences of a detention order was limited so that the only person against whom a detention order might be made was the appellant, Gregory Wayne Kable. Section 3 of the Act reads as follows:

5. On 23 February 1995, Levine J issued a detention order for a period of six months in respect of the appellant but Grove J refused on 21 August 1995 to issue a further order. This appeal is brought in respect of the order issued by Levine J. The grounds argued on the appeal do not relate to the appropriateness of the making of the order if Levine J had jurisdiction to make it. The argument challenges the very existence of the Act as a law of the State of New South Wales.

1. Is the Act a Law?
6. This question is to be distinguished from the question whether the Act is beyond the power of the Parliament of New South Wales. This question is whether the instrument that stands on the statute book as the Community Protection Act 1994 has the character of a law. The instrument, enacted in due form and by due process, purports to create a power to make a detention order and it prescribes the procedure by which the order may be made and the consequences of the order when made. True it is that it singles out the appellant as the sole subject of a detention order, but a purported law has never been held to lack the character of a law simply because it affects the liberty or property of only a single individual. Acts of Attainder were nonetheless laws, as Sir Edward Coke accepted, albeit protesting that, in the procedure of imposing the attaint, the high court of Parliament ought to give example of justice to inferior courts (8). The Act may be a law which, by reason of its specificity, is enacted in exercise of a power that is not purely legislative, but it is nonetheless a law. Specificity does not deny the character of law to an enactment that is otherwise within power. Private Acts of Parliament were a familiar form of laws in the 19th Century English Parliament and were not open to question on that account (9). Private Acts have been enacted at times by the Parliaments of this country. The next question is whether the Parliament had power to enact the Act.

2. Was there power under the Constitution of New South Wales to enact the Act?
7. It is submitted that the Act is in substance an exercise of judicial power rather than legislative power. On the assumption that the New South Wales Parliament cannot exercise judicial power or interfere in the judicial process (10), it is submitted that the Act is beyond the powers of that Parliament.

8. There is something to be said for the view that, consistently with s 3, any application made within a short time of the enactment of the Act left the Supreme Court with no discretion. The general provisions of s 5 must yield to the provisions of s 3(1) and (2), so that the Court is commanded to protect the community by making a detention order against the appellant.

9. Assuming, without deciding, that the Act left nothing for the Supreme Court to decide but merely commanded the making of the formal detention order, the appellant submits that the Act is an exercise of judicial power or an interference in the judicial process and, on that account, is beyond the powers of the New South Wales Parliament. The submission is based on the proposition that the doctrine of separation of judicial power, an essential element of the Constitution of the Commonwealth, is part of the constitutional law of the State. That proposition has been rejected by the Supreme Court of New South Wales (11), ( only since 1970) as it has by the Supreme Court of other States in respect of their Constitutions (12).( 1986 in Victoria, 1927 in South Australia, 1991 in Queensland, 2004 in Western Australia) For the reasons stated by Dawson J, I too would hold that that safeguard of liberty is not to be found in the Constitution of New South Wales despite the introduction in 1992 and the entrenchment in 1995 of Pt 9 of the Constitution Act 1902.

10. I am in general agreement also with his Honour’s reasons for holding that, subject to the Commonwealth of Australia Constitution Act 1900 (Imp), the Statute of Westminster Adoption Act 1942 (Cth) and the Australia Act 1986, ( an oxymoron that abolishes Her Majesty’s authority to disallow enactments on the grounds of unconstitutionality, and establishes State Monarchies) the powers of the Parliament of New South Wales are not limited as to subject matter.

11. However, I would add a qualification and a comment to what his Honour has written, neither of which is material to the present case. First, there is the conundrum of the grant of general legislative power conferred by the “peace, order and good government” formula on a Parliament which might legislate itself or its powers out of existence. In my opinion, this conundrum is resolved by ss 106 and 107 of the Commonwealth Constitution. These are the sections which continue to sustain the Constitutions of the States and confirm their respective powers, including the power to amend their own Constitutions (13). As s 107 continues the powers of the States, no power can be annihilated by State legislative action. If Parliament, as the repository of a power, were legislatively to deny itself that power, the denial would be inconsistent with s 107 and would be invalid.

12. Secondly, I would add a further comment to Dawson J’s conclusion that “no non-territorial restraints upon parliamentary supremacy arise from the nature of a power to make laws for peace, order (or welfare), and good government or from the notion that there are fundamental rights which must prevail against the will of the legislature”. If there were any restraints on the exercise of the powers of the Parliament, they would arise from entrenched provisions of the particular State Constitution (14). (Denying the Commonwealth Constitution ) Such restraints would be immune from modification unless the conditions expressed in the entrenching provisions were satisfied. When a submission is made that a particular measure is ultra vires because a restraint on legislative power is implied by an entrenching provision, the implication must clearly appear (15). If the connection between the text and the propounded implication is tenuous or obscure, it would be wrong for a court by declaration to withdraw from public debate the matters to which the submitted restraint applies. If the constitutional text does not clearly support an implication of restraint, the court declaring the restraint is plunged into political controversy in which it is ill-fitted to engage and from which it is hard put to withdraw (16). ( This reflects the Roman Catholic Doctrine that the Pope ( Judge or Priest) s always right, and goes against the Protestant Christian belief that the Queen can be ill advised, and a court, with a jury, can find as fact that this is so).

3. Does Ch III of the Commonwealth Constitution preclude the vesting of jurisdiction under the Act in the Supreme Court of New South Wales?
13. Chapter III of the Constitution of the Commonwealth both limits the repositories of the judicial power of the Commonwealth and, in context, prescribes a separation of the function of the High Court and of other federal courts from the functions of the political branches of government. The separation of functions is derived from the structure of the Constitution and, in particular, from the distribution of legislative power to the Federal Parliament (s 1), of executive power to the Queen for exercise by the Governor-General ( but since 1979, and the High Court of Australia Act 1979 vested in the Chief Executive Officer of the High Court and the committee of the whole of the High Court by S 33 High Court of Australia Act 1979 ). (s 61) and of judicial power to the courts referred to in s 71.

14. In like manner, no functions that are not judicial can be conferred by the Commonwealth Parliament on a State court (17), and thus the separation of State courts from the Legislative and the Executive branches of the Commonwealth Government is secured. But that separation does not purport to effect a separation of the courts of a State or Territory from the Legislature or Executive of the State or Territory. Nor does the Constitution purport to preclude State Parliaments from conferring a non-judicial power on a State court. It would be surprising if it did. Such a provision would have destroyed the State laws investing mining warden’s courts, licensing courts and planning courts - to take only some instances - with extensive administrative powers. (This is totally wrong thinking, as administrative courts were abolished by the Habeas Corpus Act 1640 16 Charles 1 Ch X. and this Act forms part of the matrix of Imperial Laws in which the Constitution sits)

15. However, it is submitted that, as ss 71 and 77(iii) authorise the investing of the judicial power of the Commonwealth in State courts, those courts must be capable of accepting and exercising the federal jurisdiction invested in them and that that capacity is dependent on their not being repositories of non-judicial power the exercise of which is incompatible with the exercise of federal judicial power. It has been accepted constitutional doctrine that, when the Commonwealth invests the judicial power of the Commonwealth in a State court, it must take that court constituted and organised as it is from time to time (18) ( As the majority pointed out the Commonwealth took the courts in 1903, by s 39 (2) Judiciary Act 1903 and as such they cannot be altered by State Legislation.) The autochthonous expedient contained in Ch III of providing for the vesting of federal jurisdiction in State courts left to the Commonwealth Parliament the selection of the courts in which federal jurisdiction should be invested. The submission that a State court cannot be a repository of both State non-judicial power and federal judicial power if the exercise of the former would be incompatible with the exercise of the latter attributes to Ch III a novel operation. On one approach Ch III would limit the power of the Parliament of a State to invest the courts of the State with incompatible non-judicial powers. On another approach, Ch III would limit the power of the federal Parliament to invest some State courts with federal jurisdiction. And on a third approach, the investing by the Commonwealth Parliament of federal jurisdiction in a State court would preclude the State Parliament from investing an incompatible non-judicial power in that State court. ( Absolutely correct)

16. In my opinion, Ch III does not operate in any of those ways. The test of incompatibility advanced by the submission is taken from the majority judgment in Grollo v Palmer (19), a case which was not concerned with the jurisdiction or powers of a court but with the powers that might be conferred on individuals - personae designatae - who were judges of a Ch III Court. The incompatibility qualification applied to the persona designata doctrine has no counterpart in the context of possible limitations on the power of a State Parliament to invest courts of the State with non-judicial powers or the power of the Commonwealth Parliament to select whichever State courts it sees fit to invest with federal judicial power. No case has hitherto considered whether Ch III has any of the postulated operations. The absence of such a case indicates that the proposition has never before been advanced. Of course, novelty is not necessarily a badge of error but a suggestion that the power to invest State courts with federal judicial power might be limited or that the power of a State to invest the State’s courts with non-judicial power might be limited would surely have provoked debate in the Constitutional Conventions. Yet they are as silent on the subject as the law reports. There is no textual or structural foundation for the submission. ( The Imperial Acts Application Act 1980 ( Vic) accepted by all lawyers at the Conventions, contain the separation of powers entrenched in the UK by the Coronation Oath 1688 ( Imp))

DAWSON J.

3. On 2 December 1994, the New South Wales Parliament passed the Community Protection Act 1994 (NSW) (”the Act“) which conferred jurisdiction upon the Supreme Court of New South Wales to make an order for the preventive detention of the appellant.

7. Shortly after the Act came into force, the Director of Public Prosecutions commenced proceedings against the appellant in the Supreme Court of New South Wales before Spender AJ. On 19 December 1994, his Honour made an order under s 17(1)(c) that the appellant be psychiatrically examined. On 30 December 1994, Hunter J made an interim detention order pursuant to s 7 of the Act. On 23 February 1995, Levine J ordered pursuant to s 5 that the appellant be detained in custody for a period of six months. An appeal was dismissed by the Court of Appeal on 9 May 1995 (34). It is from that decision that this appeal is brought.

8. The appellant applied unsuccessfully on three occasions for revocation of the order made against him by Levine J. However, on 21 August 1995 (the day before the order of Levine J was due to expire), Grove J refused an application by the Director of Public Prosecutions for a second preventive detention order against the appellant who has now been released from custody. Nevertheless, the appellant remains liable at any time to be the subject of a further application that he be detained in custody.

9. He contended first that the Act is invalid because it infringes common law rights which are so fundamental that they cannot be overturned by any legislature. Next, he said that the Act is beyond the power of the New South Wales Parliament to make laws for the peace, welfare, and good government of New South Wales pursuant to s 5 of the Constitution Act 1902 (NSW) because it is not a law within the meaning of that section. He then argued that the New South Wales Constitution embodies a separation of powers which the Act infringes. In addition he said that the Act is inconsistent with the requirements of Ch III of the Commonwealth Constitution. An argument based upon a constitutional requirement of equality under the law and before the courts was abandoned before us.

Parliamentary supremacy and fundamental rights.

10. The New South Wales Parliament derives its legislative power from s 5 of the Constitution Act 1902 which provides that “(t)he Legislature shall, subject to the provisions of the Commonwealth of Australia Constitution Act, have power to make laws for the peace, welfare, and good government of New South Wales in all cases whatsoever …”. It is unnecessary at this point to trace the history which lies behind this provision (35) because it is firmly established that its words confer a plenary power “and it was so recognised, even in an era when emphasis was given to the character of colonial legislatures as subordinate law-making bodies” (36).
Comment: This is where His Honour fell into error. He should have looked at Section 15AB Acts Interpretation Act 1901 ( Cth) and used extrinsic evidence to establish whether in fact plenary power was vested in the Parliament in New South Wales.

That was clear before the passage of the Australia Acts (37) but it is put beyond question by s 2 of those Acts. The legislative power of the New South Wales legislature is no less than the legislative power of the Parliament of the United Kingdom within the scope of the grant of its power. As s 5 of the Constitution Act 1902 itself recognises, the power is subject to the Commonwealth of Australia Constitution Act 1900 (Imp). Section 106 of the Commonwealth Constitution makes it clear that the Constitution of each State is subject to the Commonwealth Constitution, and under s 5 of the Australia Acts the powers of the States do not extend to legislation affecting the Commonwealth Constitution, the Commonwealth of Australia Constitution Act, the Statute of Westminster 1931 (Imp) or the Australia Acts themselves. And under s 6 of the Australia Acts the States are bound to observe any manner and form requirements for laws respecting the constitution, powers or procedures of their parliaments. In addition, the words “peace, welfare, and good government of New South Wales” may be the source of whatever territorial restrictions upon the State’s legislative powers are made necessary by the federal structure (38).

11. But the important thing is that for present purposes the words “peace, welfare, and good government” are not words of limitation. As this Court observed in Union Steamship Co of Australia Pty Ltd v King (39):

Another error of logic on the part of Dawson J. Prior to 1900, as a question of fact in New South Wales whether an Act was good government or bad, was a question of fact, and no Judge was authorized to determine that question, by reference to the provisions of the Common Law Procedure Act 1899, which was purportedly repealed, but held “Ultra Vires” by the majority. Only a jury of electors was qualified to examine an Act critically in 1900. Parliament was NOT SUPREME.

“They did not confer on the courts of a colony, just as they

do not confer on the courts of a State, jurisdiction to strike down legislation on the ground that, in the opinion of a court, the legislation does not promote or secure the peace, order and good government of the colony (40). Just as the courts of the United Kingdom cannot invalidate laws made by the Parliament of the United Kingdom on the ground that they do not secure the welfare and the public interest, so the exercise of its legislative power by the Parliament of New South Wales is not susceptible to judicial review on that score.”

Wrong again: In The Queen V Tolson [Crown Case Reserved] 1889 QBD, 13 Justices of the Queens bench, decided by 8-5, that Statute Law was not absolute.

Those words were prompted by remarks of Cooke J in the New Zealand Court of Appeal to the effect that “some common law rights may go so deep that even Parliament cannot be accepted by the Courts to have destroyed them” (46). As this Court observed, that view was rejected by Lord Reid in Pickin v British Railways Board (47). (1974) AC 765 at 782. There he said:

By 1974, the English had gone bad, and their courts were no longer constituted as they were in 1900, in either England or Australia.

“The idea that a court is entitled to disregard a provision in an Act of Parliament on any ground must seem strange and startling to anyone with any knowledge of the history and law of our constitution …

I must make it plain that there has been no attempt to question the general supremacy of Parliament. In earlier times many learned lawyers seem to have believed that an Act of Parliament could be disregarded in so far as it was contrary to the law of God or the law of nature or natural justice, but since the supremacy of Parliament was finally demonstrated by the Revolution of 1688 any such idea has become obsolete.”

Dawson J has his history wrong: In 1688, the Sovereign, by the Coronation Oath 1688 ( Imp) to which he is privy by reference to his oath of allegiance, was made subject to the Holy Bible, and the Divine Right of Kings abolished. The thinking of Dawson J just replaces a Tyrant King, with a tyrant Prime Minister. See Zimbabwe.

12. Lord Reid’s reference to earlier times would appear to hark back to the view expressed by Coke CJ in Bonham’s Case (48). He said: “And it appears in our books, that in many cases, the common law will … control Acts of Parliament, and sometimes adjudge them to be utterly void: for when an Act of Parliament is against common right and reason, or repugnant, or impossible to be performed, the common law will control it, and adjudge such Act to be void”.

13. However, Coke was not alone and there were other early expressions of opinion which appear to suggest that courts might invalidate Acts of Parliament which conflict with natural law or natural equity (50). But they are of academic or historical interest only for such views did not survive the Revolution of 1688 or, at the least, did not survive for very long after it. Judicial pronouncements confirming the supremacy of parliament are rare but their scarcity is testimony to the complete acceptance by the courts that an Act of Parliament is binding upon them and cannot be questioned by reference to principles of a more fundamental kind. Indeed, it is a principle of the common law itself “that a court may not question the validity of a statute but, once having construed it, must give effect to it according to its tenor” (51).

Comment: Sadly the views of this Judge, do not accord with those of Murphy J, in Metwally, which stated that there is a hierarchy of laws, with the Constitution at its peak, and that Parliament ( any Parliament) cannot make unconstitutional laws at all.

It may be observed that a legislature wishing to enact a statute ordering that all blue-eyed babies be killed would hardly be perturbed by a principle of law which purported to deny it that power. Whether one speaks as Salmond does of “ultimate legal principles” (52), or as Kelsen does of a grundnorm (53), or as Hart does of the “ultimate rule of recognition” (54), there can be no doubt that parliamentary supremacy is a basic principle of the legal system which has been inherited in this country from the United Kingdom.

Comment: This is totally wrong: In 1828, in the Australian Courts Act 1828 the principal of republican government, not monarchial government, established between 1600 and 1688 in the United Kingdom came to Australia and remains here. Republican government demands jury trials. Monarchial Government vests judgmental powers in the Monarch’s surrogates. The word Judge is not present in Ch III Constitution.

The power to make laws

24. The Constitution Act 1902 may be contrasted with the provisions of the Commonwealth Constitution, in particular ss 1, 61 and 71. Those sections respectively vest the legislative power of the Commonwealth in the Parliament, the executive power in the Executive and the judicial power in the Judicature. Section 1 appears at the commencement of Ch 1, which is headed “The Parliament”. Section 61 appears at the commencement of Ch II which is headed “The Executive Government”. Section 71 appears at the commencement of Ch III which is headed “The Judicature”. In R v Kirby; Ex parte Boilermakers’ Society of Australia (76) this Court held that this pattern could not be treated as a “mere draftsman’s arrangement” or as “meaningless and of no legal consequence”. It is because the judicial power of the Commonwealth is vested by Ch III in those courts which it identifies and is dealt with nowhere else (save for s 51(xxxix)) that this Court was compelled to conclude that no functions other than judicial functions may be reposed in the federal judicature and that no powers which are foreign to the judicial power may be attached to courts created by or under that chapter. Not only that, but it was recognised that the position and constitution of the federal judicature was bound up in the federal structure established by the Constitution, “for upon the judicature rested the ultimate responsibility for the maintenance and enforcement of the boundaries within which governmental power might be exercised” (77).

COMMENT: Correct statement of the law but not followed by Dawson J.

Chapter III of the Commonwealth Constitution
29. Under s 71 of the Commonwealth Constitution, which is the first section of Ch III, the judicial power of the Commonwealth is vested in the High Court “and in such other federal courts as the Parliament creates, and in such other courts as it invests with federal jurisdiction”. Whilst the nature of the judicial power so vested is not stated, the matters over which it may be exercised are set out with some particularity in ss 75 and 76. Under s 77(iii) the Parliament may make laws “(i)nvesting any court of a State with federal jurisdiction”. In s 39(2) of the Judiciary Act 1903 (Cth) Parliament has exercised that power by conferring federal jurisdiction (with certain exceptions and qualifications) upon “(t)he several Courts of the States” in the matters specified in ss 75 and 76.

That was in 1903: A unified Commonwealth resulted. One Queen, One God, One Sovereignty, and one Judicial Power of the Commonwealth.

Considerations such as those were in the mind of Griffith CJ when he said in Federated Sawmill, Timberyard and General Woodworkers’ Employes’ Association (Adelaide Branch) v Alexander (90) that “when the Federal Parliament confers a new jurisdiction upon an existing State Court it takes the Court as it finds it, with all its limitations as to jurisdiction, unless otherwise expressly declared”. It did this in 1903, and as the Courts were in 1903, they must remain.

34. And yet the appellant’s argument, as I understand it, is that the Commonwealth Constitution, and Ch III in particular, precludes a State court, as the potential or actual repository of federal jurisdiction, from having functions conferred upon it by the State legislature which are incompatible with Ch III. Either that or, so the appellant’s argument goes, a law, such as s 39(2) of the Judiciary Act 1903 (Cth), which invests a State court with federal jurisdiction, is inconsistent with a State law conferring a function upon that court which is incompatible with Ch III and must, for that reason, prevail over the State law under s 109 of the Constitution.

36. His Honour there observed that the exercise of federal jurisdiction did not call for a curial organisation different in kind from that established for the exercise of State jurisdiction (95). IN THIS SITUATION THERE IS EVERY REASON FOR SUPPOSING THAT THE FRAMERS OF THE CONSTITUTION INTENDED TO ARM THE PARLIAMENT OF THE COMMONWEALTH WITH A POWER TO INVEST FEDERAL JURISDICTION IN A STATE COURT AS IT HAPPENED TO BE ORGANISED UNDER STATE LAW FROM TIME TO TIME. Although the Commonwealth Parliament has no power to alter the structure or organisation of State courts, its freedom of action is completely preserved. It has the choice of investing State courts with federal jurisdiction or of establishing appropriate federal courts.” (emphasis added)

37.. There is no one court system in Australia (96). The States are distinct jurisdictions and the enactments of each of their legislatures are confined in their operation so that in other States their recognition is governed by common law principles and such requirements as flow from the full faith and credit required by s 118 of the Constitution.

COMMENT: Section 118 Constitution can only give faith to laws made before 1900, or consistent with the Constitution of the Commonwealth.

Federal law, of course, is binding on all courts whether exercising federal jurisdiction or not (97). The system is a federal system and, whilst the framers of the Constitution might have established a judicial system which was neither State nor federal but simply Australian, they did not do so (98).

That was not so: They did not need to do so: the Australian Courts Act 1828 unrepealed by the Australia Act 1986 made all courts Australian Courts and any New South Wales Court, that is not an Australian Court is not a court in Australia.

41. But the judicial power of which the majority were there speaking was the judicial power exercised by a federal court created by or under Ch III - a Ch III court. The nature of that judicial power is, as was acknowledged in Grollo, very much determined by the separation of powers which the Constitution requires to be observed in relation to such a court. As the Privy Council observed in the Boilermakers’ Case (102), the separation of powers is, in a federal system, a guarantee of the absolute independence of the judiciary which is “the bulwark of the constitution against encroachment whether by the legislature or by the executive” (103).