A Brief History of the Judicial Review of Legislation under the Australian Constitution
| Author | Matthew Stubbs |
| DOI | 10.22145/flr.40.2.5 |
| Published date | 01 June 2012 |
| Date | 01 June 2012 |
| Subject Matter | Article |
LEGISLATION UNDER THE AUSTRALIAN CONSTITUTION
Matthew Stubbs
ABSTRACT
Although lacking an express mandate, since Federation courts have declared
legislation ultra vires if they find it contrary to the Australian Constitution. This article
undertakes an historical examination in four parts, to determine whether this judicial
review of legislation is legitimate.
First, objections to the institution are identified. Second, the justifications for
judicial review of legislation developed in the United States, and expressed in the
seminal 1803 decision of Marbury v Madison, are examined. Having identified the twin
justifications as the supremacy of the Constitution and the primacy of the judiciary in
its interpretation, the third section analyses Australian Federation records to see if
these justifications are supported, and whether they rebut the objections raised.
Finally, the persistence of these justifications after Federation is demonstrated.
It is concluded that evidence of the supremacy of the Constitution, and the primacy
of the judiciary in its interpretation, is sufficient to justify judicial review of legislation
under the Australian Constitution.
I
INTRODUCTION
Do Australian courts legitimately possess the power to find legislation invalid on the
basis that it conflicts with the Australian Constitution? The Constitution, which came into
effect in 1901, contains no express provision for judicial review of legislation.1
Nonetheless, since Federation, Australian courts have reviewed the constitutionality of
Commonwealth and State laws and declared them ultra vires if they are contrary to the
Constitution.
Very little academic writing in Australia has considered the justifications for
judicial review of legislation under the Australian Constitution.2 It might be thought
that there is no need to do so — after all, judicial review of legislation is now a settled
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Lecturer, Adelaide Law School, University of Adelaide.
1
George Williams, 'Judicial Review' in Tony Blackshield, Michael Coper and George
Williams (eds), Oxford Companion to the High Court of Australia (Oxford University Press,
2002) 376, 377.
2
See, eg, ibid; Geoffrey Lindell, 'Duty to Exercise Judicial Review' in Leslie Zines (ed),
Commentaries on the Australian Constitution (Butterworths, 1977) 150, 186.
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institution.3 Nonetheless, given the extraordinary nature of the power of judicial
review in a democracy (which otherwise trusts to the wisdom of the elected
representatives of the people),4 that institution should be capable of being
demonstrated to be legitimate. Moreover, to say only that judicial review is accepted
begs the question of why it is accepted.
This article examines the bases for judicial review of legislation under the Australian
Constitution in order to determine whether this power, frequently exercised by
Australian courts, is legitimately held. The focus is historical — because judicial review
of legislation has been exercised since Federation, its justifications are sought primarily
in material which elucidates relevant understandings at the time the Australian
Constitution entered into force. In the first section, the objections to judicial review of
legislation under the Australian Constitution are identified. The second section looks to
the United States, analysing both the seminal 1803 decision in Marbury v Madison5 and
earlier relevant statements, to identify the justifications for judicial review of legislation
advanced in America. In the third section, the Australian Federation records are
investigated to locate evidence of the acceptance of these American justifications for
judicial review of legislation. In the fourth section, judicial decisions under the
Australian Constitution are scrutinised to determine what justifications for judicial
review of legislation have in fact been relied upon by Australian courts.
This article traces the justifications for judicial review of legislation, beginning with
early American writings and their reflection in Marbury v Madison, and continuing
through the Australian Federation records into relevant Australian judicial decisions. It
will be shown that the same justifications are evidenced in each context. Moreover, it
will be demonstrated that these justifications are sufficient, and therefore that judicial
review of legislation is a legitimate institution under the Australian Constitution.
II
A PROBLEM OF JUSTIFICATION
Two main objections to the judicial review of legislation under the Australian
Constitution have been raised. The first was made by the Earl of Halsbury, delivering
the advice of the Judicial Committee of the Privy Council in Webb v Outtrim (1907).6
This decision remains the only judicial disavowal of judicial review of legislation
under the Australian Constitution. In Webb v Outtrim, the Privy Council did not accept
that legislation (in this case, of the Victorian Parliament) could be held invalid for
conflicting with the Australian Constitution:
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3
Although the abandonment of judicial review of legislation after a century of that practice
under the Australian Constitution is unlikely, this does not mean of itself that the practice is
constitutionally legitimate (although it has been suggested that judicial review might now
be justified on the basis of tacit acquiescence: P H Lane, The Australian Federal System (Law
Book, 1972) 913). This paper provides an assessment of the justifications for judicial review
of legislation, allowing a determination as to its legitimacy rather than a mere acceptance of
its usage.
4
Thus, it has been observed that: 'judicial review represents an attempt by the American
Democracy to cover its bet': Edward S Corwin, 'Book Review' (1942) 56 Harvard Law Review
484, 487.
5
5 US (1 Cranch) 137 (1803).
6
4 CLR 356.
2012
Judicial Review of Legislation under the Australian Constitution
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Every Act of the Victorian Council and Assembly … when it is assented to it becomes an
Act of Parliament as much as any Imperial Act … If indeed it were repugnant to the
provisions of any Act of Parliament extending to the Colony it might be inoperative to
the extent of its repugnance (see The Colonial Validity Act 1865), but, with this exception,
no authority exists by which its validity can be questioned or impeached. The American
Union, on the other hand, has erected a tribunal which possesses jurisdiction to annul a
Statute upon the ground that it is unconstitutional. But in the British Constitution, though
sometimes the phrase "unconstitutional" is used to describe a Statute which, though
within the legal power of the legislature to enact, is contrary to the tone and spirit of our
institutions, and to condemn the statesmanship which has advised the enactment of such
a law, still, notwithstanding such condemnation, the Statute in question is the law and
must be obeyed. It is obvious that there is no such analogy between the two systems of
jurisprudence as the learned Chief Justice suggests.7
According to this statement by the Privy Council, there could be no judicial review of
legislation under the Australian Constitution because it is an American institution
foreign to Australia's British legal heritage.
Despite being a decision of the Privy Council, Webb v Outtrim has never been
followed on this point.8 However, although the decision has been widely condemned,
there has been little comprehensive analysis of why it was wrong. Thus, Sir Gerard
Brennan has stated that it 'manifested a want of understanding of the nature of the
Constitution',9 without elaborating on why the decision was erroneous. This paper
undertakes to provide such an analysis.
The second objection to judicial review of legislation under the Australian
Constitution has been raised more recently by James Thomson, whose concern relates to
what he regards as a lack of support for judicial review of legislation in the historical
record:
Attempts to provide a basis for judicial review in the Constitution by postulating
implications from the text and a conglomeration of provisions are endeavours to rest a
prodigious power on a slender reed.10
Thomson's supporting arguments will be addressed in more detail below. For now,
it is sufficient to state how this historical objection is to be refuted. The chief premise of
Thomson's argument is that the Framers failed 'to identify any textual foundation for
judicial review' in the provisions of the Australian Constitution.11 The correctness of this
conclusion will be challenged through the presentation of further historical evidence
below.
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7
Ibid 358–9.
8
For the High Court's treatment of the decision, see below at 24.
9
Gerard Brennan, 'The Privy Council and the Constitution' in H P Lee and George
Winterton (eds), Australian Constitutional Landmarks (Cambridge University Press, 2003)
312, 315. Similarly: 'its decision was...
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