Constitutional Influences on State and Territory Lawmaking: An Empirical Analysis
| Author | Anna Olijnyk,Gabrielle Appleby |
| Published date | 01 June 2018 |
| Date | 01 June 2018 |
| DOI | http://doi.org/10.1177/0067205X1804600203 |
| Subject Matter | Article |
CONSTITUTIONAL INFLUENCES ON STATE AND
TERRITORY LAWMAKING: AN EMPIRICAL ANALYSIS
Anna Olijnyk* and Gabrielle Appleby**
ABSTRACT
This article focuses on an under-studied aspect of the constraints emerging from ch III
of the Australian Constitution: the effect of those constraints on law- and policy-making
within the executive. Drawing on interviews with key actors in state and territory
lawmaking, this article uses three case studies to examine the way in which ch III
constraints have influenced the development of law and polic y. The actions of
governments in each case study are evaluated against a normative model of
constitutional deliberation by the executive. The article concludes by identifying the
legal, political and personal factors that influence the way in which state and territory
executives engage with constitutional issues.
I INTRODUCTION
Over the last decade, the High Court has delivered a series of complex, technical and
sometimes surprising decisions concerning the implications of ch III of the Constitution
for state and territory courts.
1
There is extensive scholarship on the doctrinal aspects of
these decisions: the High Court’s reasoning, its consistency with earlier cases, and
predictions for the future of ch III principles.
2
Thus far, academic attention has generally
* Lecturer, Adelaide Law School, University of Adelaide. The research in this article is
supported by Australian Research Council Discovery Project 140101218, ‘Law, Order and
Federalism’.
** Associate Professor, UNSW Law; Co-Director, The Judiciary Project, Gilbert + Tobin Centre
of Public Law.
1
See, eg, International Finance Trust Co Ltd v New South Wales Crime Commission (2009) 240 CLR
319; Kirk v Industrial Court (NSW) (2010) 239 CLR 531 (‘Kirk’); Momcilovic v The Queen (2011)
245 CLR 1; South Australia v Totani (2010) 242 CLR 1 (‘Totani’); Wainohu v New South Wales
(2011) 243 CLR 181 (‘Wainohu’); Condon v Pompano Pty Ltd (2013) 252 CLR 38; Kuczborski v
Queensland (2014) 254 CLR 51.
2
See, eg, James Stellios, The Federal Judicature (LexisNexis Butterworths, 2010); Gabrielle
Appleby and John M Williams, ‘A New Coat of Paint: Law and Order and the Refurbishment
of Kable’ (2012) 40 Federal Law Review 1; Suri Ratnapala and Jonathan Crowe, ‘Broadening the
Reach of Chapter III: The Institutional Integrity of State Courts and the Constitutional Limits
of State Legislative Power’ (2012) 36 Melbourne University Law Review 175; Oscar I Roos,
‘Accepted Doctrine at the Time of Federation and Kirk v Industrial Court of New South Wales’
(2013) 35 Sydney Law Review 781; Sarah Murray, The Remaking of the Courts: Less-Adversarial
Practice and the Constitutional Role of the Judiciary in Australia (Federation Press, 2014); Helen
232 Federal Law Review Volume 46
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focused on what happens in the High Court.
3
But to study the Court’s decisions in
isolation is to miss their full sig nificance. The Court’s jurisprudence impacts the other
branches of government, guiding―and, we argue, sometimes distorting―their own
constitutional responsib ilities. In this article, we provide an empirically based
examination of the effect of the High Court’s ch III jurisprudence on the way in which
state and territory governments develop legislation and policy.
Of course, one reason for the dearth of scholarship on this issue is that governments
create policy and draft legislation behind closed doors. Much of the i mpact of
constitutional principles on executi ve government is, therefore, i nvisible and
inscrutable. This article uses qualitative interview resea rch to reveal dimensions of the
lawmaking process that are usually unseen, and to discover how ch III constraints affect
the law and policy that ultimately emerge into the public domain. Our research goes
beyond what is ordinarily available to the public regarding the development of policy
and law. We have interviewed key actors (n=48) in the development of government law
and policy, asking them their views of the High Court and its jurisprudence, and its
relevance to them and their roles. These participants include current and former
Attorneys-General, Solicitors-General, government lawyers, parliamentary counsel and
policy advisors.
4
In this article, we describe and probe the perceptions of these actors to
reveal insights into the ‘social practice’ of law and policy making.
5
Some participa nts
agreed to be identified in this article. Those who requested anonymity are referred to by
a pseudonym including a randomly selected letter (eg ‘Participant G’).
We begin this article in Part II by explaining our conception of the proper role of
constitutional constraints in the development of law and policy. Where the
constitutionality of a proposed measure is uncertain, we argue constitutional pr inciples
should be a relevant, but not necessarily determinativ e, factor in a holistic deliberative
process. In Parts III, IV and V we move from theory to practice, using three case studies
to examine how constitutional constraints have affected state and territory law - and
policy-making in respect of anti-organised crime, generalist tribunals, and specialist
Irving, ‘State Jurisdictional Residue: What Remains to a Sta te Court when its Chapter III
Functions are Exhausted?’ (2014) 42 Federal Law Review 121; Rebecca Ananian-Welsh,
‘Kuczborski v Queensland and the Scope of the Kable Doctrine’ (2015) 34 University of Queensland
Law Journal 47; Fiona Wheeler, ‘Constitutional Limits on Extra-Judicial Activity by State
Judges: Wainohu and Conundrums of Incompatibility’ (2015) 37 Sydney Law Review 301.
3
For the exceptions, see our own previous work, including Gabrielle Appleby and Anna
Olijnyk, ‘Parliamentary Deliberation on Constitutional Limits in the Legislative Process’
(2017) 40 University of New South Wales Law Journal 976; Gabrielle Appleby and Anna Olijnyk,
‘Constitutional Deliberation in the Legislative Process’ in Ron Levy et al (eds), The Cambridge
Handbook of Deliberative Constitutionalism (Cambridge University Press, 2018); Gabrielle
Appleby, ‘Institutional Costs of Judicial Independence’ in Rebecca Ananian-Welsh et al (eds),
Judicial Independence in Australia: Contemporary Challenges, Future Directions (Federation Press,
2016) 141; Gabrielle Appleby and Anna Olijnyk, ‘The Impact of Uncertain Constitutional
Norms on Government Policy: Tribunal Design after Kirk’ (2015) 26 Public Law Review 91;
Gabrielle Appleby and Adam Webster, ‘Parliament’s Role in Cons titutional Interpretation’
(2013) 37 Melbourne University Law Review 255.
4
Further details of the methodology are provided in the Appendix to this article.
5
Bent Flyvbjerg, Making Social Science Matter: Why Social Inquiry Fails and How It Can Succeed
Again (Cambridge University Press, 2001) 2. See also Brendon Murphy and Jeffrey McGee,
‘Phronetic Legal Inquiry: An Effective Design for Law and Society Research?’ (2015) 24
Griffith Law Review 288.
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