The Presumption of Constitutionality
| Date | 01 December 1983 |
| DOI | 10.1177/0067205X8301300401 |
| Author | Henry Burmester |
| Published date | 01 December 1983 |
| Subject Matter | Article |
THE PRESUMPTION OF CONSTITUTIONALITY
BY
HENRY
BURMESTER*
The presumption
of
constitutionality has been frequently invoked
in recent judgments
of
Murphy J in the High Court. The article
examines the use
of
the presumption in the United States and Canada.
It
then considers the way in which the presumption has been applied in
Australia and the justification given for it.
It
is suggested that although
the presumption does not have a clearly recognised place in Australian
constitutional theory, the presumption is important and it should be
given much greater prominence. For this to happen will require changes
in judicial attitude.
It
also requires Parliament to reassert its role in the
determination
of
constitutional questions.
In
several recent High Court judgments,
Mr
Justice Murphy has relied
on
a presumption of constitutionality as a basis upon which to uphold the
constitutional validity of certain legislation. These cases include: Queensland
v Commonwealth/ where the representation of the Territories in the Senate
was upheld for a second time; Attorney-General
of
WA ex rei Ansett
Transport Industries (Operations) Pty
Ltd
v Australian National Airlines
Commission2 where Murphy J (dissenting) upheld s 19B of the Australian
National Airlines
Act
1945
(Cth)
authorizing the Commission to operate
intrastate services in certain circumstances; Gazzo v Comptroller
of
Stamps
(Vic);
ex
parte Attorney-General
(Vic)~
where Murphy J (again dissenting)
upheld s
90
of the Family Law Act 1975
(Cth)
which granted exemption
from State stamp duty on property transactions arising out of Family Court
orders.
No
other judges of the High Court in recent time have explicitly
relied
on
the presumption.
In
fact, Murphy J has accused some of his
colleagues of ignoring the presumption and replacing
it
in practice with
"a
presumption of invalidity" .4 The presumption needs to be distinguished from
other devices used by the judiciary in order to avoid passing
on
the consti-
tutionality
of
legislation. These devices include "reading down" of the
statute, avoiding hypothetical questions and the "political question" doctrine.
The presumption only becomes relevant once the court decides to pronounce
on
the validity of legislation.
In
this article
it
is
proposed to outline the
historical background to the development of the presumption, particularly
in the United States, and to assess its relevance to the Australian consti-
tutional system.
It
will be argued that the presumption can serve a useful
role, but that its value is at present diminished by the attitude of both the
High Court and the legislature.
* BA, LLB
(ANU);
LLM (Virg); Lecturer
in
Law, Australian National University.
The author acknowledges the helpful comments
of
his colleagues Professor L Zines
and Mr G Lindell on earlier drafts.
1 (1977)
16
ALR 487.
2 (1976) 138
CLR
492.
3 (1981)
38
ALR
25.
See
case note (1982)
13
FL
Rev 191.
4Jbid
45.
277
278 Federal Law Review
[VOLUME
13
APPLICATION OF THE PRESUMPTION IN
THE
UNITED
STATES AND CANADA
Judicial review of the constitutionality of legislation has been a constant
subject of controversy in the United States. The fundamental question of
constitutional law has essentially been the justification for judicial review.
In an attempt to avoid the fundamental question,
.the
Supreme Court
throughout its history has, in many instances, been prepared to defer to the
legislature and avoid, if possible, a direct conflict with it
by
upholding the
validity of a statute. A number of "maxims of prudence" or "concepts
of restraint" have been devised. Among these
is
the presumption of
constitutionality.
5
One of the principal reasons given for this deference
is
that "the legis-
lature has access to facts,
as
well
as
advice, to an extent that the court
cannot equal".6 Another commentator, Brest, however, sees the deference
as separate from, and not necessarily based on, any superior fact finding
ability of the legislature. Rather, it reflects the need for a non-elected arm
of government to act cautiously in the face of determined action by the
legislative branch.7 This would also seem to be the basis for one of the
most powerful statements in support of judicial restraint and deference to
the legislature made by J B Thayer in his seminal article,, "The Origin and
Scope of the American Doctrine of Constitutional Law" in 1893.8
For
him,
the legislature had primary responsibility for constitutional determination;
the judicial function was merely that of "fixing the outside border of reason-
able legislative action" .9 Only if the legislative judgment was manifestly
wrong or unsupported should the court intervene, in the same way that
courts are reluctant to overturn decisions
by
juries. Certainly judges have
used different reasons at different times to justify their use of the presumption.
A clear statement of the presumption appears in United States v Five
Gambling Devices:l0
This Court does and should accord a strong presumption of consti-
tutionality to Acts of Congress. This
is
not a mere polite gesture.
It
is
a deference due to deliberate judgment by constitutional majorities of
the two Houses of Congress that an Act
is
within their delegated power
or
is
necessary and proper to execution of that power. The rational
and practical force of the presumption is at its maximum only when it
appears that the precise point in issue here has been considered by
Congress and has been explicitly and deliberately resolved.
The presumption has featured in judgments of United States courts since
the earliest days. Even Marshall CJ who in Marbury v Madison
11
delivered
the classic statement in support of judicial review, made statements in other
5 Congressional Research Service, The Constitution
of
the United States
of
America,
Analysis and Interpretation (1973) 681.
6 C J Antieau, Modern Constitutional Law (1969) II, 691,
see
generally 691-694.
7 P Brest, Processes
of
Constitutional Decisionmaking Cases and Materials (Little
Brown, 1975) 1008-1010.
8 '(1893) 7 Harvard Law Review 129.
9fbid
148.
10
(1953) 346 us 441, 449.
11
(1803) 5 us 137.
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