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The Momcilovic Question: Does the Rule of Law Limit the Capacity of the New South Wales Legislature?

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The Momcilovic Question: Does the Rule of Law Limit the Capacity of the New South Wales Legislature? THE MOMCILOVIC QUESTION: DOES THE RULE OF LAW LIMIT THE CAPACITY OF THE NEW SOUTH WALES LEGISLATURE? MARTIN ROLAND HILL SYDNEY LAW SCHOOL THE UNIVERSITY OF SYDNEY A THESIS SUBMITTED TO FULFILL REQUIREMENTS FOR THE DEGREE OF MASTER OF LAWS ABSTRACT This thesis seeks to ascertain whether the rule of law limits the legislative power of State legislatures (a question posted in Momcilovic v The Queen (2011) 245 CLR 1). It argues that the rule of law, understood as a legal principle, is not presently recognised as a constraint on the capacity of the New South Wales Legislature. It further argues that it is unlikely that the rule of law will be recognised as such a constraint. This thesis starts with consideration of the concept of the rule of law. It surveys conceptions of the rule of law that have informed Australian jurists and conceptions advanced by those jurists. It does so to show how theoretical conceptions have informed judicial consideration of the rule of law. It also surveys the aspects and requirements of the rule of law that have been recognised by the High Court of Australia. It demonstrates that those aspects correspond to the theoretical conceptions. It also distinguishes those aspects and requirements connected to legality from other identified aspects and requirements. This thesis then shows that the rule of law has not been recognised as a constraint on the power conferred on the New South Wales Legislature by the Constitution Act 1902 (NSW). It examines the constraints imposed by the Constitution Act 1902 and the Commonwealth of Australia Constitution. In light of the conclusion that the rule of law is not a recognised constraint, this thesis assesses whether the rule of law might be recognised as such a constraint. It evaluates the possibility that the Commonwealth Constitution might provide a basis for the imposition of the rule of law. To do so, it considers Justice Dixon’s acknowledgement, in Australian Communist Party v Commonwealth (1951) 83 CLR 1, that the rule of law is a traditional conception assumed by the Commonwealth Constitution. It also examines the relationship between the rule of law and Chapter III of the Commonwealth Constitution and the implications that relationship might have for State legislatures. It shows that any constraint derived from Chapter III of the Comm onwealth Constitution is unlikely to extend beyond securing the legality of governmental action. This thesis also assesses whether the common law is capable of imposing the rule of law as a constraint on legislative capacity. It shows that such a constraint will be weak in the face of considered action by a State legislature. Ultimately, this thesis argues that the rule of law is only likely to be recognised as a constraint when a court is confronted with an extreme law. i ii ACKNOWLEDGEMENTS I would like to commence by thanking my friend Dr Samuel Douglas for the guidance that he has provided during my studies. I would like to thank my colleagues at the Crown Solicitor’s Office. Several – you know who you are – hav e, ov er the past couple of years, endured discussions concerning the content (and progress) of this thesis. Linda Fong Peng and Anne Heritage graciously answered my requests for obscure books, papers, and unreported judgments from the New South Wales Law Courts Library. I would like to thank my supervisors Professor Anne Twomey and Professor Helen Irving. This thesis is stronger for their comments. I would like to conclude by thanking my family. Stephen, Mary Ann, and Amy Hill have provided considerable support during my studies. My dearest Kerry By rnes has been exceedingly patient while I have researched and written what follows. Without her tolerance, it would not have been completed. MRH. iii iv STATEMENT OF ORIGINALITY This is to certify that, to the best of my knowledge, the content of this thesis is my own work. This thesis has not been submitted for any degree or other purposes. I certify that the intellectual content of this thesis is the product of my own work and that all the assistance received in preparing this thesis and sources have been acknowledged. Martin Roland Hill BA (HONS) LLB(HONS) Sydney, Australia 4 December 2017 v vi ‘But what does the rule of law require?’ — Thomas v Mowbray (2007) 233 CLR 307, 342 (Gummow and Crennan JJ) vii viii TABLE OF CONTENTS Abstract i Acknowledgements iii Statement of Originality v Table of Contents ix Currency xiii Chapter 1 The Momcilovic Question 1 I The Question 1 II Answering the Momcilovic question 3 III Methodological and Terminological Notes 5 A Choice of Jurisdiction 5 B References to Legislatures and Constitutions 6 Chapter 2 What is the Rule of Law? 7 I The Rule of Law as a Political Ideal 8 II Dicey , Hay ek, Bingham 10 A Dicey’s Conception 11 1 The First Sense of the Rule of Law: Legality 11 2 The Second Sense of the Rule of Law: Equality 12 3 The Third Sense of the Rule of Law : Judicial Determination of Disputes 12 B Hayek’s Conception 13 1 The Constraint of Executive Discretion 13 2 Components of the Rule of Law 14 3 The Rule of Law as a Meta-legal Doctrine 15 C Lord Bingham’s Conception 16 III Justice Hey don on the Rule of Law 19 A Justice Heydon’s conception 20 IV The Rule of Law as a Shorthand 23 V Conclusion: How the Rule of Law Can be Understood 24 ix Chapter 3 What does the Rule of Law Require? 25 I The High Court on the Elements of the Rule of law 26 A The Problem of Rhetorical References 27 B The Aspects and Requirements of the Rule of Law 28 II Securing the Legality of Governmental Action 29 A Elem ents associated with Judicial Review of Governmental Action 29 B Elem ents connected to the separation of governmental pow ers 30 III Other Purported Elements 34 A Qualities of Australian law 34 B Equality 36 C Freedoms 38 D The Judiciary and the Courts 39 1 Procedural Requirements 42 E The Legal Profession 44 F The Presumption Against Retrospectivity 45 G Just Com pensation 46 H Proportionality 46 IV Conclusion: The Range of Recognised Elements 47 Chapter 4 The Rule of Law and the Constitution Act 49 I Political Ideals 50 II Legislative Power 51 III Legislative Power Under the Constitution Act 51 A Section 5: The Pow er to Make Laws 52 1 The Scope of Legislative Pow er 52 2 Plenary Pow er 52 (a) Peace, Welfare and Good Government 53 B Lim its on Legislative Capacity Imposed by the Constitution Act 57 IV Limits on State Legislative Power Imposed by the Commonwealth Constitution 59 A Express Limitations Imposed by the Commonwealth Constitution 59 1 The Commonwealth’s Legislative Pow er 60 B Limitations Impliedly Derived from the Commonwealth Constitution 61 1 The Cigamatic and Re Residential Tenancies Tribunal Limitation 62 2 Implied Freedom of Political Communication 62 3 Limitations Derived from Chapter III 63 V Common Law Constraints 64 VI The Rule of Law as a Limit on Section 5 of the Constitution Act 66 x Chapter 5 The Rule of Law and the Commonwealth Constitution 67 I Justice Dixon’s Dictum: The Rule of Law as an Assumed Traditional Conception 68 A Traditional Conceptions 70 B Constitutional Assumptions 72 C The Rule of Law as an Aid to Constitutional Construction 74 II Is the Rule of Law a Constitutional Implicat ion? 76 A Constitutional Implications 76 B Chapter III of the Commonwealth Constitution and the Rule of Law 77 1 Chapter III 77 2 Chapter III as a Constraint on Legislative Capacity 78 3 Judicial dicta 78 C Section 75 of the Commonwealth Constitution and the Rule of Law 79 D The Content of an Implied Conception of the Rule of Law 83 III The State Supreme Courts and the Rule of Law 85 A Kable: The Institutional Integrity of Courts 86 B Kirk: The Entrenchment of Judicial Review 87 C Kable and Kirk: the Imposition of the Rule of Law 88 IV Conclusion: Constitutional Protection of the Rule of Law 91 Chapter 6 The Rule of Law and the Common Law 92 I The Common Law of Australia 93 II The Rule of Law as a Common Law Principle 94 III Common Law Protection of Fundamental Principles 96 A The Ghost of Dr Bonh am ’s Case: Common Law Control of Legislation 97 B Skeletal Principles 98 IV The Principle of Legality and the Rule of Law 99 A Legality as a Canon of Construction 99 B The Quasi-Constitutional Status of the Principle of Legality 104 C Protection of the Elem ents of the Rule of Law 107 V Conclusion: Common Law Protection of the Rule of Law 108 Chapter 7 The Rule of Law and Extreme Laws 109 I Potential answers 109 II Circumstances for Recognit ion of the Rule of Law as a Limit 112 A Extreme laws 113 B Affecting Legality 115 III Conclusion 116 xi Bibliography 118 A Articles/Books/Reports 118 B Cases 127 C Legislation 138 D Other 140 xii CURRENCY The law stated is current as at 1 December 2017. xiii xiv CHAPTER 1 THE MOMCILOVIC QUESTION ‘The Charter draws attention to another question. It is whether the rule of law, upon which the principle of proportionality is founded, may itself imply a limitation. This is a large question concerning the limits, if any, which the rule may effect upon the grant of legislative power to State parliaments.
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