Lecture - SINGAPORE ACADEMY OF LAW ANNUAL LECTURE 2019 — “JUDICIAL REVIEW IN AUSTRALIA: THE PROTECTION AND POWER OF COURTS UNDER THE AUSTRALIAN CONSTITUTION”

• Date: 01 December 2020
• Author: The Honourable Susan KIEFEL AC1 Chief Justice of Australia.
• Published date: 01 December 2020

1 Sir Owen Dixon is generally considered to have been one of Australia's leading jurists. In 1943, he was speaking to the American Bar Association on the topic of sources of legal authority.2 He referred to a variance between the American Constitution3 and the Australian Constitution4 which he described as being “of deep significance”. It is significant, he said, because it means that our countries “are not at one in our conception of the unity of the legal system” of our nations.5

2 He explained the position in the US by reference to a passage in a dissenting judgment by Justice Holmes.6 “Law”, said Justice Holmes:7

… is a word used with different meanings, but law in the sense in which courts speak of it today does not exist without some definite authority behind it. The common law so far as it is enforced in a State, whether called common law or not, is not the common law generally but the law of that State existing by the authority of that State without regard to what it may have been in England or anywhere else.

3 Sir Owen Dixon then explained the position taken in Australia: “In Australia we subscribe to a very different doctrine. We conceive a State

as deriving from the law; not the law as deriving from a State. A State is an authority established by and under the law …”8 The common law, he said, is antecedent to the constitutional instruments which ultimately united Australia into a federal Commonwealth. “The anterior operation of the common law in Australia is not just a dogma of our legal system … It is a fact of legal history”, he said.9

4 Neither Justice Holmes nor Sir Owen Dixon was speaking of the common law as something having a transcendental quality. The common law of which Sir Owen Dixon spoke was not some immutable common law of England pre-Federation which might involve for Australia notions such as parliamentary supremacy. Indeed the common law of Australia, whilst informing the Constitution, is itself influenced by the Constitution.10

5 The context for the statements by Justice Holmes and Sir Owen Dixon was federalism. Justice Holmes denied that the common law was a body of law, whereas Sir Owen Dixon considered that its anterior operation, combined with features of the Constitution, meant that it could operate as a unit.11 This need not be elaborated upon for the purposes of my discussion. The point made by Sir Owen Dixon by reference to it is fundamental to Australian constitutional law. It explains the Australian conception of the rule of law to which all are subject, and points to the importance of the place of the courts in our constitutional system: “Within the limits of its jurisdiction … the function of the judicial branch of government is to declare and enforce the law that limits its own power and the power of other branches of government through the application of judicial process and … remedies”.12

6 The federal judiciary under the Commonwealth Constitution is separate, independent and the exclusive repository of federal judicial power, subject to other courts being invested with federal jurisdiction. It determines the limits of legislative and executive power, largely through the process of judicial review. Judicial review is understood to be an

application of the rule of law. And because the courts are concerned to determine the limits of governmental power by the process of review, it has accepted jurisdictional error as the test.

7 The Commonwealth Constitution itself recognises the importance of the High Court having a power of review. It provides for constitutionally entrenched remedies which may be granted following a process of review. This power to review has been regarded as reinforcing the assumption of the rule of law upon which the Constitution was founded.

8 This is not to suggest that there have not from time to time been challenges to the court's power to review governmental action. From time to time, the High Court has had to consider the extent of the operation of privative provisions and whether they are effective to oust review for jurisdictional error. Another question for the High Court has been privative provisions affecting State Supreme Courts' jurisdiction for review. If such provisions could be effective in protecting jurisdictional errors, not only would those courts not be able to function in a way that the Commonwealth Constitution assumes that they would; the High Court would not be able to fulfil its role as the final appeal court for Australia.13

I. The separation of powers and the Judiciary

9 If the starting point is the law, as Sir Owen Dixon explained, the next step must be the creation of the three branches of government which are subject to it and, in particular, the Judiciary which deals with justiciable controversies arising under the Commonwealth Constitution and the law. “While the anterior operation of the common law in Australia informs the Constitution … the development of the common law of Australia since 1901 must conform with it”.14

10 The constitutions of Australia and the Republic of Singapore15 have in common the separation of the powers of the three branches of government. Under the Australian Constitution, they are dealt with in

three different chapters. Chapter I is titled “The Parliament” and vests the legislative power of the Commonwealth in the “Federal Parliament”.16 Chapter II, “The Executive Government”, contains provisions which vest the executive power of the Commonwealth in the Queen, exercisable by the Governor-General acting with the advice of the Federal Executive Council.17 Chapter III is simply titled “The Judicature”. Its lead provision vests “[t]he judicial power of the Commonwealth … in a Federal Supreme Court, to be called the High Court of Australia, and in such other federal courts as the Parliament creates, and in such other courts as it invests with federal jurisdiction”.18

11 Under the Constitution of Singapore, executive authority is vested in the President and exercisable by the President or the Cabinet by the provisions of Part V.19 Legislative power is vested in the Legislature, consisting of the President and the Parliament, by Part VI.20 Judicial power is vested in the Supreme Court and in such subordinate courts as may be provided by any written law by the provisions of Part VIII.21

12 There are some other provisions of Chapter III of the Commonwealth Constitution which I need to mention for the purpose of the discussion which follows.

13 Section 75 deals with the original jurisdiction of the High Court. Section 75(v) is the provision I alluded to earlier which entrenches the court's power of review. It gives the High Court original jurisdiction in all matters “in which a Writ of Mandamus or prohibition or an injunction is sought against an officer of the Commonwealth”.

14 Section 73 deals with the appellate jurisdiction of the High Court. It includes jurisdiction to hear and determine appeals from “the Supreme Court of any State” as well as “any other federal court”. Section 77(iii) permits a state court to be invested with federal jurisdiction. This structural aspect of the Constitution effectively establishes a system of courts for Australia and a system of law.

II. Judicial independence and exclusivity

15 Australia and Singapore also appear to share in common firm views about the independence of the Judiciary. In Australia, it has been held that courts exercising the judicial power of the Commonwealth must be independent of both the federal and state governments.22 Judicial independence has been described by a former Chief Justice, speaking extra-judicially, as “the priceless possession of any country under the rule of law”;23 and in decisions of the court, as “fundamental to the Australian judicial system”,24 and as assisting the public perception of the courts as independent, which is essential “to the system of government as a whole”.25 In the jurisprudence of the Supreme Court of Singapore, it has been said that “judicial independence is a fundamental tenet” of the law and “one of the foundational pillars of Singapore's constitutional framework”.26 To this end, it has been said, there should be no interference by government with the performance of the judicial function.27

16 The role of the federal judiciary under the Commonwealth Constitution is exclusive. Only courts may exercise the judicial power of the Commonwealth. The landmark case, Australian Communist Party v The Commonwealth,28 explains the nature of federal judicial power and its exclusivity.

17 The legislation in question in that case dissolved the Communist Party and provided for its property to be forfeited.29 It empowered the Governor-General, on the advice of a committee appointed for the purpose, to declare unlawful, by instrument, any body of persons with communist affiliations.30 The Governor-General could make a declaration

respecting an individual, which could affect the ability of that person to work for the Government.31

18 In the recitals to the legislation, it was asserted that communism is a threat to “the security and defence of Australia”. This was an attempt to bring the legislation within a constitutional head of power, the defence power, in order to be valid.32

19 The High Court rejected this attempt on the part of Parliament to “‘recite itself’ into power”.33 It said that only the courts could determine whether the legislation serves a defence purpose, or otherwise falls within a recognised head of power, and is therefore constitutionally valid. It held to be invalid provisions of the legislation because they did not prescribe any rule of conduct or prohibit particular acts or omissions, but proscribed persons and bodies — with Parliament itself determining, or empowering the Executive to determine, the facts upon which the existence of legislative power depended. That determination — of the existence of constitutional facts — is a function reserved for...