Blackshield, Tony --- "The Constitution and judicial review" [1999] ALRCRefJl 8; (1999) 74 Australian Law Reform Commission Reform Journal 40

---

Reform Issue 74 Autumn 1999

This article appeared on pages 40 – 44 of the original journal.

The Constitution and judicial review

Constitutional issues are political issues. Judicial review allows unelected judges to strike down the legislative initiatives of an elected parliament and, therefore, is sometimes said to be undemocratic.

However, the practice of judicial review can be seen to serve the democratic end of limiting government power even if the courts which engage in that practice are not themselves democratically constituted.

Professor Tony Blackshield* discusses whether the courts - through the process of judicial review - are the natural entity to determine the validity of Acts of Parliament.

In the early years of our Federation the doctrine of implied immunity of instrumentalities - espoused by the High Court in D’Emden v Pedder,¹ but finally abandoned by it in the Engineers’ Case² - was disapproved by the Privy Council because, by adopting such a doctrine, the High Court had asserted a power to declare that State legislation was invalid. In Webb v Outrim,³ their Lordships not only misspelt the respondent’s name (which was ‘Outtrim’), but betrayed a fundamental misunderstanding of how the Australian Constitution was to work. The concept that a constitutional court could sit in judgment on the validity of legislation, ringingly proclaimed for the United States by Chief Justice Marshall in Marbury v Madison,⁴ could have no application in Australia (said their Lordships) because the supposed analogy between the Australian and American Federations could not be sustained. On the one hand, the States of the American union had ‘the power of independent legislation’, whereas Acts of the Australian State parliaments required ‘the assent of the Crown’. On the other hand, once that assent was given, an Australian State statute ‘becomes an Act of parliament as much as any Imperial Act’, protected against judicial interference by the same doctrine of parliamentary sovereignty as prevailed in the United Kingdom.

“The American Union . . . 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 [of the High Court] suggests.”⁵

In short, the Privy Council (or at least the Earl of Halsbury, who spoke for their Lordships) believed in 1907 that the working of the Australian Constitution should reflect the same subordination of judicial power to parliamentary power as had come to prevail in England. In England, as Sir Albert Dicey had argued in his Introduction to the Study of the Law of the Constitution in 1885:

“Parliament ... has ... the right to make or unmake any law whatever ... English judges do not claim or exercise any power to repeal a Statute, whilst Acts of Parliament may override and constantly do override the law of the judges.”⁶

It was true that, back in 1610, Chief Justice Coke had asserted a judicial power to “control Acts of parliament and sometimes adjudge them to be utterly void”.⁷ But English judges had long ceased making such claims, and in 1885 Dicey was able to dismiss Dr Bonham’s Case as “obsolete”.⁸

It is possible that if in Webb v Outrim their Lordships had been concerned with the validity of a Commonwealth statute, rather than a State statute, they might not have made such a blunder. So far as the Commonwealth parliament was concerned, it might have been obvious, even to Lord Halsbury, that the Constitution did not endow it with unlimited legislative power, but only with power to make laws with respect to the various matters specifically assigned to it by the Constitution (chiefly by s. 51). Had his Lordship looked further, he might have seen that, quite apart from that limitation of Commonwealth legislation to specified topics or purposes, the constitutional text also imposed overriding restrictions on the effect which such legislation could have. (For example, s. 116 provides that “the Commonwealth shall not make any law” for interfering with freedom of religion in any of four specified ways.) He might even have seen that the text itself imposed similar limitations on the powers of the States. (For example, s. 114 provides that “a State shall not, without the consent of the parliament of the Commonwealth, raise or maintain any naval or military force, or impose any tax on property of any kind belonging to the Commonwealth ...”.)

It was true that in a series of 19th century cases the Privy Council had affirmed that the legislatures of British colonies (within “limits of subjects and area”) had “authority as plenary and as ample ... as the Imperial parliament in the plenitude of its power possessed and could bestow”.⁹ But whatever the situation in the Australian colonies, their transformation into States of a federal Commonwealth was effected by the coming into force of the federal Constitution and their only existence as States was that which the Constitution gave them. As States of a Federation, they were created by and dependent upon the federal Constitution and were necessarily subject to whatever limits it might entail.

Of course, whatever limits the Constitution might expressly or impliedly impose on the legislative powers of either the Commonwealth or the States, it did not necessarily follow that those limits would have legal force. The Constitution might have been treated as a mere political document; a declaration of good intentions. One oddity of Dicey’s approach to constitutional law, still overwhelmingly influential in 1907, was his distrust of written Constitutions. While insisting that judicial power was always subordinate to the power of parliament, he also insisted that the common law could restrain government power more effectively than a written constitutional text, which might sometimes be only a scrap of paper and in any event might always be “suspended”.¹⁰ The 20th century has seen many examples of written Constitutions that have proved to be even more ineffectual than Dicey implied: Giovanni Sartori has called them “façade Constitutions” or even “fake Constitutions”.¹¹ A favourite rhetorical example is the Soviet Constitution of 1936, filled with eloquent declarations of human rights, which did little to protect Soviet citizens. But a Constitution becomes a façade or a fake, or at best a mere political charter, only if it has no mechanism for authoritative interpretation and authoritative scrutiny of whether the limits it imposes on government, or the distribution of powers which it ordains, are in fact being observed.

To be sure, the existence of such a mechanism does not follow as a matter of logical necessity from the mere existence of a written Constitution. It would logically be possible for the constitutional constraints on the power of a legislative body to be interpreted and applied by that legislative body itself. It would even be possible - given a sufficiently alert and informed electorate - to argue that, if parliament had the primary responsibility for policing the limits of its own powers, its effectiveness and good faith in doing so would sufficiently be guaranteed by normal political checks. But, realistically, the effective supervision of limits on institutional power must at least be entrusted to some body other than the power-wielding institution itself. A constraint which means whatever the person or body constrained might decide it to mean is no constraint at all.

Even if we accept the need for an independent body to determine the constitutional validity of Acts of parliament, it does not necessarily follow that this body should be a court. We could maintain, on a permanent footing, a constitutional convention representing the people or the States, or both; or we could assemble such a convention ad hoc whenever disputes about constitutional limits on power arose. Or we could establish (as was done at one stage in Thailand) a joint tripartite commission, representing the judiciary, the legislature and the executive government.¹² Within a bicameral parliament we could set up a joint standing committee of both houses; or simply refer constitutional problems to the upper house - the Senate - in its role as a house of review. But some of these suggestions seem too clumsy, inefficient or wasteful of resources; and others seem too likely to be dominated by merely political processes.

As compared with these suggestions a court is a natural choice. It has genuine independence and at least an appearance of impartiality. It can be kept permanently available to deal with disputes on a relatively inexpensive basis and it is the institution traditionally used in our society for the definitive resolution of other kinds of disputes. Indeed, once constitutional disputes are defined as legal disputes, a mechanism for judicial review seems almost the only choice. If the rules which govern the distribution and limits of governmental and legislative powers are seen as legal rules, then the practices and techniques developed by judges for interpreting and applying legal rules in other disputed areas seem to offer a ready-made resource for interpretation and application of constitutional rules as well.

Of course, it does not necessarily follow that all constitutional rules should be defined as legal rules. The High Court has consistently taken the view that some parts of the Australian Constitution are not legally enforceable and, therefore, not subject to judicial review. One example is s. 54, which prevents a government from ‘tacking’ other matters onto the annual appropriation bills (the budget). A more controversial example is s. 53, which limits the power of the Senate in respect of money bills. The High Court has treated both of these as essentially laying down guidelines for proper parliamentary procedure - ‘constitutional’ rules in the limited British sense used by Lord Halsbury - to be interpreted and enforced by the parliament itself.

Yet any extensive resort to constitutional provisions which are ‘unenforceable’ or ‘not legally binding’ would lead us back into the realm of the façade or the fake, or at best, of mere pious sentiment. One example currently attracting controversy is the final communiqué issued by the Constitutional Convention in February 1998, which foreshadowed a new preamble to the Constitution affirming fundamental national values, but which also insisted that such a preamble was to have no legal effect - and foreshadowed also that this insistence should be reinforced by a new provision in Chapter III of the Constitution (which governs Commonwealth judicial power), forbidding judges from taking any notice of the preamble when interpreting the Constitution. The danger is that a preamble stripped of all legal effect might be stripped of all meaning.

At the least, attempts to ordain fundamental constitutional principles, yet also to shield them from any possibility of judicial enforcement, wear a self-contradictory air. The apparent contradiction leaves the intended result vulnerable to defeat in two quite opposite ways. Either the affirmation of principles will prove to be ineffective, or the shield against judicial scrutiny will prove to be so.

The latter has proved to be the case, for example, with the ‘directive principles’ set out in Part IV of the Constitution of India (which borrowed the idea from the 1937 Constitution of Ireland). The Indian ‘directive principles’ are prefaced by Article 37 of the Constitution, which states that the provisions which follow shall be “fundamental in the governance of the country”, but also that they “shall not be enforceable by any court”. Yet Article 21 (which is judicially enforceable) provides that no one shall be deprived of “life or personal liberty” except according to procedures established by law, and in seeking to give a judicially ascertainable content to the words ‘life’ and ‘liberty’, the Supreme Court of India has begun to use the directive principles to supply that content.¹³

Of course, that kind of outcome is only possible when a court becomes ‘activist’ - even ‘proactive’ - in its practice of judicial review. That the practices of the High Court of Australia have generally stopped short of ‘activism’, apart from a brief controversial flurry in the early 1990s, has been the product of many factors. One is the continuing influence of ‘parliamentary sovereignty’.

While Lord Halsbury’s attempt to impose that notion on Australian constitutional law was ineffective and misconceived, its influence within the practice of judicial review in Australia has nevertheless been profound. The legislative powers of the Commonwealth parliament may be confined by s. 51 to specified limited areas; but so long as the exercise of those powers is found to be ‘within power’, the High Court has generally assumed that the manner in which the power is exercised, or the purpose for which it is exercised, is not subject to judicial review. The exceptions to that assumption have been confined to cases where the powers conferred by s. 51 are perceived to be subject to other overriding limitations, spelled out elsewhere in the Constitution (as with s. 116) or necessarily implied in its text and structure (as with the implied constitutional commitment to freedom of political discourse). Alternatively, they are confined to cases where the purpose of the legislation is relevant to its validity, or where the legislation does not fall directly within the constitutional power, but is brought within it only by an ‘incidental’ extension of the power.

Another factor, itself perhaps reflecting the influence of Dicey’s ideas on Australian constitutional law, is that Australia has not entrusted the task of judicial review of legislation to a specialised ‘constitutional court’. On the one hand, though constitutional matters are regularly removed into the High Court, any court in which a constitutional issue arises has the power and (apart from removal) the duty to determine the issue for itself. On the other hand, our ‘constitutional court’ (the High Court) is also an ordinary appellate court in matters of general law; and for much of its history constitutional cases have been only a small part of its workload. This latter factor, in particular, has meant that the doctrines and techniques developed by the court in its constitutional work have been influenced, to an unusual degree, by those of the common law. Whether it would be better to entrust the task of judicial review to a specialised ‘constitutional court’ may perhaps be a matter for future debate. Certainly Dicey would not have thought so.

Inevitably, constitutional issues are political issues; and because judicial review entails the power of unelected judges to strike down the legislative initiatives of an elected parliament, it is sometimes said to be undemocratic. Insofar as limitations on government power reflect basic democratic values, the practice of judicial review can be seen to serve democratic ends, even if the courts which engage in that practice are not themselves perceived as democratically constituted. But a problem remains, and for constitutional law it may be acute.

Judicial development of common law rules may often be far-reaching, and sometimes misconceived, but in that respect the doctrine of parliamentary sovereignty still prevails, so that judicial developments can always be overridden by parliament. When judges interpret legislation, the same limit on their power applies: if the legislating parliament thinks its intention has been misconstrued it can always legislate again to make its intention clearer. In both these respects, insofar as parliament is a representative democratic body, judicial decisions are ultimately subject to democratic control.

But when judges interpret the Constitution, and especially when they declare that an Act of parliament is unconstitutional, there is nothing the parliament can do. In the words of the United States Supreme Court, the Constitution is “superior paramount law, unchangeable by ordinary means”.¹⁴ By the Constitution - and therefore by the judges’ interpretation of it - the parliament itself is bound.

In theory, at least in Australia, the fact that the Australian people have the power to amend the Constitution means that the ultimate overriding control on the judges’ constitutional work is the most democratic of all. But the real or perceived difficulties of the referendum procedure cast a long shadow over that theory. The need to ensure that judicial review not only serves democracy, but is itself subject to effective democratic control, is one of many reasons why we need to amend our procedure for constitutional amendment.

* Professor AR Blackshield is with the Department of Law and Justice, Division of Law, at Macquarie University in Sydney.

Endnotes

1. D’Emden v Pedder [1904] HCA 1; (1904) 1 CLR 91

2. Engineers’ Case [1920] HCA 54; (1920) 28 CLR 129

3. Webb v Outrim (1907) AC 81

4. Marbury v Madison, 5 US [1803] USSC 16; (1 Cranch) 137 (1803)

5. Webb v Outrim, at 88-89

6. A Dicey Introduction to the Study of the Law of the Constitution, 1885, at 39-40, 60

7. Dr Bonham’s Case [1572] EngR 106; (1610) 8 Co Rep 107a, at 118a; [1572] EngR 106; 77 ER 638, at 652

8. A Dicey, at 61-62

9. Hodge v The Queen (1883) 9 App Cas 117 at 132; see also R v Burah (1878) 3 App Cas 889 and Powell v Apollo Candle Company (1885) 10 App Cas 282

10. A Dicey, at 195-202

11. G Sartori ‘Constitutionalism: A Preliminary Discussion’ (1962) 56 American Political Science Review 853

12. See Nash & Valaisathien, ‘Thailand: the Courts and the Legal Profession’ (1974) 5 Lawasia 61.

13. See Mohini Jain v State of Karnataka [1992] INSC 184; AIR 1992 SC 1858; Unni Krishnan v State of Andhra Pradesh AIR 1993 SC 2178

14. City of Boerne v Flores 138 L Ed 2d (1997)