Scrutiny of Acts and Regulations Committee
Discussion Paper No. 1
On the Operation of Section 85 of the Constitution Act 1975
Appendix 1 - Legal and Constitutional Committee
Report
The Legal and Constitutional Committee has the honour to report as follows:
CHAPTER 1 - INTRODUCTION
On 15 September 1989, His Excellency the Governor in Council
referred the following matters to the Legal and Constitutional Committee
for inquiry and report:
-
the desirability of legislation to amend the Constitution
Act 1975, in order to alter the effect of section 18 of the Act
in relation to legislation which repeals, alters or varies section
85 of the Act and, without limiting the generality of the above;
-
whether the requirement that legislation which repeals,
alters or varies section 85 of the Constitution Act must be passed
by absolute majorities of both Houses of Parliament should be retained;
-
if the requirement referred to in paragraph (2) should
be retained, whether a definition of the types of legislative provision
which repeal, alter or vary section 85 of the Constitution Act should
be inserted into the Act, and if so, what that definition should
be;
-
and, if the requirement referred to in paragraph (2)
should be retained, whether the Constitution Act should be amended
to provide that an Act which contains a provision which purports
to repeal, alter or vary section 85 of the Constitution Act, but
which was not passed by absolute majorities of both Houses of Parliament,
is valid, although the provision which purports to repeal, alter
or vary section 85 is of no effect;
In investigating these matters, the Committee should note
the Government's commitment to the principle that one parliament should
not seek to fetter the ability of a subsequent parliament to legislate,
other than to the extent necessary to safeguard the continued existence
of the fundamental constitutional components of Victoria's system of government.
By way of preliminary observation concerning these terms
of reference, the Committee notes that the first is essentially a mere
general summary of the ground covered in the remaining three. The substantive
issues raised by the reference are set out in terms two, three and four,
and it is to these that the Committee's Report will be directed. The Committee
has also kept in mind the injunction contained in the concluding paragraph
of the terms of reference.
The Committee heard evidence from the following persons
and organisations:
-
The Honourable Sir John Mcl. Young, KCMG, Chief Justice
of Victoria;
-
The Honourable A. J. Hunt, MLC, President of the Legislative
Council, Victoria;
-
Mr. R.K. Boyes, Clerk of the Parliaments and Clerk of
the Legislative Assembly, Victoria;
-
Mr. A.V. Bray, Clerk of the Legislative Council, Victoria;
-
Mr. K. Hayne, Q.C. and Dr. S. Kenny, representing the
Victorian Bar Council;
-
Ms. E. Proust, Secretary to the Attorney-General's Department;
and Ms. A. Rubenstein, Policy Division, Attorney-General's Department,
Victoria.
The Committee received written submissions from the following
persons and organisations:
-
The Honourable Sir John Mcl. Young, KCMG, Chief Justice
of Victoria;
-
The Honourable A.J. Hunt, MLC, President of the Legislative
Council, Victoria;
-
The Honourable K.A. Coghill, MP, Speaker of the Legislative
Assembly, Victoria;
-
Mr. R.K. Boyes, Clerk of the Parliaments and Clerk of
the Legislative Assembly, Victoria;
-
Mr. A.V. Bray, Clerk of the Legislative Council, Victoria.
-
The Honourable D. Malcolm, Chief Justice of Western
Australia; The Honourable Sir Guy Green, Chief Justice of Tasmania;
-
The Honourable J. Berinson, MLC, Attorney-General, Western
Australia;
-
The Honourable A.A. Fitzgerald, MP, former Minister
for Justice, Queensland;
-
Attorney-General's Department, Victoria; Law Institute
of Victoria;
-
Victorian Bar Council.
1.4 ACKNOWLEDGMENT
The Committee also acknowledges the assistance given to
its research staff by the wide variety of persons with whom they consulted,
and in particular the efforts of officers of the Attorney-General's Department.
The present inquiry centres around the interaction between
ss.18 and 85 of the Constitution Act 1975. It is therefore appropriate
that the relevant parts of these provisions be set out, and their basic
effect outlined, in the introductory section of this Report.
Sub-sections (2) and (3) of s.18 (so far as is relevant)
provide as follows:
(2) It shall not be lawful to present to the Governor
for Her Majesty's assent any Bill
(b) by which ... Part Ill ... may be repealed altered
or varied -
unless the second and third readings of such Bill shall
have been passed with the concurrence of an absolute majority of the
whole number of the members of the Council and of the Assembly respectively.
(3) Any Bill dealing with any of the matters specified
in paragraphs (a) and (b) of sub- section 2 which has not been passed
with the concurrence of an absolute majority of the whole number of
the members of the Council and of the Assembly respectively shall be
void.
Section 85, which is contained in Part III of the Constitution
Act, and is thus subject to the operation of sub-sections (2) and (3)
of s.18, provides as follows:
(1) Subject to this Act the Court [i.e. the Supreme Court]
shall have jurisdiction in or in relation to Victoria its dependencies
and the areas adjacent thereto in all cases whatsoever and shall be
the superior Court of Victoria with unlimited jurisdiction.
(2) [Repealed]
(3) The Court has and may exercise such jurisdiction (whether
original or appellate) and such powers and authorities as it had immediately
before the commencement of the Supreme Court Act 1986.
(4) This Act does not limit or affect the power of the
Parliament to confer additional jurisdiction or powers on the Court.
The basic effect of ss.18 and 85 when read together, if
not their full ramifications, is easily enough understood. A bill containing
a provision which in any way seeks to change the operation of s.85, the
provision of the Constitution Act conferring jurisdiction upon the Supreme
Court, will require passage through both Houses of Parliament by absolute
majorities. In the common legal term, the jurisdiction of the Supreme
Court is thus entrenched.
Further, in the absence of the requisite absolute majorities,
a bill dealing with the jurisdiction of the Supreme Court will be void.
The only exception to this rule is that created by sub-section 85(4),
which has the apparent effect that bills which contain a provision increasing
the jurisdiction of the Supreme Court do not require passage by an absolute
majority. Thus, the net effect of ss.18 and 85 in the present context
is that a bill which contains a provision which in any way modifies the
operation of s.85 - in other words, which repeals, alters or varies that
section - other than a bill which confers additional jurisdiction upon
the Supreme Court, will be void in its entirety.
Two things may be noted at this stage concerning the operation
of these provisions. First, while it is perfectly clear that a bill which
'repeals, alters or varies' s.85 will require passage by absolute majorities
in both Houses, neither s.85 nor any other provision of the Constitution
Act makes an attempt to define the class of bills which will have such
an effect. Secondly, in the event that a bill contains a provision which
does alter, vary or repeal s.85, it is not only that provision which will
be void by operation of sub-section 18(3): the whole bill will fall, even
if the offending provision is of only very minor importance. Both these
matters will be returned to in due course.
The Committee is grateful to the writers of a number of
submissions, among them the Hon. Alan Hunt and officers of the Attorney-General's
Department, who traced the drafting history of the constitutional provisions
concerned, and in particular that of sub-section 85(1), around which most
of the questions raised by this reference tend to revolve. However, beyond
noting that this history reveals nothing concerning the intention of Parliament
as to the precise operation of s.85 in conjunction with s. 18 (see Transcript
of Evidence, Hon. Alan Hunt pp.17- 20; Submission of Attorney- General's
Department, pp.3-4), the Committee does not propose to refer further to
the materials concerning the origins of those provisions.
The Committee is of the view that, in pursuing its reference,
it is required to seek a practical solution to what has become a significant
practical problem. It is therefore important that the nature of that problem
be clearly identified.
The essential problem that has arisen in relation to the
operation of ss.18 and 85 of the Constitution Act is that it is profoundly
unclear which bills these provisions require to be passed by an absolute
majority as repealing, altering or varying s.85. This is because the concept
of a bill containing a provision which 'repeals, alters or varies s.85'
is itself extremely vague. This basic problem may thus be characterised
as one of 'definitional uncertainty'. Of itself, this might be nothing
more than a matter of obscure legal interest. However, definitional uncertainty
in this context has given rise to two further, extremely significant practical
difficulties, each flowing directly from the impossibility of readily
determining the class of bills requiring an absolute majority through
the inter-action of ss.18 and 85.
The first will be referred to as 'procedural uncertainty'.
The vagueness of the exact limits of the class of bills repealing, altering
or varying s.85 means that it is extremely difficult for the responsible
officers of the Parliament to accurately determine which bills require
or do not require an absolute majority by virtue of their affecting the
jurisdiction of the Supreme Court in the relevant sense. The Presiding
Officers themselves are placed in a particularly acute position. If they
err on the side of not unduly hindering the free workings of Parliament,
and a Bill which in fact requires passage by an absolute majority consequently
is passed by a mere simple majority, the Presiding Officers will have
unwittingly failed in their constitutional duty, and will have exposed
an otherwise valid Act of Parliament to the danger of being pronounced
a nullity. On the other hand, if they err on the side of caution, and
require that every bill which might by the remotest possibility intrude
upon the jurisdiction of the Supreme Court be passed by an absolute majority,
they will disrupt ordinary parliamentary procedure, and risk the irritation
of both members and government. The Clerks of the Parliament are in a
similarly invidious position. The difficulties in this connection were
clearly outlined in the written submissions of the President, the Hon.
Alan Hunt, and the Speaker, the Hon. Ken Coghill.
However, the problem of procedural uncertainty pales by
comparison with the second difficulty raised by the lack of clarity in
the class of bills caught by the combined operation of ss.18 and 85. This
may be termed the problem of 'legal uncertainty'. The difficulty here
is that because it is so hard to predict whether a bill should or should
not be passed by an absolute majority on the grounds that it touches the
jurisdiction of the Supreme Court, the chance exists (as already adverted
to above) that a bill which does answer that description will inadvertently
be passed without such a majority. In these circumstances, the entire
bill will be void, with all the horrendous and unexpected legal consequences
that this might involve. As the application of the absolute majority requirement
in this context is so uncertain, there is ample room for doubt to be raised
as to the validity of a wide range of bills should they be passed without
an absolute majority: hence a large degree of potential legal uncertainty,
a state of affairs which cannot be allowed to persist. The only obvious
way around this difficulty which is available without legislative reform
is for the Presiding Officers to require a great number of bills to be
passed by an absolute majority, with all the inconvenience in terms of
parliamentary procedure which has been outlined in the preceding paragraph.
One further problem, the existence of which has already
been noted in passing, must also be mentioned. Subsection 18(3) has the
effect that where a bill contains a single provision which acts upon the
jurisdiction of the Supreme Court, the whole bill must be passed by an
absolute majority, and in the absence of such passage, the whole bill
will be void. Thus, the effect of a failure to secure passage of a bill
by absolute majority may be grossly disproportionate to the extent to
which that bill operated negatively upon the jurisdiction of the Supreme
Court. A bill which dealt with a great many important matters, and only
as the most incidental of effects had some very minor impact upon the
jurisdiction of the Court, would nevertheless collapse entirely unless
passed by an absolute majority. This situation cannot be overlooked or
ignored.
In summary ss. 18 and 85 present three problems, following
from or in the case of the third exacerbated by - the real difficulty
of accurately determining whether a bill repeals, alters or varies s.85:
procedural uncertainty in the Parliament; legal uncertainty as to the
validity of Acts of the Parliament; and a problem of disproportion between
the degree of failure by a bill to comply with the absolute majority requirements
in this context, and the consequences of that failure for the bill concerned.
All of these problems will presently be related specifically to the Committee's
terms of reference, and addressed in due course in this report.
Before proceeding further, the Committee believes that some
very short account should be given of the events which have led His Excellency
to refer to it the matter which forms the subject of this report. It does
so, not for the purpose of providing an exhaustive historical description
of these events, but to place the legal problems identified above within
their factual context. Accordingly, the following account is appropriately
brief.
It is perhaps surprising that the difficulties posed by
s.85 did not become apparent within a comparatively short time after its
enactment. In fact, they did not surface in any appreciable form for over
a decade. However,-in 1988, Mr. Justice Tadgell of the Supreme Court of
Victoria, in a paper delivered to the Supreme Court Judges' Conference
in Brisbane and entitled 'Judges of the Nineties and Beyond', obliquely
raised the question of the operation of ss. 18 and 85 in the specific
context of the Retail Tenancies Act 1986, which (among other things) conferred
what appeared to be an exclusive jurisdiction upon a body other than a
Supreme Court. Mr. Justice Tadgell hinted that this Act, in the absence
of passage by an absolute majority, might be invalid (pp.33-).
Thereafter, something of a rash of (hitherto inconclusive)
litigation ensued in the Supreme Court, with a view to testing the validity
of a number of Acts on the basis that they operated upon the jurisdiction
of the Supreme Court without having been passed by an absolute majority.
A purely illustrative example is Mowra Pty. Ltd. v. Roper(Unreported,
14 March 1989). In that case, the validity of the Planning; and Environment
Act 1987 was questioned on the basis that the conferral of an exclusive
planning jurisdiction upon the Administrative Appeals Tribunal had the
effect of altering or varying sub-section 85(1 ) of the Constitution Act.
Mr. Justice Phillips expressed no conclusive view on this question, but
held that there was a 'serious question to be tried'. In Jam Factory Pty.
Ltd. v. Sunny Paradise Pty. Ltd. (Unreported, 25 October, 1988), Mr. Justice
Ormiston had already deplored the uncertainty surrounding the operation
of s.85(1 ) - without expressing any concluded legal view - again in the
context of the Retail Tenancies Act. While the Committee notes that none
of these judicial rumblings have yet resulted in a pronouncement on the
exact scope of s.18 in relation to s.85, it is perfectly clear that a
serious legal problem now bedevils the passage of a wide class of bills.
Following upon these events in the Courts, efforts were
made by the Government to avoid the potential disaster of the wholesale
invalidation of past and future legislation. The opinion of a number of
learned counsel was sought as to the class of bills comprehended by the
phrase 'repeal, alter or vary' in relation to s.85. These opinions, some
of which have been supplied to the Committee, were divided and inconclusive.
More substantially, the Government introduced into the Parliament
the Constitution (Supreme Court) Bill 1989, which received its second
reading in the Legislative Assembly on 19 April 1989. This is not the
place for a detailed rehearsal of the contents of that Bill. Suffice to
say that clause 4 of the Bill sought (in very broad terms) to more clearly
define the circumstances in which a bill would be taken to repeal, alter
or vary s.85, while clause 5 was directed towards validating all Acts
having such an effect passed before the time when the Bill should commence
operation as law, even if such Acts had been passed without an absolute
majority. Certain amplificatory amendments were made to the Bill in the
Legislative Assembly on 2 May, and the Bill was debated in the Legislative
Council on 26 May. There, the Government announced its intention to vote
against clause 4 (as amended in the Assembly), with the effect that the
Bill as eventually passed by the Council merely validated past Acts, without
seeking prospectively to deal with any of the problems raised by ss.18
and 85. The Bill was agreed to in this form by the Legislative Assembly,
and received the Royal Assent as the Constitution (Supreme Court) Act
1989 on 2 June, on which day it came into operation. Accordingly, that
Act does nothing to resolve the basic uncertainty raised by the sections
of the Constitution Act which have provoked this reference.
Thus, since the passage of the Constitution (Supreme Court)
Act, the possibility that Acts passed between December 1975 and June 1989
might be invalid has been removed. The problem remains, however, as to
how to deal with new bills which might, however remotely, affect the jurisdiction
of the Supreme Court. As the written submission of the Attorney- General's
Department revealed, many bills (19 in the Spring 1989 session) potentially
fall within this category. Consequently, the tendency during 1989 has
been to err on the side of caution by requiring an absolute majority to
be obtained in respect of all such bills, with the considerable inconvenience
in terms of parliamentary procedure that this involves. In light of this
analysis, it is clear that the past twelve months have strikingly illustrated
the problems identified by the Committee as inherent in the operation
of ss.18 and 85 in relation to legislation affecting the jurisdiction
of the Supreme Court. These problems remain unresolved.
Having identified the practical problems to which its inquiry
must be directed, the Committee turns to the specific questions raised
by the terms of reference. As a general proposition, the Committee is
of the view that three broad questions are posed, each of which corresponds
to one of the last three terms of reference framed by His Excellency.
The first question is straightforward: whether the entrenchment
of the jurisdiction of the Supreme Court by absolute majority effected
by ss. 18 and 85 should be retained or abolished? This question corresponds
with the Committees second term of reference. The Committee has been directed
to take into account the Government's position against the fettering of
one Parliament by another.
The second question only arises if the Committee determines
that the entrenchment of the jurisdiction of the Supreme Court by absolute
majority should be retained. In that case, the question to be answered
is whether any steps could be taken whereby the class of bills 'repealing,
altering or varying s. 85' might be more clearly defined. It will be recalled
here that the vagueness of this crucial concept was regarded as the basic
problem posed in the context of this reference. This question relates
to the third term of reference.
Finally, again arising only if the Committee proposes the
retention of the entrenchment of the Court's jurisdiction, should a Bill
containing a provision operating upon the jurisdiction of the Supreme
Court be void in its entirety in the event that it is passed by a mere
simple majority, or should the offending provision alone be a nullity?
This question is posed by the fourth of the Committee's terms of reference.
The Committee's report will address each of these crucial
questions in turn.
It is appropriate that, before turning to a resolution of
the questions outlined above, the Committee make a brief statement as
to its general approach to this complex and important reference.
It is clear to the Committee that the reference involves,
to a very large extent, a potential conflict between the demands of constitutional
principle, and administrative and legislative practicality. Thus, on the
one hand, the Committee acknowledges the general truth that the fundamental
features of Victoria's constitutional system should be adequately protected
from hasty or careless displacement. On the other, it appreciates the
real difficulties that may be involved for Governments, Presiding Officers
and administrators in navigating a course with reasonable certainty among
the various constitutional devices which may be erected for the purpose
of securing such features. The difficulty here is that of arriving, at
an appropriate balance between due protection and proper governmental
convenience.
In the course of its inquiry, the Committee has noted that
officers of the Attorney- General's Department - as representatives of
the general governmental interest in this matter- have been concerned
primarily with securing a convenient and efficient procedure for the valid
passage of bills, with a comparatively slight weight being given to constitutional
principle. The Committee does not make this comment by way of criticism:
it is appropriate, or at least understandable, that the priorities of
serving officers of the State should be so ordered.
However, this Committee is bound to give due weight not
only to governmental convenience, but also to constitutional principle.
It is responsible to the Parliament itself in this regard. Consequently,
to this Committee, the real question in the present context must be whether
the constitutional interest protected by the entrenchment of the jurisdiction
of the Supreme Court is so fundamental to the constitutional well-being
of Victoria that it merits special protection. If the answer to this question
is in the affirmative,- then a significant (though not inordinate) degree
of governmental inconvenience may well be an acceptable price to pay for
proper protection, and the Committee has kept this factor firmly in mind
throughout its inquiry.
The Committee wishes to make two further general comments
concerning its approach to the reference. First, the operation of ss.18
and 85 undeniably raise numerous and complex legal issues. The Committee's
attitude throughout has been to avoid setting itself up as some mock court
for the final judgment of such profound constitutional questions. The
interpretation of the Constitution Act is not a matter for this Committee,
eminent counsel, or officers of the Crown. It is a matter firmly reposed
in the Supreme Court, and there the Committee is happy to let it lie.
Only as it has proved absolutely necessary to the disposition of the reference
has the Committee ventured an opinion upon the legal meaning of the relevant
provisions of the Constitution Act. Fortunately, this necessity has not
often arisen.
Secondly, this report contains a number of recommendations
for legislative action. The Committee has not attempted to frame these
recommendations as draft legislation: the enactments required are complex
and technical, and the Committee freely acknowledges that they are beyond
the skill of all but the most competent of specialists to compose. It
has therefore indicated its intentions as clearly as possible in each
case, and is content to leave the task of translating those intentions
into draft provisions to Parliamentary Counsel.
This is a practical report, dealing with practical matters.
It is as short as the subject matter allows. So far as is possible, it
is expressed in language which is comprehensible to the ordinary reader.
It is not concerned to present a learned thesis upon the subject of the
jurisdiction of the Supreme Court, or upon the subject of constitutional
entrenchment, but rather to present workable means of alleviating real
difficulties which have arisen within the constitutional apparatus of
the State.
'Entrenchment' is the common legal term for the enactment
of legislation which renders the repeal or amendment of a particular provision
more difficult than would ordinarily be the case. As s.85 of the Constitution
Act cannot, by virtue of s.18 of the same Act, be repealed, altered or
varied without absolute majorities being obtained in both Houses of Parliament,
it is to this extent entrenched. It should be noted that this absolute
majority requirement is a comparatively weak form of entrenchment: far
more onerous requirements exist in other contexts. An example of such
a requirement is s.128 of the Commonwealth Constitution, which entrenches
the whole of that Constitution, so that it may only be altered after the
conduct of a successful referendum.
It is generally accepted as a matter of constitutional principle
that one Parliament should not, save in exceptional circumstances, seek
to stay the hand of a subsequent Parliament through the entrenchment of
this or that aspect of the existing constitutional law. The reasoning
behind this principle is clear: circumstances change, as do community
needs and values, and Parliament must be as free as possible to change
with them. A past Parliament is in no position to confidently predict
the future, and so it should not seek to confine the liberty of action
of its successors in attempting to cope with that future. Thus, as a general
principle, entrenchment is to be avoided as comprising an intrusion of
the dead hand of the past into the present. Precisely this principle is
expressed in the admonition to the Committee in its terms of reference
to keep in mind the Government's general opposition to attempts by one
Parliament to fetter the hands of subsequent Parliaments.
This said, however, there is at least one recognised exception
to the general principle against entrenchment. It is widely accepted that
the entrenchment of truly fundamental constitutional precepts and values
may be appropriate, provided that the degree of entrenchment is not so
great as to in practical terms completely incapacitate a future Parliament
from action. Again, so much is recognised specifically in the Committee's
terms of reference, which warns against the fettering of the legislative
power of the Parliament 'other than to the extent necessary to safeguard
the continued existence of the fundamental constitutional components of
Victoria's system of government' (emphasis supplied). The same proposition
was advanced in only slightly varying terms in most of the submissions
received by the Committee, and particular reference is made in this connection
to the submissions of the Chief Justice, the Law Institute of Victoria
and the Victorian Bar Council.
The rationale behind the proposition that the entrenchment
of fundamental constitutional values, principles and structures is acceptable
is not that certain matters should be totally beyond the reach of a validly
constituted Parliament. On the contrary, the sovereignty of Parliament
is central to the constitutional structure of Victoria, and that sovereignty
is in no way compromised by the moderate entrenchment of particular features
of the Constitution Act. An acceptance of the validity of entrenchment
in the terms outlined above involves not the acceptance of the proposition
that there are certain things which Parliament should not be able to do,
but the recognition that some parts of our constitutional structure are
of such fundamental importance that they ought not lightly to be changed:
that they should not be altered without the existence of widespread consensus,
or at least, without Parliament being required to consider carefully and
publicly whether such a step is advisable. Thus, entrenchment, at least
of the very modest kind considered here, does not in any sense substantively
fetter the power of Parliament. In the case of a mere absolute majority
requirement, it does not look even to the achievement of broad community
consensus before fundamental features of the Constitution may be altered.
All that the imposition of an absolute majority requirement can do, in
this or in any other context, is emphasise to the Parliament the potential
gravity of the step which it is taking. Entrenchment by way of absolute
majority is essentially a warning light to the legislature. It says 'Stop!
Think before you proceed', but it goes no further than this. How successful
it is in performing this comparatively humble cautionary task will be
considered presently.
Recognition of the role of entrenchment in relation to the
protection of fundamental constitutional principles is widespread. Many
of the guarantees of human rights to be found throughout the world are
protected by some form of entrenchment. Pertinent examples include those
to be found in the Constitutions of Canada, and the United States. It
has been accepted in the courts that the entrenchment of particular parts
of a state's Constitution in no sense derogates from the sovereignty of
the legislature of that state (see e.g. the decision of the Privy Council
in Bribery Commissioner v. Ranasinghe [1965] A.C.172). In the particular
case of Victoria, a number of features of the Constitution Act (quite
apart from the jurisdiction of the Supreme Court) are recognised as being
fundamental, and so worthy of entrenchment through the imposition of absolute
majority requirements via s.18. These include the composition, powers
and procedures of each of the Houses of Parliament, and the existence
of a system of local government. A similar position applies in all the
other Australian States, while the whole of the Commonwealth Constitution
is heavily entrenched under s.128.
Consequently, the Committee entirely accepts the appropriateness
of the moderate entrenchment of the fundamental features of Victoria's
Constitution. It sees the purpose of this entrenchment as being to provide
a timely warning to the Parliament that it is dealing with a matter of
grave importance. It further accepts that the imposition of the requirement
of an absolute majority in both Houses of Parliament involves a very modest
degree of entrenchment, the essential nature of which is to act as a reminder
to the Parliament to tread carefully, and with due reflection. Indeed,
it notes that it is difficult to envisage a less onerous degree of entrenchment
than that comprised in an absolute majority requirement. Such a requirement
stands in stark contrast to those more rigorous procedures protecting
features of other Constitutions, such as that of the Commonwealth.
The relevance to the present inquiry of these general conclusions
concerning entrenchment is as follows. Given that the Committee is prepared
to accept the moderate entrenchment of fundamental constitutional values,
it is a matter of crucial importance to determine whether the protection
of s.85 of the Constitution Act by the imposition of an absolute majority
requirement answers such a description. As the Committee has already conceded
that an absolute majority requirement as such represents only a very modest
degree of entrenchment, the only real question remaining for determination
here is whether the constitutional value protected by the entrenchment
of s.85 whatever that value may be - is properly regarded as 'fundamental'
or 'essential'. In the event that the Committee determines that this is
indeed the position, then it will follow that at least a strong initial
case for entrenchment has been made.
In this connection, the Committee again stresses its own
constitutional responsibilities. If the Committee forms the view that
the value enshrined in s.85 is indeed of fundamental importance to Victoria's
constitutional structure, very cogent argument would be required to be
advanced before the Committee would concur in any proposal to withdraw
so minimal a degree of entrenchment as that comprised in the existing
requirement for the obtaining of an absolute majority; a requirement the
essential effect of which is, as has been stated before, merely to encourage
the Parliament to pause and consider before taking the legislative step
in question. This is not to say that having once identified some fundamental
constitutional value in subsection 85(1) the Committee will defend its
continued entrenchment regardless of the extent of inconvenience that
may be caused. In exceptional circumstances even important constitutional
principle may have to give way to great inconvenience. But the degree
of inconvenience would have to be truly great, and no possibility of alternative
alleviating measures exist, before the Committee would accede to the removal
of the protection comprised in an absolute majority requirement from a
constitutional principle or value that may properly be regarded as fundamental
to the State of Victoria.
The vital question before the Committee is thus whether
the constitutional value protected by the entrenchment of s.85 of the
Constitution Act is fundamental to our State's constitutional structure.
The necessity thus arises to identify that value, and to assess its importance.
The terms of s.85 have already been recounted, and its interaction
with s.85 noted, in the first section of this report. For present purposes,
it suffices to restate the combined effect of these two provisions as
being that when a bill contains a provision which in any way operates
upon the jurisdiction of the Supreme Court, other than by conferring an
additional jurisdiction upon that Court - an operation which will here
be referred to for the sake of convenience as one which 'detracts from
the jurisdiction' of the Supreme Court - that Bill must be passed by an
absolute majority of both Houses of Parliament. The immediate question
is the determination of the value protected by requiring that no detraction,
be made from the jurisdiction of the Supreme Court save by legislation
passed in accordance with absolute majority requirements.
The answer to this question must, of course, ultimately
turn upon the precise jurisdiction guaranteed to the Supreme Court by
s.85. The crucial provision here is, in the view of the Committee, sub-section
85(1), which lies at the heart of the conferral of jurisdiction upon the
Supreme Court by the Constitution Act. This sub-section provides that
the Supreme Court shall be 'the' superior court of Victoria; shall have
unlimited jurisdiction, and shall have jurisdiction in Victoria 'in all
cases what so ever. Precisely what constitutional value is protected by
the entrenchment of this jurisdiction?
Upon this question, the Committee has no doubt whatsoever.
Whatever legal intricacies may attend the interpretation of s.85, whatever
doubts may be felt as to its application to particular and unusual circumstances,
the principle which lies at the heart of the section is that in any legal
dispute, citizens are ultimately to have recourse to a court of law -
the Supreme Court which will dispose of that dispute accordingly to the
law. In granting to the Supreme Court jurisdiction in all cases whatsoever,
the constitutional principle enshrined in s.85, however opaquely expressed,
is that in Victoria, there is to be 'Rule of Law', enforced by a court
of law.
In coming to this conclusion, which seems to the Committee
to be manifest upon the words of the sub-section, the Committee has heeded
the words of the Chief Justice, who in evidence said:
It is because the Supreme Court has been able to fulfil
its function as a superior court of general jurisdiction that citizens
of Victoria are able to say, with truth and pride, that they live under
the rule of law. Any depletion of that jurisdiction must impair or gravely
strain the Count's capacity to fulfil its function. (Written Submission
(1), p.3.)
In response to a request by the Committee, the Chief Justice
supplied a statement as to what he understood to be meant by the expression
'Rule of Law'. He wrote:
The phrase "the rule of law" has been explained
in various ways. Essentially, however, it is a concept which implies
that all authorities, legislative, executive and judicial and all persons
in the State are subject to certain principles which are the same for
everyone and which are generally accepted as characteristic of law.
These principles are the fundamental notions of fairness, of morals,
of justice and of due process. The rule of law involves equality before
the law and it involves consistency and uniformity in the decision of
disputes. arrived at by the disinterested and impartial application
of legal rules to ascertained facts and not by giving effect to what
may appear to be popular moods of the moment or individual predilections.
(emphasis supplied) (Written Submission (2), p.2.)
The Committee draws the attention of the reader in particular
to the words given emphasis in the above extract. It is this notion of
the disinterested application of the law which the Committee believes
to lie at the heart of the Rule of Law, and to be the basic value enshrined
in s.85 of the Constitution Act.
The Committee also notes the comments of Mr. Hayne, representing
the Victorian Bar Council. In evidence, Mr. Hayne spoke to the same effect
as the Chief Justice, saying:
The function of the court quite simply is to apply the
law and thus to ensure that all abide by the law of the land, including
as need arises, the individual citizen, the corporation and the executive
government. If needs be it is for the court to stand between the citizen
and the government and judge between them according to the law. (Transcript
of Evidence, p.49.)
With this comment, the Committee wholeheartedly agrees.
In making it, Mr. Hayne is effectively placing the concept of Rule of
Law, the value which the Committee regards as underlying s.85, in one
of its most important perspectives: it is a bulwark of the liberties of
the citizen. It guarantees the citizen that he or she will be dealt with
according to law, rather than executive whim.
Indeed, the Committee takes this opportunity to note that,
in entrenching the right of citizens to have legal disputes decided by
a court of law according to the law, s.85 arguably represents the only
constitutionally entrenched human right in Victoria. It thus covers a
small part of the ground included in such documents as the International
Covenant on Civil and Political Rights, the United States Bill of Rights,
and the Canadian Charter of Rights and Freedoms.
While the Committee is of the view that the fundamental
value protected by the entrenchment of the jurisdiction of the Supreme
Court is the Rule of Law, it also discerns another constitutional principle
which is at least partly contained within s.85, and thus protected by
s.18. To the extent that the former provision guarantees the ultimate
disposition of legal disputes by a judicial body, it involves a recognition
of the basic rule of the separation of powers. This follows from the fact
that it would appear that the combined effect of ss.18 and 85 is that
an absolute majority will be required before the Supreme Court may be
legislatively excluded from the determination of a legal issue. This aspect
of s.85 was commented upon in the written submissions of the Law Institute
of Victoria and the Victorian Bar Council. Nevertheless, while entirely
accepting that the entrenchment of s.85 has a rote to play in the maintenance
of the doctrine of the separation of powers within Victoria, the Committee
remains of the view that the basic constitutional value contained within
that provision is that of the rule of law. The question which then arises
is whether this value is sufficiently fundamental to Victoria's constitutional
system to merit entrenchment by absolute majority.
This matter may be disposed of briefly. It is beyond all
question or dispute that the Rule! of Law is one of the most fundamental
constitutional values of the State of Victoria, and for that matter of
any civilised society. Without it, the Constitution itself is merely a
piece of paper, and the protection’s guaranteed by law to citizens
entirely worthless. It would indeed be difficult to conceive of a more
fundamental constitutional principle.
It follows inevitably from this that the Committee views
the entrenchment of s.85 as comprising the protection of a fundamental
constitutional principle of the very first importance.
The consequence of this conclusion in terms of the present
inquiry is necessarily that the jurisdiction granted to the Supreme Court
by s.85 should continue to be entrenched, unless the problems raised by
that entrenchment are so grave as to entirely preclude that course of
action. As has been suggested earlier in this report, in striking the
requisite balance here between the maintenance of constitutional principle
and the preservation of administrative and governmental convenience, the
Committee must, while having due regard to the latter, bear firmly in
mind the grave necessity of safeguarding Victoria's fundamental constitutional
values.
The nature of the practical difficulties posed by the entrenchment
of the jurisdiction of the Supreme Court have already been fully detailed.
Without in any way seeking unduly to minimise these difficulties, the
Committee has concluded that they are not such as to justify the abandonment
of the entrenchment of so vital a constitutional principle as that entrenched
in s. 85. Put simply, the Committee is of the view that, even were the
choice to be between the entrenchment of the Rule of Law, and the solution
of all the practical difficulties outlined in the introduction to this
report, the former course would have to be preferred.
The due recognition of fundamental constitutional principle
is rarely convenient to governments and administrators, but that is not
a sufficient justification for leaving such principles unprotected.
In this connection, the Committee again makes reference
to the character of s.85 as a human rights provision, and observes that
the repeal of what is possibly the only such provision in the-Victorian
Constitution would indeed be a singular course for this Committee to recommend,
and for any government to adopt.
Fortunately, however, the Committee is not of the opinion
that the price of the entrenchment of the Rule of Law in s.85 will be
the continuance of the problems which have arisen in the past. This is
because the Committee has formed the view that the vast majority of these
problems may be resolved by the adoption of the variety of measures recommended
in the following section of this report. Any comparatively small difficulties
which may remain, must be accepted as the unavoidable price of the proper
protection of fundamental constitutional principle. The Committee notes
that, to the extent that any uncertainty might remain in the operation
of s.85 after the adoption of its recommendations it will be neither the
first, nor the last statutory provision whose precise ambit is not entirely
clear; and that the Courts are well-used to resolving a degree of ambiguity
by a process of statutory interpretation.
RECOMMENDATION 1 The Committee recommends that
the jurisdiction so the Supreme Court should continue to be entrenched,
so that a bill repealing, altering or varying s. 85 be the Constitution
Act 1975 should be required to be passed by an absolute majority of
each House of Parliament.
Having made this recommendation, the Committee also feels
constrained to comment upon two specific matters raised before it regarding
the entrenchment of the jurisdiction of the Supreme Court. The first was
raised by Sir John Young. The Chief Justice argued that without the entrenchment
of the actual jurisdiction of the Court, the entrenchment in the Constitution
Act of other provisions guarding the independence of the Court would be
'hollow' (Written Submission, pp.4-5). With this comment, the Committee
agrees: what is the point of guaranteeing a court independence, without
guaranteeing it a jurisdiction within which that independence is to be
exercised? The second matter was put forward by the Attorney- General's
Department, which went to some pains in its written submission to prove
that s.85 would not in fact effectively protect the constitutional values
which the Committee has collected here under the rubric of the Rule of
Law. It was therefore suggested that the entrenchment of s.85 serves no
useful purpose. The Committee disagrees with this argument. It may be
that s.85 does not perfectly express the concept of Rule of Law, but its
enshrinement of that principle in general terms is plain enough to the
Committee, the Chief Justice, the Law Institute and the Bar Council. The
Committee is confident that when and if s.85 comes to be interpreted by
the competent judicial authority - the Supreme Court - the constitutional
protection’s which it evidently confers will not prove lacking. In
any event, some of the further recommendations made by the Committee in
this report resolve a number of the doubts raised by the Attorney- General's
Department in this connection.
One further matter remains to be dealt with in relation
to the entrenchment of the jurisdiction of the Supreme Court. The purpose
of protecting s.85 from repeal, alteration or amendment without the attainment
of an absolute majority has been identified by the Committee as being
to provide Parliament with a reminder that such a course is a grave one,
and not to be taken without due consideration. The question to be considered
here is whether the requirement of an absolute majority is effective in
promoting this degree of constitutional reflection.
In its written submission (p.10), the Attorney-General's
Department suggested that the imposition of an absolute majority requirement
in the present context did not have such an effect. The submission argued
that the attainment of an absolute majority would simply be a matter of
organisation for the Government Whip, and that no added degree of Parliamentary
consideration of the measure in question would be involved. To the Attorney-General's
Department, this was a further reason for the abolition of the entrenchment
of s.85.
The response of the Committee to this is two-fold. In the
first place, the fact that an absolute majority requirement may not be
fully effective is no reason for its abolition. At the very least, it
is better than nothing, and if it does not alert the Government to the
special character of the clause under consideration, it may alert the
Opposition. Secondly, however, the Committee accepts the suggestion that
there is at least a danger that the attainment of an absolute majority
will become ritualistic, thereby detracting from the role of such a requirement
in alerting Parliament to the introduction of important legislation. Clearly,
the need exists for the imposition of some additional but workable procedure
which reinforces the warning effect of the absolute majority requirement,
without unduly complicating the Parliamentary process.
As it happens, it is not difficult to devise such a procedure.
The Committee proposes that the Constitution Act be amended, so that whenever
a bill is introduced into Parliament containing a provision which has
the effect of repealing, altering or varying s.85, the Minister responsible
for that bill be required to table at the conclusion of his or her second
reading speech a full written statement of reasons detailing why the particular
detraction from the jurisdiction of the Supreme Court has been thought
advisable. In this way, the attention of Parliament will clearly be drawn
to the issue at hand, while the absolute majority requirement will continue
to underline the gravity of that issue. The statement of reasons will
also provide members with material upon which to debate the merits of
the measure. The Committee appreciates that it is not practical for such
statements to be delivered in the case of bills which come to operate
upon the jurisdiction of the Supreme Court through the making of House
amendments, if only for reasons of time. It is content therefore that
the requirement for such statements apply only to bills which affect the
jurisdiction of the Supreme Court as introduced into Parliament. The Committee
does not view this limitation as compromising the integrity of its plan,
as the possible introduction of a clause detracting from the jurisdiction
of the Supreme Court will be a potent inducement for the rejection or
deferment of the bill in question, and the Committee is prepared to rely
upon the Parliamentary process in this respect.
RECOMMENDATION 2 The Committee recommends that
the Constitution Act should be amended to provide that where a bill
contains a provision which expressly declares its Intention to repeal,
alter or vary s.85 of the Constitution Act, the Minister responsible
for the bill shall table a document during the second reading speech
setting out in detail the reasons justifying the adoption of that course.
In the absence of such a statement, the provision(s) In question, though
not the bill as a whole, shall be void.
Two minor points should be noted at this stage concerning
the above recommendation. First, the reference to a provision which expressly
declares its intention to repeal, alter or vary s.85 anticipates Recommendation
3, which appears on page 21 of this report. Recommendations 2 and 3 must
therefore be read and understood together. Secondly, the reference to
the voidness of the provision operating upon s. 85, but not the remainder
of the bill, anticipates Recommendation 10 appearing on page 33. This
recommendation deals with the whole question of voidness in relation to
bills dealing with the jurisdiction of the Supreme Court, and for this
reason, the matter will not be raised here. Reference should thus be made
to the section of the report accompanying Recommendation 10.
The Committee fully supports the entrenchment by absolute
majority of the jurisdiction of the Supreme Court conferred by s.85, as
involving a recognition of the fundamental constitutional principle of
the Rule of Law. This is the Committee's basic finding, and regardless
of the implementation or rejection of any of the Committee's other recommendations,
this view is the foundation of the Committee's report.
Scrutiny
of Acts and Regulations Committee
©
Parliament of Victoria
|