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Title

Ch1 The Parliament and the role of the House / THE COURTS AND PARLIAMENT / The courts as a check on the power of Parliament

Database

House Practice

Date

01-05-2005

Source

House of Reps

Parl No.

41

Chapter

The Parliament and the role of the House

Chapter No.

Chapter 01

Page

22

Section No.

 

System Id

procedural/practcer/chapter01.20.doc


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Ch1 The Parliament and the role of the House / THE COURTS AND PARLIAMENT / The courts as a check on the power of Parliament



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House of Representatives                                Ch 1                                                 p 22

 

The Parliament and the role of the House / THE COURTS AND PARLIAMENT

 

The courts as a check on the power of Parliament

In the constitutional context of the separation of powers, the courts, in their relationship to the Parliament, provide the means whereby the Parliament may be prevented from exceeding its constitutional powers. Wynes writes:

The Constitution and laws of the Commonwealth being, by covering Cl. V. [5] of the Constitution Act , ‘binding on the Courts, judges and people of every State and of every part of the Commonwealth’, it is the essential function and duty of the Courts to adjudicate upon the constitutional competence of any Federal or State Act whenever the question falls for decision before them in properly constituted litigation. 1

Original jurisdiction in any matter arising under the Cons titution or involving its interpretation has been conferred on the High Court by an Act of Parliament, 2 pursuant to section 76(i) of the Constitution. The High Court does not in law have any power to veto legislation and it does not give advisory opinions 3 but in deciding between litigants in a case it may determine that a legislative enactment is unconstitutional and of no effect in the circumstances of the case. On the assumption that in subsequent cases the court will follow its previous decision (not always the case 4 ) a law deemed ultra vires becomes a dead letter.

The power of the courts to interpret the Constitution and to determine the constitutionality and validity of legislation gives the judiciary the power to determine certain matters directly affecting the Parliament and its proceedings. The range of High Court jurisdiction in these matters can be seen from the following cases : 5

  • Petroleum and Minerals Authority case 6 —The High Court ruled that the passage of the Petroleum and Minerals Authority Bill through Parliament had not satisfied the provisions of section 57 of the Constitution and was consequently not a bill upon which the joint sitting of 1974 could properly deliberate and vote, and thus that it was not a valid law of the Commonwealth. 7

  • McKinlay’s case 8 —The High Court held that (1) sections 19, 24 and 25 of the Commonwealth Electoral Act 1918 , as amended, did not contravene section 24 of the Constitution and (2) whilst sections 3, 4 and 12(a) of the Representation Act 1905 , as amended, remained in their present form, the Representation Act was not a valid law by which the Parliament otherwise provides within the meaning of the second paragraph of section 24 of the Constitution.

  • McKellar’s case 9 —The High Court held that a purported amendment to section 10 of the Representation Act 1905 , contained in the Representation Act 1964 , was invalid because it offended the precepts of proportionality and the nexus with the size of the Senate as required by section 24 of the Constitution.

  • Postal allowance case 10 —The High Court held that the operation of section 4 of the Parliamentary Allowances Act 1952 and provisions of the Remuneration Tribunals Act 1973 denied the existence of an executive power to increase the level of a postal allowance—a ministerial decision to increase the allowance was thus held to be invalid.

    • It should be noted that the range of cases cited is not an indication that either House has conceded any role to the High Court, or other courts, in respect of its ordinary operations or workings. In Cormack v. Cope the High Court refused to grant an injunction to prevent a joint sitting convened under section 57 from proceeding (there was some division as to whether a court had jurisdiction to intervene in the legislative process before a bill had been assented to). The joint sitting proceeded, and later the Court considered whether, in terms of the Constitution, one Act was validly enacted. 11



    W. Anstey Wynes, Legislative, executive and judicial powers in Australia , 5th edn, Law Book Co., Sydney, 1976, p. 30.



    Judiciary Act 1903 , s. 30.



    See In re Judiciary and Navigation Acts , (1921) 29 CLR 257. A Constitution Alteration (Advisory Jurisdiction of High Court) Bill 1983 provided for a referendum to be held on this matter but, although passed by both Houses, it was not submitted to the people.



    E.g. Amalgamated Society of Engineers v. Adelaide Steamship Co. Ltd (Engineers Case) (1920) 28 CLR 129; and Cole v. Whitfield (1998) 165 CLR 360.



    For the High Court’s role as the Court of Disputed Returns see Ch. on ‘Elections and the electoral system’. Cases involving challenges to membership of the Parliament under the Constitution are covered in the Ch. on ‘Members’, and cases involving taxation and some other laws are covered in the Ch. on ‘Financial legislation’.



    Victoria v. Commonwealth (1975) 134 CLR 81.



    See also Ch. on ‘Disagreements between the Houses’ for the cases concerning s. 57.



    Attorney-General (Australia) (ex rel. McKinlay) v. Commonwealth (1975) 135 CLR 1.



    Attorney-General (NSW) (ex rel. McKellar) v. Commonwealth (1978) 139 CLR 527.



    Brown v. West and anor (1990) 169 CLR 195.



    And see G. Moens and J. Trone, Lumb and Moens’ The Constitution of Australia annotate d , 6th edn, Butterworths, Sydney, 2001, pp. 207-13; P. Hanks and D. Cass, Australian constitutional law: material and commentary , 6th edn, Butterworths, 1999, pp. 268-76.