¹ George, Williams, ‘Judicial Review’ in Tony, Blackshield, Michael, Coper and George, Williams (eds), Oxford Companion to the High Court of Australia (Oxford University Press, 2002) 376, 377Google Scholar.

² See, eg, ibid; Geoffrey, Lindell, ‘Duty to Exercise Judicial Review’ in Leslie, Zines (ed), Commentaries on the Australian Constitution (Butterworths, 1977) 150, 186Google Scholar.

³ Although the abandonment of judicial review of legislation after a century of that practice under the Australian Constitution is unlikely, this does not mean of itself that the practice is constitutionally legitimate (although it has been suggested that judicial review might now be justified on the basis of tacit acquiescence: P H, Lane, The Australian Federal System (Law Book, 1972) 913Google Scholar). This paper provides an assessment of the justifications for judicial review of legislation, allowing a determination as to its legitimacy rather than a mere acceptance of its usage.

⁴ Thus, it has been observed that: ‘judicial review represents an attempt by the American Democracy to cover its bet': Edward, S Corwin, ‘Book Review’ (1942) 56 Harvard Law Review 484, 487Google Scholar.

⁵ 5 US (1 Cranch) 137 (1803).

⁶ 4 CLR 356.

⁷ Ibid 358–9.

⁸ For the High Court's treatment of the decision, see below at 24.

⁹ Gerard, Brennan, ‘The Privy Council and the Constitution’ in H P, Lee and George, Winterton (eds), Australian Constitutional Landmarks (Cambridge University Press, 2003) 312, 315Google Scholar. Similarly: ‘its decision was flawed by an elementary misconception of the Australian Constitution and the role it assigns to the courts': Tony, Blackshield and George, Williams, Australian Constitutional Law and Theory: Commentary and Materials (Federation Press, 5th ed, 2010) 139Google Scholar.

¹⁰ James, Thomson, ‘Constitutional Authority for Judicial Review: A Contribution from the Framers of the Australian Constitution’ in Gregory, Craven (ed), The Convention Debates 1891–1898: Commentaries, Indices and Guide (Legal Books, 1986) 173Google Scholar, 201.

¹¹ Thomson, above n 10, 177. See also at 176, 179–83, 185, 187.

¹² Ibid 177.

¹³ The outgoing administration of President John Adams attempted to ‘stack’ Federal courts with Federalist judges, appointing 16 new Circuit Court judges and 42 new Justices of the Peace, the latter being confirmed by the Senate the day before the new President was to be sworn in. The outgoing Secretary of State, John Marshall, signed and sealed the commissions, but was not able to deliver all of them before he swore in (in his new role of Chief Justice) the new President, Thomas Jefferson. William Marbury did not receive his commission and sued the new Secretary of State, James Madison, in an attempt to obtain it. The political atmosphere was tense:

'Everyone in Washington D.C. fully expected John Marshall to accomplish forthwith, through his newly acquired power as Chief Justice of the Supreme Court, what a scant few hours’ time had thwarted him from accomplishing, on behalf of the Federalists, as Secretary of State. As well, it was a widely publicized “secret” that President Jefferson, in anticipation of the clearly expected outcome of Marbury, was preparing impeachment proceedings against Chief Justice Marshall and the rest of the Federalist-appointed Supreme Court bench': Tony, Baker, ‘Marbury v Madison: A Brief Foray Into American Constitutional History: For “Charter-Watchers” and Their Friends’ (1984) 5(9) Ontario Criminal Lawyers’ Association Newsletter 26Google Scholar.

The result defused the political tension: although Marshall CJ found that Marbury was entitled to his commission, the Court ruled unconstitutional the statute empowering it to issue the writ of mandamus to the Secretary of State. Thus, President Jefferson enjoyed a victory over the Federalists because Marbury did not get his commission, but Marshall CJ secured for the Supreme Court the power of judicial review of legislation. (See, eg: Blackshield and Williams, above n 9, 3–4; Sujit, Choudhry and Robert, Howse, ‘Secession: Constitutional Theory and The Quebec Secession Reference’ (2000) 13 Canadian Journal of Law and Jurisprudence 143, 147–8Google Scholar; Ronald D Rotunda and John E Nowak, Treatise on Constitutional Law: Substance and Procedure (West Publishing, 2nd ed, 1992) vol 1, 36–9.)

¹⁴ Marbury v Madison, 5 US (1 Cranch) 137, 176–7 (1803). As more recently expressed: ‘[i]f the limitations on legislative power are to be meaningful, they must be enforced': Anthony, Blackshield, ‘The Courts and Judicial Review’ in Sol, Encel, Donald, Horne and Elaine, Thompson (eds), Change the Rules! Towards a Democratic Constitution (Penguin Books, 1977) 119, 125Google Scholar.

¹⁵ Marbury v Madison, 5 US (1 Cranch) 137, 177 (1803).

¹⁶ This, alone, is not sufficient, because ‘constitutional supremacy … is agnostic on the practical question of which institution is best suited to enforce constitutional provisions': Choudhry and Howse, above n 13, 147.

¹⁷ Marbury v Madison, 5 US (1 Cranch) 137, 177 (1803) [emphasis added].

¹⁸ Ibid 177–8.

¹⁹ Ibid 178.

²⁰ See, eg, Learned, Hand, The Bill of Rights (Harvard University Press, 1958) 1–11Google Scholar; William, Van Alstyne, ‘A Critical Guide to Marbury v Madison’ [1969] Duke Law Journal 1Google Scholar; Choudhry and Howse, above n 13, 147–8. The correctness of Marbury v Madison has never been challenged by the Supreme Court. As early as 1819, it treated the issue as definitively resolved, holding that any question of the constitutional validity of legislation:

'must be decided peacefully, or remain a source of hostile legislation, perhaps of hostility of a still more serious nature; and if it is to be so decided, by this tribunal alone can the decision be made. On the Supreme Court of the United States has the constitution of our country devolved this important duty': McCulloch v Maryland, 17 US (4 Wheat) 316, 400–1 (1819) (Marshall CJ, for the Court).

²¹ ‘Marbury v Madison might never have happened': Transcript of Proceedings, Kable v Director of Public Prosecutions for New South Wales [1995] HCATrans 430 (7 December 1995) (Toohey J).

²² See also Thomson, above n 10, 176.

²³ See William, Michael Treanor, ‘Judicial Review Before Marbury’ (2005) 58 Stanford Law Review 455, 471Google Scholar. See also Gerald, Leonard, ‘Iredell Reclaimed: Farewell to Snowiss's History of Judicial Review’ (2006) 81 Chicago-Kent Law Review 867Google Scholar; Matthew, P Harrington, ‘Judicial Review before John Marshall’ (2003) 72 George Washington Law Review 51Google Scholar.

²⁴ James, Iredell, ‘To the Public’ in Griffith, J McRee (ed), Life and Correspondence of James Iredell (D Appleton, 1858) vol 2, 145, 147Google Scholar.

²⁵ Ibid 148.

²⁶ Saikrishna, B Prakash and John, C Yoo, ‘The Origins of Judicial Review’ (2003) 70 University of Chicago Law Review 887, 928Google Scholar. See also Robert, J Steinfeld, ‘The Early Anti-Majoritarian Rationale for Judicial Review’ in Daniel, Hamilton and Alfred, Brophy (eds), Transformations in American Legal History: Essays in Honor of Professor Morton J Horwitz (Harvard University Press, 2010) 143, 144Google Scholar.

²⁷ Prakash and Yoo, above n 26, 952.

²⁸ Philip, B Kurland and Ralph, Lerner (eds), The Founders’ Constitution (University of Chicago Press, 1987) vol 4, 229Google Scholar.

²⁹ Alexander Hamilton, The Federalist #78 in Kurland and Lerner (eds), above n 28, vol 4, 42.

³⁰ Ibid.

³¹ Ibid 143.

³² Vanhorne's Lessee v Dorrance, 2 US (2 Dall) 304 (1795).

³³ Ibid 308.

³⁴ Ibid 309.

³⁵ Calder v Bull, 3 US 386, 399 (1798).

³⁶ Judicial review of legislation had also been practised in the judicial decisions of seven States prior to Marbury v Madison: Prakash and Yoo, above n 26, 933.

³⁷ It was ‘a highly contentious and “political” case': Wilson v Minister for Aboriginal and Torres Strait Islander Affairs (1996) 189 CLR 1, 45 (Kirby J); referring to: INS v Chadha, 462 US 919, 943 (1983) (Burger CJ, for the majority).

³⁸ Thomson, above n 10, 177.

³⁹ Australian Law Reform Commission, The Judicial Power of the Commonwealth: A Review of the Judiciary Act 1903 and Related Legislation, Report No 92 (2001) [12.1]–[12.2].

⁴⁰ Anthony, Mason, ‘The Role of a Constitution Court in a Federation: A Comparison of the Australian and the United States Experience’ (1986) 16 Federal Law Review 1, 6Google Scholar. Similar statements indicating that judicial review of legislation was intended, or at least assumed, abound. See, eg, Sanford, H Kadish, ‘Judicial Review in the High Court and the United States Supreme Court’ (1959) 2 Melbourne University Law Review 4, 8Google Scholar; Robert, C L Moffat, ‘Philosophical Foundations of the Australian Constitutional Tradition’ (1965) 5 Sydney Law Review 59, 84Google Scholar; Brian, Galligan, ‘Judicial Review in the Australian Federal System: Its Origin and Function’ (1979) 10 Federal Law Review 367, 396Google Scholar; Murray, Gleeson, The Rule of Law and the Constitution: Boyer Lectures 2000 (ABC Books, 2000) 132Google Scholar; Michael Coper, ‘Court's role in Democracy’ in Blackshield, Coper and Williams (eds), above n 1, 203, 203; Williams, above n 1, 377; Blackshield and Williams, above n 9, 8.

⁴¹ Australian Communist Party v Commonwealth (1950) 83 CLR 1, 262 (Fullagar J)(‘Communist Party Case’). The Oxford English Dictionary relevantly defines axiomatic to mean ‘self-evident; indisputably true’ and defines an axiom to be ‘a well-established or universally-conceded principle': J A, Simpson and E S C, Weiner, The Oxford English Dictionary (Clarendon Press, 2nd ed, 1989) 838Google Scholar. The Macquarie Dictionary relevantly defines axiomatic to mean ‘self-evident’ and defines an axiom to be ‘a recognised truth’ and ‘an established and universally accepted principle or rule': Arthur, Delbridge et al, The Macquarie Dictionary (Macquarie University, 2nd ed, 1991) 117Google Scholar.

⁴² Subsequent adoptions of Fullagar J's approach include: Victoria v Commonwealth and Hayden (1975) 134 CLR 338, 379 (Gibbs J); Harris v Caladine (1990) 172 CLR 84, 135 (Toohey J); Commonwealth v Mewett (1996) 191 CLR 471, 547 (Gummow and Kirby JJ), 497 (Dawson J); Christos, Mantziaris, ‘The Executive — A Common Law Understanding of Legal Form and Responsibility’ in Robert, French, Geoffrey, Lindell and Cheryl, Saunders (eds), Reflections on the Australian Constitution (Federation Press, 2003) 125, 136Google Scholar; Henry, Burmester, ‘The Presumption of Constitutionality’ (1983) 13 Federal Law Review 277, 284Google Scholar.

⁴³ Truth About Motorways Pty Ltd v Macquarie Infrastructure Investment Management Ltd (2000) 200 CLR 591, 633 [111] (Gummow J).

⁴⁴ Thomson, above n 10, 179. The evolution of s 75(v) is described in detail in: David Jones Finance and Investments v Federal Commissioner of Taxation (1991) 99 ALR 447, 454–7 (Morling and French JJ); Ruddock v Vadarlis (2001) 183 ALR 1 (Black CJ and French J).

⁴⁵ Bernhard, Wise, The Making of the Australian Commonwealth (Longmans, Green & Co, 1913) 74Google Scholar.

⁴⁶ John, M Williams, The Australian Constitution: A Documentary History (Melbourne University Press, 2005) 451Google Scholar (Sydney 1891), 601 (Adelaide 1897), 784 (Sydney 1897).

⁴⁷ Official Record of the Debates of the Australasian Federal Convention, Melbourne, 31 January 1898, 349.

⁴⁸ Ibid 320–1 (Edmund Barton), 321 (Isaac Isaacs).

⁴⁹ Ibid 321 (Isaac Isaacs).

⁵⁰ Thomson, above n 10, 179; J A, La Nauze, The Making of the Australian Constitution (Melbourne University Press, 1972) 234Google Scholar.

⁵¹ Official Record of the Debates of the Australasian Federal Convention, Melbourne, 4 March 1898, 1885.

⁵² There is clearly a relationship between judicial review of legislation and judicial review of executive action (see, eg: Williams, above n 1, 376). However, their justifications under the Australian Constitution differ because of the express provision for judicial review of executive action in s 75(v). Judicial review of executive action is, therefore, frequently justified both on the basis of s 75(v) and by the Marbury v Madison expression of the judicial role. Thus, in Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476, Gaudron, McHugh, Gummow, Kirby and Hayne JJ held that 's 75(v) introduces into the Constitution of the Commonwealth an entrenched minimum provision of judicial review': at 513; but continued:

'Such jurisdiction exists to maintain the federal compact by ensuring that propounded laws are constitutionally valid and ministerial or other official action lawful and within jurisdiction. In any written constitution, where there are disputes over such matters, there must be an authoritative decision-maker. Under the Constitution of the Commonwealth the ultimate decision-maker in all matters where there is a contest, is this Court. The Court must be obedient to its constitutional function. In the end, pursuant to s 75 of the Constitution, this limits the powers of the Parliament or of the Executive to avoid, or confine, judicial review': at 514.

In these passages, their Honours rested judicial review of administrative action on the twin pillars of s 75(v) and the judicial role argument from Marbury v Madison. See also: Plaintiff M61/2010E v Commonwealth (2010) 243 CLR 319, 355 (French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ); Stephen, Gageler, ‘The Underpinnings of Judicial Review of Administrative Action: Common Law or Constitution’ (2000) 28 Federal Law Review 303, 310Google Scholar; W M C, Gummow, ‘The Permanent Legacy’ (2000) 28 Federal Law Review 177, 180–1Google Scholar.

The relationship between Marbury v Madison and s 75(v) has long been recognised: Ah Yick v Lehmert (1905) 2 CLR 593, 609 (Barton J); Tramways Case [No 1] (1914) 18 CLR 54, 82 (Gavan Duffy and Rich JJ); Collins v Charles Marshall Pty Ltd (1955) 92 CLR 529, 544 (Dixon CJ, McTiernan, Williams, Webb, Fullagar and Kitto JJ); Deputy Commissioner of Taxation v Richard Walter Pty Ltd (1994) 183 CLR 168, 179 (Mason CJ), 204 (Deane and Gaudron JJ); Truth About Motorways Pty Ltd v Macquarie Infrastructure Investment Management Ltd (2000) 200 CLR 591, 633 [111] (Gummow J); and Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82, 138–9 (Hayne J).

In A-G (NSW) v Quin (1990) 170 CLR 1, Brennan J observed that: ‘[t]he essential warrant for judicial intervention is the declaration and enforcing of the law … that is the characteristic duty of the judicature as the third branch of government': at 35; and quoted from Marbury v Madison: ‘The duty and the jurisdiction of the courts are expressed in the memorable words of Marshall CJ in Marbury v Madison: ‘It is, emphatically, the province and duty of the judicial department to say what the law is'': at 35–6. This link has been approved on many subsequent occasions: Re Minister for Immigration and Multicultural Affairs; Ex parte Abebe (1999) 197 CLR 510, 560, 579 (Gummow and Hayne JJ); Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611, 652 (Gummow J); Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323, 348 (McHugh, Gummow and Hayne JJ); Corporation of the City of Enfield v Development Assessment Commission (2000) 199 CLR 135, 153–4 (Gleeson CJ, Gummow, Kirby and Hayne JJ).

However, the judicial review of legislation under the Australian Constitution, unaffected by s 75(v), must be justified by the Marbury v Madison description of the judicial role alone.

⁵³ An alternative historical justification, that judicial review of legislation was well established in the Australian Colonies, has been frequently advanced. As Chief Justice Gleeson noted (extra-judicially): ‘From the earliest days of European settlement, Australians have been accustomed to governments of limited authority, and to judicial power to decide the limits': Murray Gleeson, ‘Legality — Spirit and Principle’ (Lecture delivered as the 2nd Magna Carta Lecture, New South Wales Parliament House, 20 November 2003) <http://www.hcourt.gov.au/assets/publications/speeches/former-justices/gleesoncj/cj_20nov.html> and ‘[t]he enactments of Australian colonial legislatures were frequently scrutinised for validity, both by the Supreme Courts of the respective colonies and by the Privy Council': Gleeson, above n 40, 132–3. Indeed, Selway and Williams placed considerable weight on the practice of judicial review of Colonial legislation as the basis for judicial review of Commonwealth legislation by the High Court in the first 50 years of the Australian Commonwealth: Bradley, Selway and John, M Williams, ‘The High Court and Australian Federalism’ (2005) 35 Publius 467, 474Google Scholar. Judicial review of legislation was certainly well-known in the Australian Colonies. Moreover, it was the over-zealous judicial review of legislation by Justice Benjamin Boothby in South Australia that led to numerous crises and eventually the Colonial Laws Validity Act 1865 (Imp) (see, eg: John, McLaren, Dewigged, Bothered and Bewildered: British Colonial Judges on Trial from 1800–1900 (University of Toronto Press, 2011) 190–216Google Scholar). However, as Thomson points out, this extraordinary history (which includes other instances of Colonial uproar over judicial invalidation of legislation) was largely ignored in the Convention Debates: Thomson, above n 10, 177–8. Although the historical experience can justify the existence of judicial review of legislation, the focus of this paper is on the justifications for the institution. Moreover, the situation in the Colonies is not entirely analogous to that under the Australian Constitution.

⁵⁴ Barton told the Convention that ‘it was scarcely wise of us to leave it out’ and ‘we came to rather a hasty conclusion upon that matter': Official Record of the Debates of the Australasian Federal Convention, Melbourne, 4 March 1898, 1875 (Edmund Barton).

⁵⁵ Ibid.

⁵⁶ James, Bryce, The American Commonwealth (Macmillan, 2nd rev ed, 1891)Google Scholar. See, eg: John, Williams, ‘The Emergence of the Commonwealth Constitution’ in H P, Lee and George, Winterton (eds), Australian Constitutional Landmarks (Cambridge University Press, 2003) 1Google Scholar, 14, 24–5; La Nauze, above n 50, 18.

⁵⁷ Bryce, above n 56, vol 1, 237.

⁵⁸ Ibid 238.

⁵⁹ Ibid 241–2.

⁶⁰ See, eg: Haig, Patapan, ‘A Return to Dicey? The Philosophical Foundations of the High Court's Implied Rights Jurisprudence’ in Charles, Sampford and Kim, Preston (eds), Interpreting Constitutions: Theories, Principles and Institutions (Federation Press, 1996) 146Google Scholar, 147–9. Patapan refers to Menzies’ statement that he had been ‘brought up on the fundamental constitutional studies of A V Dicey and Lord Bryce': Robert, Menzies, Central Power in the Australian Commonwealth (University Press of Virginia, 1967) 2Google Scholar.

⁶¹ A V, Dicey, Lectures Introductory to the Study of the Law of the Constitution (MacMillan, 1885) 132Google Scholar. See also at 152.

⁶² Ibid 134–46.

⁶³ Ibid 146.

⁶⁴ Ibid 149.

⁶⁵ Ibid 160.

⁶⁶ Ibid 161. In the note on Australian Federalism that he added to his last edition in 1915, Dicey stressed the institution of judicial review of legislation and its link to the primacy of the judiciary in the interpretation of the Australian Constitution:

'That this duty is laid upon the Courts is not indeed expressly stated in the Constitution of the Commonwealth, any more than in the Constitution of the United States; but no English lawyer can doubt that the Courts, and ultimately the Federal Supreme Court, are intended to be the interpreters, and in this sense the protectors of the Constitution': A V, Dicey, Introduction to the Study of the Law of the Constitution (MacMillan, 8thed, 1915) 531Google Scholar.

⁶⁷ Richard, Chaffey Baker, A Manual of Reference to Authorities for the Use of the Members of The National Australasian Convention (W K Thomas, 1891) 127Google Scholar.

⁶⁸ Ibid.

⁶⁹ Robert, Garran, The Coming Commonwealth: An Australian Handbook of Federal Government (Angus and Robertson, 1897) 23Google Scholar.

⁷⁰ Ibid 25.

⁷¹ It has been noted that these texts provide analysis of ‘a Constitution in pristine condition': John, M Williams, ‘Introduction’ in Andrew, Inglis Clark, Studies in Australian Constitutional Law (Maxwell, 1901, 1997 reprint) viiGoogle Scholar.

⁷² William, Harrison Moore, The Constitution of the Commonwealth of Australia (John Murray, 1902) 236Google Scholar.

⁷³ Andrew, Inglis Clark, Studies in Australian Constitutional Law (Charles F Maxwell, 1901) 3–4Google Scholar.

⁷⁴ John, Quick and Robert, Randolph Garran, The Annotated Constitution of the Australian Commonwealth (Angus and Robertson, 1901) 791Google Scholar.

⁷⁵ Ibid 346.

⁷⁶ Baker, above n 67, 125. This same objection was made, but rejected, in the Convention Debates when Frederick William Holder sought to restrict judicial review of legislation on the basis of an objection that ‘over everything is the High Court': Official Record of the Debates of the Australasian Federal Convention, Melbourne, 1 March 1898, 1718 (Frederick William Holder). See below n 99.

⁷⁷ Baker, above n 67, 125–6; citing Bryce, above n 56, 348.

⁷⁸ Baker, above n 67, 126.

⁷⁹ Official Record of the Debates of the Australasian Federal Convention, Sydney, 6 March 1891, 96 (Edmund Barton).

⁸⁰ Baker, above n 67, 128.

⁸¹ Official Report of the National Australasian Convention Debates, Adelaide, 20 April 1897, 952 (Edmund Barton).

⁸² Ibid 950 (Josiah Symon).

⁸³ Official Report of the National Australasian Convention Debates, Adelaide, 19 April 1897, 940 (William Trenwith).

⁸⁴ Garran, above n 69, 28. Similar expressions remain in use today: the High Court has been described as the ‘defender of the Constitution': David Jackson, ‘Internationalisation of Rights and the Constitution’ in French, Lindell and Saunders (eds), above n 41, 105, 108.

⁸⁵ Garran, above n 69, 28.

⁸⁶ Ibid 65–6.

⁸⁷ Ibid 87.

⁸⁸ Ibid 77, quoting Dicey, above n 61, 156.

⁸⁹ Garran, above n 69, 153.

⁹⁰ Inglis Clark, above n 73, 3–4.

⁹¹ Moore, above n 72, 233.

⁹² Ibid 236.

⁹³ Marbury v Madison, 5 US (1 Cranch) 137, 177 (1803).

⁹⁴ Quick and Garran, above n 74, 725.

⁹⁵ Ibid 791.

⁹⁶ John, A Cockburn, Australian Federation (Horace Marshall & Son, 1901) 28–9Google Scholar. See also at 66.

⁹⁷ Official Record of the Debates of the Australasian Federal Convention, Melbourne, 28 January 1898, 283 (Isaac Isaacs).

⁹⁸ See also Inglis Clark, above n 73, 6, 15–16; Cockburn, above n 96, 18–19; Official Record of the Debates of the Australasian Federal Convention, Melbourne, 28 January 1898, 275 (John Downer). Similarly, Deakin's Second Reading speech on the Judiciary Act 1903 (Cth): the High Court would be the ‘organ of the national life which preserving the union is yet able from time to time to transfuse into it the fresh blood of the living present': Commonwealth, Parliamentary Debates, House of Representatives, 18 March 1902, 10967 (Alfred Deakin).

⁹⁹ Confirmation from the historical record of the Framers’ intent that there would be judicial review of legislation is given by their rejection of two proposals made for its restriction. Frederick William Holder proposed a s 121A to refer laws held unconstitutional to referendum (Official Record of the Debates of the Australasian Federal Convention, Melbourne, 1 March 1898, 1717–21, 2 March 1898, 1723–32, and see Thomson, above n 10, 184), and John Hannah Gordon proposed a s 74A to permit laws to be declared ultra vires only in actions between a State and the Commonwealth (Official Record of the Debates of the Australasian Federal Convention, Melbourne, 1 March 1898, 1679–90, and see Thomson, above n 10, 185). As Sir Owen Dixon pointed out, these proposals ‘were dismissed with scant consideration': Owen, Dixon, ‘Marshall and the Australian Constitution’ in Severin, Woinarski (ed), Jesting Pilate, and Other Papers and Addresses (Law Book, 1965) 175Google Scholar. The discussion was limited to strong rejections being voiced; Holder's proposal was withdrawn in the face of this opposition (Official Record of the Debates of the Australasian Federal Convention, Melbourne, 2 March 1898, 1732), and Gordon's proposal was rejected without being put to a formal vote (ibid, 1 March 1898, 1690). The rejection of any limitation on judicial review of legislation under the Australian Constitution evidences a clear intention that this institution would exist.

¹⁰⁰ Commonwealth of Australia Constitution Act 1900 (Imp) 63 & 64 Vict, c 12, s 5.

¹⁰¹ See, eg, ‘… the existence in the Constitution of Chap. III and the nature of the provisions it contains make it clear that no resort can be made to judicial power except under or in conformity with ss 71–80': R v Kirby; Ex parte Boilermakers’ Society of Australia (1956) 94 CLR 254, 269 (Dixon CJ, McTiernan, Fullagar and Kitto JJ) ('Boilermakers’) (emphasis added); the identification of the question as being whether there was ‘conflict’ between the statutory provisions ‘and Ch III of the Constitution’ in Chu KhengLim v Minister for Immigration, Local Government and Ethnic Affairs (1992) 176 CLR 1, 29 (Brennan, Deane and Dawson JJ); ‘there is no necessary inconsistency with the separation of powers mandated by Ch III of the Constitution if non-judicial power is vested in individual judges detached from the court they constitute': Grollo v Palmer (1995) 184 CLR 348, 363 (Brennan CJ, Deane, Dawson and Toohey JJ) (emphasis added); ‘it is implicit in the terms of Ch III of the Constitution … that a court capable of exercising the judicial power of the Commonwealth be and appear to be an independent and impartial tribunal': North Australian Aboriginal Legal Aid Service Inc v Bradley (2004) 218 CLR 146, 163 (McHugh, Gummow, Kirby, Hayne, Callinan and Heydon JJ) (emphasis added); ‘Ch III requires that there be a body fitting the description “the Supreme Court of a State“': Forge v Australian Securities and Investment Commission (2006) 228 CLR 45, 76 (Gummow, Hayne and Crennan JJ) (emphasis added).

¹⁰² Thomson, above n 10, 194.

¹⁰³ Moore, above n 72, 236.

¹⁰⁴ Baker, above n 67, 128.

¹⁰⁵ Official Report of the National Australasian Convention Debates, Adelaide, 20 April 1897, 952 (Edmund Barton). See above n 81 and accompanying text.

¹⁰⁶ Ibid.

¹⁰⁷ Quick and Garran, above n 74, 725.

¹⁰⁸ Commonwealth, Parliamentary Debates, House of Representatives, 18 March 1902, 10966–7 (Alfred Deakin). See also Garran, above n 69, 23–4.

¹⁰⁹ Kingston v Gadd (1901) 27 VLR 417.

¹¹⁰ Ibid 422–5.

¹¹¹ Ibid 420–2.

¹¹² Ibid 426 (Williams J).

¹¹³ Ibid 428 (Holroyd J).

¹¹⁴ Ibid 430 (Hood J) (emphasis added).

¹¹⁵ Cf ‘There is no equivalent single decision in Australia that establishes the authority of the High Court to review legislation for unconstitutionality': Williams, above n 1, 377.

¹¹⁶ Kingston v Gadd (1901) 27 VLR 417, 428 (Holroyd J).

¹¹⁷ Kingston v Gadd was appealed to the Privy Council in Peninsular and Oriental Steam Navigation Co v Kingston [1903] AC 471, but the report records no argument regarding judicial review of legislation, and that issue is not addressed in their Lordships’ opinion.

¹¹⁸ Federated Amalgamated Government Railway and Tramway Service Association v New South Wales Railway Traffic Employes Association (1906) 4 CLR 488, 533–4 (Griffith CJ, Barton and O'Connor JJ) ('Railway Servants’ Case’).

¹¹⁹ (1907) 4 CLR 1087.

¹²⁰ The joint judgment is notable for its disparaging treatment of the Privy Council's earlier decision: ibid 1106, 1108, 1117 (Griffith CJ, Barton and O'Connor JJ).

¹²¹ Ibid 1125.

¹²² Ibid.

¹²³ A-G (NSW) ex rel Tooth and Co Ltd v Brewery Employés Union of New South Wales (1908) 6 CLR 469, 553–4 (Isaacs J) ('Union Labels Case’).

¹²⁴ Ibid 590 (Higgins J). These remarks were quoted with approval in Deputy Federal Commissioner of Taxation (New South Wales) v W R Moran Pty Ltd (1939) 61 CLR 735, 773 (Starke J).

¹²⁵ Waterside Workers’ Federation of Australia v Gilchrist, Watt and Sanderson Ltd (1924) 34 CLR 482, 551 (Starke J); quoting from: Adkins v Children's Hospital, 261 US 525, 544 (1923) (Sutherland J, for the Court). See also A-G (Vic) ex rel Victorian Chamber of Manufactures v Commonwealth (1935) 52 CLR 533, 566 (Starke J).

¹²⁶ D'Emden v Pedder (1904) 1 CLR 91, 117–118 (Griffith CJ, Barton and O'Connor JJ).

¹²⁷ Australian Communist Party v Commonwealth (1950) 83 CLR 1 ('Communist Party Case’). See also Bonser v La Macchia (1968) 122 CLR 177, 217 (Windeyer J); Kartinyeri v Commonwealth (1998) 195 CLR 337, 381 (Gummow and Hayne JJ); Gleeson, above n 40, 84.

¹²⁸ Communist Party Case (1950) 83 CLR 1, 262–3 (Fullagar J).

¹²⁹ Ibid 262 (Fullagar J).

¹³⁰ Williams, above n 1, 378.

¹³¹ Dixon, above n 99, 174–5.

¹³² The link between judicial review and federalism is important to acknowledge. See, eg, ‘The position and constitution of the judicature could not be considered accidental to the institution of federalism: for upon the judicature rested the ultimate responsibility for the maintenance and enforcement of the boundaries within which governmental power might be exercised and upon that the whole system was constructed': Boilermakers (1955) 94 CLR 254, 276 (Dixon CJ, McTiernan, Fullagar and Kitto JJ). See also A-G(Cth) v The Queen (1957) 95 CLR 529, 540–1; Mutual Pools and Staff Pty Ltd v Commonwealth (1993) 179 CLR 155, 213; Singh v Commonwealth (2004) 222 CLR 322, 330 (Gleeson CJ); Galligan, above n 40, 367–71; William, R Lederman, Continuing Canadian Constitutional Dilemmas: Essays on the Constitutional History, Public Law and Federal System of Canada (Butterworths, 1981) 281Google Scholar; Gleeson, above n 40, 133.

There is also a link between judicial review of legislation and the separation of powers (see, eg, ‘The object of the constitution was to establish three great departments of government; the legislative, the executive, and the judicial departments. The first was to pass laws, the second to approve and execute them, and the third to expound and enforce them': Martin v Hunter's Lessee, 14 US (1 Wheat) 304, 329 (1816) (Story J); Anthony, Mason, ‘Judicial Review: A View from Constitutional and Other Perspectives’ (2000) 28 Federal Law Review 331, 331Google Scholar). A link has also been drawn to the concept of the rule of law: see, eg, Gageler, above n 52, 309; Bradley, Selway, ‘The Principle Behind Common Law Judicial Review of Administrative Action — The Search Continues’ (2002) 30 Federal Law Review 217, 232Google Scholar.

However, the critical point for judicial review of legislation (and thus for this article) is that issues such as federalism, separation of powers and the rule of law are subsumed within the broader point made in Marbury v Madison regarding the primacy of the judiciary in the interpretation of the Constitution.

¹³³ Boilermakers (1955) 94 CLR 254, 267 (Dixon CJ, McTiernan, Fullagar and Kitto JJ).

¹³⁴ Ibid 267–8.

¹³⁵ See, eg, Victoria v Commonwealth (1975) 134 CLR 338, 379–80 (Gibbs J); R v Toohey; Ex parte Northern Land Council (1980) 151 CLR 170, 229–30 (Murphy J); Commonwealth v Mewett (1996) 191 CLR 471, 545–547 (Gummow and Kirby JJ); see also at 497 (Dawson J). See also Residual Assco Group Ltd v Spalvins (2000) 202 CLR 629, 656 (Kirby J).