¹ As it has always been assumed in Australian Constitutional Law that laws which go beyond the limits of Commonwealth power are void ab initio, the concept of invalidity and the justification for it have not been analysed in any great detail in the cases or the scholarly literature. However, there are scattered references to the doctrine in the cases: eg the judgments of Latham CJ in Riverina Transport Pty Ltd v Victoria (1937) 57 CLR 327, 341-2, and Arthur Yates and Company Pty Ltd v Vegetable Seeds Committee (1945) 72 CLR 37, 64; and those of Dixon Jin James v Commonwealth (1939) 62 CLR 339, 361-362 and, on the general implications of limits on power, in R v Vizzard, ex parte Hill (1933) 50 CLR 30, 60-61. Although the cases do not contain a comprehensive analysis of invalidity, its implications have been worked out as the need has arisen; eg the Constitution confers on individuals an immunity from laws which are invalid, but does not confer any right of action: see James v SA (1927) 40 CLR 1, 41; James v Commonwealth (1939) 62 CLR 339, 361-362; Riverina Transport Pty Ltd v Victoria (1937) 57 CLR 327, 341-342. Later legislation cannot legalise acts done in reliance on invalid legislation: Antill Ranger and Company Pty Ltd v Commissioner for Motor Transport (1955) 93 CLR 83, on appeal in (1956) 94 CLR 177; and finally the Court, not Parliament, is the ultimate arbiter of the scope of the Parliament's powers, even where the scope of those powers depends upon opinions as to matters of fact: see Australian Communist Party v Commonwealth (1951) 83 CLR 1.

² The nature and the extent of the interference with private interests required to found an action was considered early in Attorney-General (NSW) v Brewery Employees Union of New South Wales (The Union Label Case) (1908) 6 CLR 469. Since then, it has been recognized that if there is no unlawful interference with the complainant's private interests even if there has been unconstitutional acts which caused, at least in part, the complainant to suffer loss, the complainant has no right to recovery; McClintock v Commonwealth (1947) 75 CLR 1, 19 per Latham CJ and James v Commonwealth (1939) 62 CLR 339,361 per Dixon, J. The relevant principles are considered in detail by GD S Taylor, “Standing to Challenge the Constitutionality of Legislation” in LA Stein (ed) Locus Standi (1979) 143-172Google Scholar.

³ No action has as yet been brought by an individual to challenge the validity of legislation enacted under s 57. However, it is clear that, if s 57 is justiciable, there are no legal barriers to such actions. Although the two challenges to the validity of legislation based on s 57 which were brought in 1975 (Victoria v Commonwealth (The PMA Case) (1975) 7 ALR 1, and Western Australia v Commonwealth (Territorial Senators Case) (1975) 7 ALR 159) were brought by states, it is clear that as the challenges were to the validity of the legislation, they could have been brought by individuals who were affected by the legislation to an extent greater than was the ordinary member of the public.

⁴ In America, where for many years judicial review was based on the notion that the Constitution was a grant of power by the people to government which the government could not exceed in its dealing with the people (see Marbury v Madison (1803) I Cr 137, 176-178; 2 L Ed 73-74) the idea that states are in the same position as individuals was carried to its logical conclusion. States were not permitted to sue the federal government merely to prevent that government from invading their areas of competence: Massachusetts v Mellon (1923) 262 US 447, 484-485; 67 L Ed 1078, 1084.

⁵ Australian examples in “”.hich standing would have been available on this ground include Melbourne Corporation v Commonwealth (The State Banking Case) (1947) 74 CLR 31 and New South Wales v Commonwealth (The Garnishee Case) (1932) 46 CLR 155. In the former case, the Commonwealth attempted to stop the States from banking with the banks of their choice, while in the latter the Commonwealth sought to take steps to enforce a debt owed to it by New South Wales.

⁶ In the United States where the States could not sue to protect their constitutional position (see note 5 above), it has always been accepted that a State has standing to sue the federal government or its officials where that government has invaded the State's private rights or interfered with its material interests: Missouri v Holland (1920) 252 US 416; New York v United States (1946) 326 US 572, 90 L Ed 326. For a general discussion of the standing of States to sue the federal government in the US, see L H Tribe, American Constitutional Law (Foundation Press Inc Mineola New York, 1978) 101-102; CJ Antieau, Modern Constitutional Law Vol II The States and the Federal Government (Lawyers Co-operative Publishing Co, Rochester, New York, 1969) 664-666.

⁷ Gibbs J (as he then was) summed up the attitude of the High Court most clearly in Victoriav Commonwealth (The AAP Case) (1975) 134 CLR 338 when he said at p 381-

In my opinion it is involved in the very nature of the Constitution that either the Commonwealth or a State should have standing to institute legal proceedings where the other has exceeded its constitutional authority. It seems to me that the Constitution, in defining the powers of the respective bodies politic, assumes that a remedy will be available to one of those bodies if another trespasses beyond the boundaries within which the Constitution has confined it. and again at 383 -

I would base my conclusion [that Victoria had standing] on the fact that the Constitution, by defining the limits inter se of the constitutional powers of the Commonwealth and those of any State or States, must be taken to have given to the Commonwealth and to each State a right to the observance of the constitutional limits and a standing to obtain such remedy as is necessary to secure their observance.

⁸ Attorney-General (NSW) v Brewery Employees Union of New South Wales (Union Label Case) (1908) 6 CLR 469, especially the judgment of Isaacs J and to a lesser extent that of Barton J at 557-558 and 520 respectively, and Commonwealth v Queensland (1920) 29 CLR 1, 12 per Isaacs and Rich JJ.

⁹ In the early cases there was some dispute as to whether the action was brought by the Commonwealth or the State itself to protect its jurisdictional competence or whether it was brought by the Attorneys-General as parens patriae to protect the private rights of his citizens from unlawful interference by another government. In the Union Label Case Griffith CJ and O'Connor J opted for the latter view: (1908) 6 CLR 469, 499 and 550-551 respectively, as did Dixon J in Attorney-General (Victoria) v The Commonwealth (The Pharmaceutical Benefits Case) (1945) 71 CLR 237 at 272. The latter view may be seen as an attempt to allow the States and the Commonwealth standing through their Attorney-General without conceding that the Constitution does more than limit the powers which the government may exercise over the people. However, very early on it must have become obvious that it was a fiction because the action was brought not to protect the right of the people, but to protect the constitutional position of the Commonwealth or the State as the case may be: see Commonwealth v Queensland (1920) 29 CLR 1, 12 per Isaacs and Rich JJ. See also Williams Jin the Pharmaceutical Benefits Case (1945) 71 CLR 237, 276. Today it cannot be denied that the States and the Commonwealth sue to protect their own constitutional position rather than the rights of their citizens, because there has been an increasing tendency to allow them, as well as their Attorneys-General, standing: Victoria v Commonwealth (the AAP Case) (1975) 134 CLR 338, 365-366, 380-383 and 401-402. per Barwick CJ, Gibbs and Mason JJ respectively; WA v Commonwealth (The Territorial Senators Case) (1975) 7 ALR 159, 175 and 226 per Barwick CJ and Murphy J respectively; Attorney-General (Cth); ex rel McKinlay v Commonwealth (the Voter's Case). (1975) 135 CLR 1, 26-27 and 53-54 per Barwick CJ and Gibbs J respectively. See also Victoria v Commonwealth (1975) 7 ALR I where the majority allowed Victoria to bring the action in its own name. However, none of these cases contain an analysis of the nature of the State's right to standing or of the relationship between State standing and individual standing.

¹⁰ This conception of the rule of law received its classical expos1t10n in A V Dicey Introduction to the Study of the Law of the Constitution, “Part II - The Rule of Law'', especially Chapter 4, “The Rule of Law: its nature and general applications”. (All references to Dicey in this article will be to the 9th edition.)

¹¹ Ibid 193-194.

¹² Ibid.For a detailed analysis of the nature of the interests required to gain standing to challenge the validity of official action, see the collection of essays in LA Stein (ed) Locus Standi (1979) especially those in “Part 2 Locus Standi and Remedies”. Recently in Australia as in other jurisdictions, there has been a tendency to liberalise the law of standing, first, to take account of the fact that the Attorney-General cannot be relied upon to challenge invalid acts of his government and second, to protect interests other than those of a proprietory or financial nature, see The Australian Conservation Foundation v Commonwealth (1980) 28 ALR 257; Onus v Alcoa (1980) 36 ALR 425.

¹³ Traditionally, individuals have been denied standing simply to protect that constitutional interest in order to prevent a multiplicity of actions. That task was left to the Attorney-General in his role as parens patriae.

¹⁴ The general rule was set out by Buckley J in Boyce v Paddington Borough Council [1903) I Ch 109, 114 in the following terms-

A plaintiff can sue without joining the Attorney-General in two cases: first, where the interference with the public right is such as that some private right of his is at the same time interfered with ... and, secondly, where no private right is interfered with, but the plaintiff, in respect of his public right, suffers special damage peculiar to himself from the interference with the public right.

For an analysis of this rule, see Haydon, J D “Injunctions and Declarations” in Stein op cit note 12, pp 38-40 and 45-54.Google Scholar

¹⁵ Many, if not all, would have been familiar with the distinction between a delegate, who may receive instructions from his constituents, and a representative, who may not receive such instruction because he is sent to exercise his own skill and judgment in the interests of those whom he represents. The distinction was well understood a hundred years before the Constitution was drafted; see Burke's Speech to the Electors of Bristol, Works (Henry C Bohn London 1845) Vol 2 pp 11-14. Not only was the distinction well understood, it was also basic to the system of representative responsible government which existed at the time and which was adopted by the draftsmen of the Constitution; see A H Birch Representation (1971) Ch 3, especially “The Whig Theory of Representation” pp 37-40.

¹⁶ For example the voting rights of South Africa's Cape Coloured were protected by constitutional provisions which prevented their alteration or abolition except by a 2/3 majority of both houses of the parliament sitting together, see the South Africa Act which bys 152 provided this protection to the voting rights granted to Coloureds by s 35.

¹⁷ Carole Pateman Participation and Democratic Theory (1970), M fagence Citizen Participation in Planning (1977) Ch l2 “The Political Philosophy of Democracy and Participation” pp 20-49.

¹⁸ Jones, MA, Local Government and the People: Challenges for the Eighties (1981), Ch 12 “Disillusionment with Local Democracy” especially pp 204-212Google Scholar.

¹⁹ This theory of the Constitution, I suggest, lies behind the views of those who regard the Constitution as deriving its validity from enactment by the Imperial Parliament as well as the views of those who base its validity on adoption by the people. When the British Parliament enacted the Constitution, it was able to validate it because it was able to represent the people of Australia as well as because it was the supreme legislative authority for the Empire. Its imprimature was needed because it was felt that the Constitution affected the interests of the whole of the Empire, as well as those of Australia. It is worthy of note that the only changes required by that Parliament were changes designed to protect Imperial interests especially changes to ensure that the Privy Council remained as the ultimate court of appeal; see J A La Nauze The Making of the Australian Constitution (1972) Ch 16 “Clause 74, 1900, London”.

²⁰ For an analysis of the mandate theory see A N Birch op cit note 15 above, 97-100.

²¹ Each Parliament is sovereign and may undo the work of its predecessors; see , Hood Phillips Constitutional and Administrative Law (6th ed 1978) pp 50-88Google Scholar; Wade and Phillips Constitutional Law (9th ed, edited by A W Bradley). Doubts have been expressed about the absolute nature of the doctrine that the British Parliament cannot bind its successors. In particular it has been argued that Parliament may be able to bind itself as to the procedures it will use in the future; see RF V Heuston “Sovereignty” in AG Guest (ed) Oxford Essays in Jurisprudence (1961); de Smith Constitutional and Administrative Law (2nd ed 1973) at 88-92; 6 Marshall Constitutional Theory (1971) at 53; J W Gough Fundamental Law in English Constitutional History (revised edition 1971) at 212; and Dixon “The Common Law as an Ultimate Constitutional Foundation” (1957) 31 ALJ 240, 244; and Winterton “The British Grundnorm: Parliamentary Supremacy Re-Examined” (1976) 92 LQR 591.

²² This is equally true both of the old, unreformed House of Commons, which consisted of two knights from each shire and two citizens from each borough and of the modern Commons, which is elected from constituencies which are essentially local areas united by geography and other ties such as common interest.

²³ Birch op cit note 15 above considers this theory in more detail at pp 37-40.

²⁴ The classic exposition of this theory is that of Edmund Burke, in his “Speech to the Electors of Bristol” op cit note 15 vol 2 pp 11-14. In that speech he dealt with some of the implications of the Whig Theory of Representation, especially the idea that as each member was responsible to the whole people, not just his constituents, his constituents were not entitled to instruct him as to how he should vote. Instead, he was elected to make his own judgment of what the national interest required on all of the issues which came before him.

²⁵ This led to the theory of virtual representation used to oppose reform before 1830; see Birch op cit note 15 above pp 51-52.

²⁶ Maitland, F W The Constitutional History of England (1931) 251-275Google Scholar, especially 251-258 and 267-275; and Keir, D L The Constitutional History of Modern Britain since 1485 (9th ed 1969)Google Scholar Ch IV “The Decline and Fall of Conciliar Government, 1603-1660”.

²⁷ On this view, the Whig Theory of Representation combined with the notion of the sovereign Parliament is a radical, almost revolutionary theory in which each Parliament is a constituent assembly, entrusted by the people with unlimited power. As with all things British, its radicalism is masked by conservatism, so that the people are represented in their various estates, King, Lords and Commons. However, with the ascendency of the Commons, the radical populist elements have prevailed.

²⁸ The Labor Party in particular has traditionally regarded the Constitution as a barrier to be overcome before its policies can be implemented; see eg Whitlam, E G “The Constitution versus Labor” in Labor and the Constitution (Victorian Fabian Society Pamphlet 11, Melbourne, 1965)Google Scholar and “The Labour Government and the Constitution” in Evans, G J Labor and the Constitution 1972-1975 (1975) 305-330Google Scholar

²⁹ See the Pharmaceutical Benefits Case (A-G (Vic) v Commonwealth) (1946) 71 CLR 237 at 265-266, 271-272 and 281-282 per Starke, Dixon and Williams JJ respectively; and The AAP Case (Victoria v Commonwealth) (1975) 134 CLR 338, 356, 359-363, 373-375 per Barwick CJ, Gibbs and Mason JJ respectively.

³⁰ Zines, L, The High Court and the Constitution (1981) at 212-213Google Scholar; Lane, P The Australian Federal System (2nd ed 1979) at 128-129Google Scholar; Winterton, G Parliament, the Executive and the Governor-General (1983)Google Scholar; Ren free, H E The Executive Power of the Commonwealth of Australia (1984) 419-420 and 430-432Google Scholar.

³¹ Fairfax v Federal Commissioner of Taxation (1965) 114 CLR I; Murphyores Inc Pty Ltd v Commonwealth (1976) 136 CLR I; see also the Judgment of Dixon Jin Melbourne Corporation v The Commonwealth (1947) 74 CLR 31, 79-80.

³² Winterton op cit describes at p 48, the scope of the federal executive's power to act without Legislative authorisation, thus:

... with the exception of the power to “execute” the Constitution, the “depth” of the executive power of the Commonwealth is defined by the prerogative or common law powers of the Crown; in other words, ... the executive may act without statutory authority only to the extent of the prerogative powers of the Crown.

The executive prerogatives, under which the Monarch could act included the power to execute treaties, declare war, make peace, coin money, incorporate bodies by royal charter, confer honours, control the armed forces, hold enquiries and conclude contracts: see G Winterton, pp 48-49.

³³ In order to be able to define the total scope of Commonwealth powers, it is necessary to have some preconceived idea as to where those powers end and State reserved powers begin. If there is no preconceived boundary, but only a test such as the requirement that to be valid, a law must be substantially connected to the head of power, it will be impossible to determine the scope of the power with any accuracy. To do so would require the court to make a judgment about what would be the limit case of a connection between the law and the head of power. Without actual legislation to consider such a judgment would be essentially arbitrary.

³⁴ The principles of the Engineers Case (1920) 28 CLR 129 that each Commonwealth power is to be interpreted broadly and the rules of interpretation which have been developed since, especially the rule that a head of power may be used to achieve purposes unrelated to that head of power have the affect that, to a certain extent, although Parliaments' powers are limited to particular topics, it can indirectly assume responsibility over many matters which are, on their face, unrelated to those topics. To that extent, the Engineers Case may be regarded as an attempt to marry responsible government to a parliament of limited powers. Under the old reserve powers doctrine, such a marriage was impossible, because Parliament's responsibilities were limited to the scope of its powers. It could not go beyond those powers to exercise indirect controls because to do so was to invade the powers reserved for the States; see R v Barger (1908) 6 CLR 41.

³⁵ Supra n 28.

³⁶ The time limit vary for different causes of action and in different jurisdictions. They are set out in various Statutes of Limitations.

³⁷ The attempt to offer a comprehensive definition of Commonwealth power and, as a corollary, of State reserve powers, ended with the Engineers’ Case (1920) 28 CLR 129. Since that case, the High Court has not attempted to offer comprehensive definitions of the scope of the Commonwealth’s powers, but has simply required that laws be substantially connected to the head of power. This essentially open-ended definition has allowed the Commonwealth’s powers to be expanded greatly.

Commonwealth v Tasmania (1983) 57 ALJR 450 is the latest case in which the High Court admittedly by a majority of 4 to 3, adhered to an essentially open-ended interpretation of the scope of Commonwealth powers although as a result the Commonwealth was able to intervene in an area of policy traditionally reserved to the States. Other notable recent examples include Koowarta v Bjelke-Peterson (1982) 56 ALJR 625; and, less controversially Actors and Announcers Equity Association oj Australia v Fontana Films Pty Ltd (1982) 150 CLR 169 and Fountain v Alexander (1982) 150 CLR 615.