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Published online by Cambridge University Press: 24 January 2025
Following the High Court's decision in the Election Advertising case, Toohey J's extra-eurial speech at a 1992 conference on constitutional law has inspired speculation as to the existence of an implied “Bill of Rights” in the Constitution. As reported in the Australian Financial Review, Toohey J's thesis avoided any direct challenge to the doctrine of Parliamentary supremacy by, “resorting to the Constitution — albeit implications arising from the Constitution as opposed to the written text — to legitimise judicial scrutiny of legislation”.
1 Reproduced in abridged form in (1992) 27 Australian Law News No 10, 7-l l.
2 15 October 1992, 9
3 Supra n 1, 10.
4 That colonial parliaments did not have power to pass legislation repugnant to the law of England.
5 See R v Burah (1878) 3 App Cas 889; Hodge v The Queen (1883) 9 App Cas 117; Powell v Apollo Candle Co (1885) 10 App Cas 282.
6 Amalgamated Society of Engineers v Adelaide Steamship Co Ltd (1920) 28 CLR 129.
7 (1988) 165 CLR 543. There the Court upheld barristers' imm ity from action for negligence in court, but did so on the-ground of public policy, discarding the old basis of the special (non-contractual) relationship between counsel and solicitor. The most notable consequence of this was that the benefit of the immunity was extended also to solicitors.
8 See, eg Sir Anthony Mason, “The Australian Constitution 1901-1988” (1988) 62 ALJ.1752.
9 As, eg the people of Australia, speaking by referenda.
10 Sir Mason, Anthony, “The Role of a Constitutional Court in a Federation” (1986) 16 FLRev 1.CrossRefGoogle Scholar
11 Craven, G, “Cracks in the Facade of Literalism: Is there an Engineer in the House?” (1992) 18 MULR 540, 563-564;Google Scholar Craven, G, “After Literalism, What?” (1992) 18 MULR 874, 888Google Scholar.
12 Craven, G, “After Literalism, What?” (1992) 18 MUIR 874, 891-892.Google Scholar
13 Supra 257.
14 Supran 12.
15 SirOwen, Dixon, “The Common Law as an Ultimate Constitutional Foundation” in Jesting Pilate (1965) 203Google Scholar
16 See also, in the context of the Australia Acts, of 1986, the views of G Lindell in “Why is Australia's Constitution Binding? The Reasons in 1900 and Now, and the Effect of Independence” (1986) 16 FL Rev 29.
17 Australian Capital Television Pty Ltd v The Commonwealth (No 2); NSW v The Commonwealth (No 2) (1992) 66 ALJR 695.
18 Supran 2.
19 Presumably, L v M [1979] 2 N R 519, 527; Brader v Ministry of Transport [1981] l NZLR 73, 78; New Zealand Drivers' Association v New Zealand Road Carriers [1982] l NZLR 374, 390; Fraser v State Services Coi,vnission [1984] 1 NZLR 116, 121 and Taylor v New Zealand Poultry Board [1984] 1 NZLR 304,398.
20 Presumably Union Steamship Co of Australia Pty Ltd v King (1988) 166 CLR 1, 10, which refers to Building Construction Employees and Builders' Lalx>urers Federation of New South Wales v Minister for Industrial Relations &Anor (1986) 7 NSWLR 372, 382-387 per Street CJ; 420-422 per Priestley JA.
21 (1686) 2 Show 475; 89 ER 1050; Comb 21; 90 ER 318; 5 Bae Abr 536; 11 St Tr 1165.
22 Day v Savadge (1614) Hob.85; 80 ER 235, Lord Sheffield v Ratcliffe (1615) Hob 334; 80 ER 475; Thomas v Sorrell (1674) Vaughan 330, 336-339; 124 ER 1098, 1101-1103; King v Earl of Banbury (1695) Skin 517, 527; 90 ER 231,236;City of London v Wood (1701) 12 Mod. 669 88 ER 1592; Leigh v Kent (1789) 3 TR 362; 100 ER 621; The King v Inhabitants of Cumberland (1795) 6 TR 194;101ER 507; Green v Mortimer (1861) 3 LT 642; l Blackstone's Comm, 40,90-91, 162.
23 (1990) 170 CLR I.
24 (1985) 157 CLR 523.
25 (1609) 8 Co Rep 107a; 77 ER 638; 2 Brown. 255; 123 ER 928.
26 Stat Westminster II (1285) 13 Edw I, Stat I, c I.
27 Preface to 3 Co Rep. xxxiii; 6 Co Rep 40.
28 7 Co Rep la, 12b-14a; 77 ER 377, 391-394.
29 Ibid 4b; 382, “this law of nature is part of the laws of England” and 12b, 14a; 391, 394, “parcel of the laws”.
30 Preface to 2 Co Rep v.
31 As “... against common right and reason, or repugnant, or impossible to be performed ...” 8 Co Rep 118a; 77 ER 652.
32 Id.
33 See also Rowles v Mason (1612) 2 Brown 192, 198; 123 ER 892, 895.
34 In this respect, see C H Mcilwain, The High Court of Parliament and itsSupremacy (1910) 273-278, 285-301; T F T Plucknett, “Bonham's Case and Judicial Review” (1926-1927) 40 Harvard LawReview 30, 35-48.
35 It appears that Coke extracted this phrase out of his precedents by a process ofinduction, rather than finding it expressly present in them. See J W Gough,Fundamental Law in English Constitutional History (1955) 34.
36 7 Co Rep la, 13a, 14a; 77 ER 377, 392, 394.
37 Ibid 13a; 392.
38 Dismissals of Dr Bonham's case as merely espousing a formula of strictinterpretation fail to reckon properly with Calvin's case and, in any event, involve an attempt to strain Coke's words too far from their natural meaning. See S E Thorne, “Dr Bonham's case” (1938) 54 LQ.R 543; J W Gough, supra n 35, 34-37. Plainly, Coke's words were intended to support his ruling that the Statute of 14 H.VIll (the statute in question in Dr Bonham's case) could not, despite its express terms, authorise the Defendants to fine the Plaintiff because they would thereby become judges in their own cause (they taking one half of the fines). Thorne, at 548, seeks to minimise this as a mere refusal to follow a statute absurd on its face. 14 H.VIll may be wtjust, but how is it absurd? It only contains a contradiction if one presupposes a fundamental rule, that none may be judge in his own cause. One cannot escape from resort to a fundamental law. Moreover, the very proposition of absurdity as a ground of invalidity is itself far more than merely strict interpretation.
39 (1615) Hob 334, 346; 80 ER 475,486.
40 For Ellesmere's comments, see his address to Montague CJ at Moore 826, 828; 72ER 931, 932 (where he, however, concedes the field as to two of the three grounds (supra n 31) on which Coke ruled that legislation will be controlled by the common law, namely, “impossibilities or direct repugnancies”). See also the Earl of Oxford's case (1615) I Chan Rep I, 11-12; 21 ER 485, 487-488 and his “Observations on the Lord Coke's Reports” 21 (extracted at 77 ER 652 n C). As to the authorship of the latter work, see Holdsworth, History of English Law (1924) Vol 5,478 n I; Sir Frederick Pollock, “Notes” (1920) 36 LQR 4.
41 The ancient prerogative power to dispense with compliance by a person with astatutory requirement. Readers will recall that James II resorted to this power in order to relieve Catholics of the obligation to swear the oath of supremacy required, by 25 Car.II c.2, to be sworn, within three months of receipt of their commissions, by the holders of most of the significant offices within the kingdom.
42 (1686) 2 Show475; 89 ER 1050; Comb 21; 90 ER 318; 5 Bae Ahr 536; 11 St Tr1165. This was a collusive action brought by James Il's agents to get a judicial endorsement of the King's dispensing policy. The King had granted a dispensation to Sir Edward Hales, whom he had commissioned as a colonel in the army. Godden was Hales' coachman. He successfully prosecuted Hales at the Rochester Assizes for breaching the requirement to take the oath. He then sued in the Court of King's Bench to recover the fine imposed. One of the issues there was issue estoppel, but the whole case was argued and the estoppel plea was unsuccessful.
43 T F T Plucknett, supra n 34, 46-48 and Hargrave's annotation to Co Lit 12,reproduced at 11 St Tr I188, but see contra, Sir Edw Herbert, “A Short Account,... “ 11 St Tr 1251 1255.
44 Y B Mich 2 Hen VII, 20 (which concerned a patent for life non obstante,allegedly contrary to 28 Edw III, c 7 and 42 Edw III, c 5).
45 5 Bac Abr 546-547.
46 Comb 23; 90 ER 320; 2 Show 477; 89 ER 1051.
47 7 Co Rep la, 14a; 77 ER 377, 393.
48 2 Show478; 89 ER 1051; Comb 25; 90 ER 321; 5 Bae Ahr 536; ll St Tr I199.
49 2 Show 478; 89 ER 1051; Comb 25; 90 ER 321; 5 Bae Ahr 536; and Bishop Burnet's account 11 St Tr 1195 n.
50 11 St Tr 1251, 1256-1257. See also, Sir Robert Atkyns', “Enquiry into the Power of Dispensing with Penal Statutes” 11 St Tr 1200, 1238.
51 7 Co Rep la, 14a; 77 ER 377, 393: “... the King may, by a special non obstante dispense with that Act, for that Act could not bar the King of the service of his subject, which the law of nature did give unto him” (italics added). See also, at 13b; 392-393, the discussion of the law of nature's immutability, upon which this passage follows.
52 Herbert LCJ submitted the case for the opinion of all of the judges of the Courts of Common Pleas, King's Bench and Exchequer. Only Street and Powell JJ dissented.
53 Comb 24, 90 ER 320; 11 St Tr 1196-1197.
54 T F T Plucknett, supra n 34, 52-54, 69; Bishop Burnet, History of His Own Times Vol 1,660,671 extracted at 11 StTr 1199n; see also 11 St Tr 1195n.
55 Supra n 51.
56 G de Q Walker, The Rule of Law (1988) 104-105.
57 2 Show477; 89 ER 1051.
58 (1628) 3 St Tr 194.
59 British Railways Board v Pi,cki.n [1974] AC 765, 782 per Lord Reid.
60 Sir Frederick Pollock, “A Plea for Historical Interpretation” (1923) 39 LQR 163,165.
61 1 Wm & M, sess 2 c 2.
62 The Constitutional History of Modern Britain (1960) 269,270.
63 These possibilities are not fanciful. One may envisage such a method of interpretation being put to quite fiightening uses in wartime or in a time of intense cold war. Would the results inAdelaide Company of Jehovah's Witnesses Incorp v The Commonwealth (1943) 67 CLR 116 and Australian Communist.Party v The Commonwealth (1951) 83 CLR l have been the same? Queensland v The Commonwealth (1989) 167 CLR 232 does not inspire confidence.
64 W Bagehot, The English Constitution (5th ed, 1888) 220, 227-230.
65 Supra n I, 9.
66 (1988) 166 CLR 1, 10.