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VOLUME 48(1)

 

Responsible Government, Statutory Authorities and the Australian Constitution

BENJAMIN B SAUNDERS

This article examines the compatibility of extra-departmental executive agencies, a defining feature of the modern regulatory state, with responsible government, one of the architectonic principles of the Australian Constitution. Some scholars have argued that a constitutional implication derived from responsible government should be drawn limiting the types of entities that may be established by the Commonwealth and imposing requirements relating to the relationship that must exist between ministers and entities within their portfolio. This article argues that the view that independent statutory agencies are a derogation from the principles of responsible government rests on a misunderstanding of responsible government. Responsible government is an inherently evolutionary system: as incorporated into the Australian Constitution, responsible government was intended to be flexible and non-prescriptive, allowing for change in the governmental arrangements considered necessary from time to time. Independent statutory agencies should not be seen as a challenge to the true principles of responsible government but a legitimate evolution in governance arrangements, which the Constitution deliberately left open.

In Focus: Interpretation

Constitutional Interpretation Wholly Unmoored from Constitutional Text: Can the HCA Fix Its Own Mess?

JAMES ALLAN

In this article, the author argues that certain types of constitutional interpretation in Australia have become far too unmoored from the written constitutional text and its intended meaning, the reductio ad absurdum of such unmoored general approaches being the recent High Court of Australia case Brown. The author therefore asserts that there is a serious problem with some types of constitutional interpretation in Australia that have evolved to a point where we can observe few if any outside constraints on the outcomes available to top judges. The author finishes, briefly, by considering what can be done about this state of affairs.

Against Interpretation as an Alternative to Invalidation

SCOTT STEPHENSON

This article evaluates the rise of interpretation as an alternative means of judicially enforcing legislative compliance with rights. Instead of the traditional method where courts are empowered to invalidate statutes that are found to be incompatible with rights, the alternative empowers courts to interpret statutes in a manner that renders them compatible with rights. It argues that interpretation emerged as an alternative to invalidation among both constitutional reformers and judges in Australia (and elsewhere) in the 1990s and 2000s because interpretation was seen as a way of addressing democratic concerns about rights-based judicial review and as a less confrontational method of resolving rights issues. The article puts forward an argument for invalidation over interpretation on the basis that interpretation’s comparative appeal is not particularly strong—there are alternative ways of addressing the democratic concerns, and the connection between invalidation and confrontation is weak—and that invalidation is a more transparent, and therefore accountable, exercise of public power than interpretation.

Re-evaluating the Collateral Challenge in the Era of Statutory Interpretation

JULES O'DONNELL

A collateral challenge impugns the validity of an administrative decision in a proceeding that is not specifically designed for the modification or setting aside of that decision. On the current state of the law, there is a presumption in favour of collateral challenge in an inferior court, which can be displaced by a contrary legislative intention. I argue, however, that the current presumption lacks a clear doctrinal basis, and that it places too much emphasis on statutory interpretation as a useful tool for rebutting, or indeed vindicating, the starting presumption (let alone determining what administrative law ‘grounds’ a collateral challenge might encompass). I suggest a rearticulation of the presumption as an expression of a defendant’s entitlement to vindicate legal rights. I point out, however, that contemporary norms of administrative law may otherwise demand a stricter approach to permitting collateral challenges. On this alternative view, a challenger must identify clear legislative authorisation for what is essentially a judicial review function.

In Focus: Proportionality

Calibrated Proportionality

ROSALIND DIXON

The High Court currently applies two different tests to determine the validity of laws that effectively burden the implied freedom of political communication (‘IFPC’) under the Constitution—a test of ‘structured proportionality’ and one of ‘calibrated scrutiny’. Both tests have potential advantages, and disadvantages, but there is also a case that, over time, the Court should again adopt a single approach to assessing the validity of laws burdening the IFPC. The article therefore explores what it might mean to create a true hybrid between the two current approaches—that is, a test of ‘calibrated proportionality’. Such an approach, it suggests, should be understood as having three key dimensions: first, explaining how and when certain context-specific ‘calibrating’ factors could usefully inform a test of ‘necessity’ and ‘adequacy in the balance’ under a test of structured proportionality; second, showing how attention to constitutional values can help calibrate the intensity of the Court’s application of the tests; and third, suggesting a well-identified continuum for calibrating the intensity of judicial review, based on four broad categories of case.

Proportionality and Its Alternatives

ADRIENNE STONE

This article examines the claim that the adoption of structured proportionality analysis is not well suited to the Australian constitutional context and argues that this claim is mistaken. Structured proportionality analysis is sometimes associated with a strong commitment to fundamental constitutional rights which is, it is conceded, foreign to Australia. However, structured proportionality can also be understood merely as a method of analysis which changes the High Court’s previous approach only slightly. This argument clears the way for the adoption of proportionality in Australia. However, it is also argued that the positive case for its adoption is inconclusive. Proportionality promises an increase in transparency by isolating the balancing element of the analysis. However, it is unclear how much difference this somewhat minor adjustment will make in practice and those advantages must, in any event, be measured against the cost of distraction and confusion created by doctrinal innovation. Finally, the article addresses ‘calibrated scrutiny’, Gageler J’s preferred form of analysis. It is argued that this approach offers some advantages. However, it need not be seen as an alternative to the proportionality method. On the contrary, the two approaches could be reconciled and a form of proportionality used as a manner for better development of the law.

Book Review

The Veiled Sceptre: Reserve Powers of Heads of State in Westminster Systems

JOSEPH DEAN

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