Review of Australian Law and Its Decline

[Editor’s note: The following article is longer than usual, but it gives the legal history and reasoning that is conspicuously absent from Australian Constitutional Law. Gumshoe is the only place that has ever re-printed it. No legal publication, Bar Association, Law Society or cute ‘legal trade’ magazine would touch it. Most of the bolding is mine.]

by Terry Shulze

This article is a result of a discussion I had with Dee [McLachlan] about a case I did back in 1988-89. I was approached by some people that were challenging the Egg Industry Act. The plaintiff, an egg farmer, had run out of money and now they needed a barrister to continue the case on a spec/pro bono basis. Having lost at the Supreme Court level, the case was now in the Court of Appeal. I was only two years at the Bar and had never appeared in the Supreme Court, let alone the Court of Appeal.

I agreed to take a look at the documents. Almost immediately I was close to puking. The former sleazy/incompetent lawyers had pleaded an alleged constitutional issue that the legislation was not one for the ‘peace, welfare or good government’. The reason for my indigestion was that issue had been decided in the Union Steamship case in the High Court BEFORE those lawyers had filed the pleadings. This case was a dead loser right out of the gate and they had strung him along until his money ran out. The legislation they were challenging was a typical ‘pay to play’ piece of rubbish that Australian Parliaments are so fond of passing.

The more I read, the angrier I got. There were two inquiries (the Gilchist and ACIL Reports), commissioned by the Parliament and paid for by the people of NSW that the legislation wasn’t doing what it purported to be doing – and the Parliament wasn’t doing anything about it.

OK, if I took on this train wreck, what was in it for me? Only that I could stop an injustice and run some legal arguments that Australia desperately needed to hear. As far as compensation, my client’s total contribution was a frozen turkey and four dozen eggs.

So, how could I turn it around at the last minute in the Court of Appeal? Thankfully, I had been educated in Law in America. I had to take a semester of English Constitutional Law before I could take American Constitutional Law. The case was clearly a ‘rational basis’ case. That is – ‘The substance of Law is Reason, a law without a reason doesn’t have the substance of law, and something without substance is called a VOID’.

And thus my journey into the bowels of Australian Constitutional law began.

I listened to my fellow barristers waffle on about the Sovereignty of Parliament and how I couldn’t challenge a Parliamentary law. They also told me that the citizens did not have Fundamental Rights and that after the Colonial Laws Validity Act that those fundamental principles of English Law did not apply. I was like WTF? Why are these guys walking around in wigs and gowns if they aren’t going to practice English Constitutional law?

Let’s begin…

The first thing I had to do was convince the Court that they did have power of Judicial Review using the Fundamental Principles of English Law, in other words, I was going to teach Constitutional law to the members of the Court of Appeal. I suppose some may think that might be a fairly brazen thing to do for some ‘Yank’ who had only been at the Bar for two years. However, I’ve been in tougher situations in my life, no biggie.

The submissions I wrote were in the form of a ‘Law Review’ article and composed of much legalese and citations, but I will quote some parts of it so you can get the idea of what I was doing. I can also use language and arguments in this article that would not be ‘professional’ in a formal legal document. In other words, I’m going to write the article for Gumshoers. If any legal practitioner would like a copy of the actual formal legal submissions, just ask and I will forward a copy. Here’s a start from the submissions:

Early Cases in NSW

There appears in many of the earlier cases in NSW decisions which affirm the constitutional fundamental rights of the people of NSW. These earlier cases appear to have been ignored by contemporary lawyers, yet the cases have never been overruled.

EX PARTE NICHOLS

The case of Ex Parte Nichols [1839] 1 Legge 123, is one such case which clearly indicates the strength of the judges conviction in the natural law heritage applying in New South Wales. Here are two quotes from the case:

Dowling CJ at 126.5 “Independently of any Act of Parliament, I take it to be a principle of the law of England and of natural justice, that every defendant, whether in a civil or criminal judicial proceeding (summary or not), has a right to be fully heard in person, in defence of his property, his fame, his liberty, or his life.”

Also Stephen J., who would eventually become another of NSW’s distinguished Chief Justices stated at page 135.8 “I also think the principle exists, but as at Common Law, and not by force of any enactment whatsoever.”

The constant theme expressed throughout the case was the concept of constitutional fundamental rights:

Dowling CJ at page;

128.1 – “applicability to all the fundamental laws of England”

128.7 – “I regard as a fundamental personal right”

128.9 – “Shall therefore a fundamental law regarding a personal right”

Willis J at page;

131.8 – “it adds to the great constitutional right conferred by Magna Charta”

132.6 – “a fundamental constitutional personal right of British subjects”

132.7 – “birthright of an Englishman as the Magna Charta, the Habeas Corpus”

133.6 – “personal rights which are the fundamental, constitutional and inherent”

Stephen J at page;

135.8 – supra

“There are other early cases which I’ll touch upon. MacDonald –v- Levy [1833] 1 Legge 39 in which Burton J. recognized the duty of the judges as the guardians of the rights of the people. At page 49.0 he states, “I look upon this clause as the great charter of the Colony, and at once yielding to the colonialists all that by the common law, or the liberal, and enlightened, and accumulated wisdom of our ancestors, has been provided for the protection of life, liberty and property, and for regulating the transactions of men with each other. All becomes by virtue of it “the justice and right” which the justices are sworn to do to all the King’s subjects, and is expressly provided in one of the clauses of Magna Charta.”

In Regina –v- Roberts [1850] 1 Legge 544, Dickinson J. spent a great deal of time and effort, starting at page 562.1 and continuing to page 567.8 in defining the differences between the natural law and statute law. Those 5 ½ pages of discourse should be required reading of any law student of the Common Law. At page 569.5 he continues with the necessity of instituted laws being similar in spirit to the natural law. At page 569.9 he indicates that the Court can recognize an infringement on the natural law, as long as it is not an undue infringement which creates a nullity of the natural law.

In Rusden –v- Weeks [1861] 2 Legge 1406, the decision of Wise J. starting at page 1419.9-1420.8 clearly supports the position of judicial review of legislation of the NSW Parliament. “…as the supremacy of the law us the characteristic of every constitutional government, it becomes imperative duty of courts of justice, independently of all political considerations, to decide which is the law of the land.”

In Ex Parte the Rev. George King [1861] 2 Legge 1307, Dickinson CJ indicated at page 1313.1-.6 the universal nature of the natural law and that no statute was necessary to introduce the natural law to NSW.

Summary of Cases

It appears quite clearly that the early judges of NSW considered that the people of NSW had fundamental constitutional rights, that the courts could declare an Act of Parliament void, that the laws of the legislature must be reasonable and not inconsistent with the Constitution and that the fundamental documents, such as the Magna Charta, Bill of Rights and Habeous Corpus Act comprised parts of the Constitution.

And now we will slip down the ‘Rabbit Hole’ to see where things went off the rails.

Two things occurred in the latter half of the 19^th century which perverted the legal thinking in NSW, a bizarre interpretation of the ‘Colonial Laws Validity Act’ and the re-assertion of legal positivism in the form of the ‘Sovereign Parliament’.

Colonial Laws Validity Act

Let me give an example of how bad it went off the rails.

R.D. Lumb in his book entitled The Constitution of the Australian States while discussing the Colonial Laws Validity Act at page 91.5 indicates that “No colonial law was to be void on the ground that it was repugnant to the fundamental principles of English Law.” [i.e. Colonial law would supersede fundamental principles of English Law.]

Lumb then cites S. 3 of the Act as the authority (it doesn’t support that interpretation). In another of his books Australian Constitutionalism he states at page 46.4 “The principle of Imperial hegemony was reflected in the doctrine of repugnancy, a doctrine which, before the enactment of the Colonial Laws Validity Act (1865) extended beyond paramount statutes to certain ‘fundamental principles of British Law’”. He doesn’t give any authority for this statement, but this time leaves it to the reader to infer that something, perhaps S.2 or S.5 of the Act is the authority.

It is my informed opinion that Lumb is guilty of JMSU — otherwise known as just making shit up.

Before I go through the events leading up to the Colonial Laws Validity Act, I refer the reader to a case decided just 5 years after the Colonial Laws Validity Act. In Phillips –v- Eyre [1870] Q.B. 1 it was argued that the Act in question was contrary to the principles of English Law (page 20.8). Two arguments were entertained, the second one was related to natural justice. In the decision regarding invalidity to natural justice the Court went on for nearly five pages of discussion (pages 23-28). If the Colonial Laws Validity Act had in fact stated that “No colonial law was to be void on the ground that it was repugnant to the fundamental principles of English Law” then the Court would not have entertained the second argument about natural justice, they would have dismissed it with reference to the Colonial Laws Validity Act, but they didn’t, they spent some time on the argument. (Hey, Lumb! How did you miss that during your ‘research’?)

Now let’s jump into the background on the Colonial Laws Validity Act.

THE BOOTHBY AFFAIR

Justice Boothby, a judge of the Supreme Court of South Australia, had declared several Acts of the Parliament void for various reasons. The documents I worked with did not have any of his legal opinions, but it appears it may have been a combination of technical objections with references to fundamental principles of English Law. I don’t know, but in any case, the regular course would be for the judicial decision to be sent to the Privy Council for their opinion. For some unknown reason they avoided taking that route and sent a request to the law officers of the Colonial Office.

The South Australian Parliament was requesting unrestricted power to pass legislation. In other words, the rule of men, not the rule of law. The Colonial Office returned a reply in Opinion No. 110 (April 12, 1862).

“3. Is he to pronounce such an Act invalid, if its provisions be, in his opinion, contrary to the principles of British Law which he deems fundamental…?”

The answer to the question read, “3. This question we also answer in the affirmative, and on the same ground of an unquestionable ‘repugnancy’”.

Further, the Colonial Office stated, “it is also void if contrary to any of those essential principles of what may be called natural jurisprudence”

This response from England was not what the South Australian Parliament wanted to hear. So back went another request dated 23 December 1862 requesting unbridled power through an Imperial Act. England then passed an Act, 26 &27 Vict. C.83 that validated some previous laws, but which refused to remove judicial review.

The conflict with Boothby and Parliament continued and in June 1864 the South Australian Parliament put together a request to the Queen which read in part: “to the danger and impolicy of leaving in the hands of the Colonial Judges the power to declare the Acts of this Parliament illegal… We, therefore, trust that your Majesty will graciously relieve us from further suffering under this enormous evil… that it shall not be competent for any Judge in the Courts of the Providence to call in question the validity of an Act…”

In response to the address by the South Australian Parliament the Colonial Law Officers gave another legal opinion affirming their previous opinion. In Opinion 275 (September 28, 1864) they stated “Mr. Elliot was further pleased to state that this question (invalidity of legislation) was explicitly treated in an opinion given by Sir William Atherton and Sir R. Palmer on the 12^th April 1862”.

However, to placate the whinging S.A. Parliament and to stop the technical objections by Boothby, the Colonial Laws Validity Act was passed. Several things need to be noted about that Act.

First, it did NOT remove the power of judicial review.

Second, it did not incorporate the requested Clause 8 as prepared by the S.A. Parliament. In fact, section 6 (apparently the result of the requested Clause 8 requesting the validity of an Act) only refers to the clerk’s certificate as “prima facie evidence” that a bill was duly and properly passed and completely disregards any concept that it is “within the powers of the legislature”.

Third, the Act did not remove any power to declare an Act invalid because it was contrary to the Constitutional Law of England, nor did it remove any power to declare an Act invalid because it was contrary to the natural law or fundamental principles of English Law.

It appears from the last two paragraphs of the Opinion No. 275 (September 28, 1864) that the Colonial Laws Validity Act was in response to the “technical objections” taken by Boothby. This was not only the purpose expressed in that Opinion 275, but a purpose that logic would dictate, obviously the security granted under English Constitutional Law and the fundamental rights of British subjects were not going to be compromised by a personal conflict between a colonial Parliament and a single Judge. That was also the opinion of Colonial Judges at the time, go back to the case of Phillips –v- Eyre [1870] that I referred to earlier.

How in the Hell someone like Lumb can come up with, “No colonial law was to be void on the ground that it was repugnant to the fundamental principles of English Law” is just extraordinary. His ‘research’ obviously did not include the actual correspondence between England and the South Australian Parliament.

Now if you think Lumb was guilty of JMSU, you’re going to love a bloke called Dicey!

THE SOVEREIGN PARLIAMENT THEORY

So who was Dicey? He was a failed junior of the Bar who became a teacher and wrote a book called “The Law of the Constitution”. This book created a theory called the ‘Sovereign Parliament’. The theory was essentially a return to legal positivism in the form that the Parliament was now ‘the sovereign’.

I tried to find out more about Dicey and there were various rumours, but nothing I could rely upon. It appears he wanted to be a ‘player’, to run with the big dogs, but failed at the Bar so he took another punt with his book which became a text for vulnerable students of law. We’ve run into ‘players’ in the legal profession before when discussing the Port Arthur Massacre, there was the prosecutor, Bugg, and also defence lawyer Avery. People that don’t respect the Rule of Law and are in it for themselves.

Dicey’s ‘Sovereign Parliament Theory’ is pure bunk, another case of JMSU.

For example he cites Sir Edward Coke’s comments at page 36 in his ‘Fourth Institute’ as supporting the Sovereign Parliament Theory. However, the ‘Fourth Institute’ was concerned with the jurisdiction of Courts and the chapter quoted from was entitled ‘The High Court of Parliament’. Coke obviously was referring to the power of Parliament in the form of adjudication, not legislation. If you think that Dicey was ‘stretching’ the truth a bit, just wait until you see what he omitted!

He just happened to overlook Coke’s many other comments, such as Coke’s dictum in Dr. Bohnam’s Case 77ER 646 at 652 where he stated “it appears in our books, that in many cases, the common law will control Acts of Parliament, and sometimes adjudge them to be utterly void: for when an Act of Parliament is against common right and reason, or repugnant, or impossible to be performed, the common law will control it, and adjudge such Act to be void”.

Or Coke’s confrontation with James I, wherein he risked being beheaded by asserting Bracton’s comments that the Common Law protected the King, not that the King protected the Common Law. In other words, the Common Law was higher than the King. (Case of Prohibition [1607] 12 Co. Rep 63).

Or Coke’s comments during the drafting of the Petition of Right of 1627, wherein he stated “sovereign power is no parliamentary word. In my opinion, it weakens Magna Charta, and all our statutes, for they are absolute, without any savings of sovereign power… Magna Charta is such a fellow that he will have no sovereign.” (3 St. Tr. 193).

It wasn’t just Coke that Dicey misrepresented, he also did it to others in order to twist things around to support his ‘theory’. What is apparent from reading ‘The Law of the Constitution’ is that Dicey does not support his theory with even one credible piece of authority (The Rule of Law G. Walker, Melbourne University Press, 1988 Chapters 4 & 5). Dicey simply states his theory as fact – JMSU.

The Sovereign Parliament theory is inconsistent with the history of the English people, inconsistent with the authorities of English legal theory and logically inconsistent. As I stated in my submissions, “It is a simple theory, for simple minds, that simply doesn’t work”.

Even someone as intellectually shallow as Dicey must understand that a stream cannot rise higher than its source. Likewise, with the Sovereign Parliament taking over the position of the former sovereign, it cannot take over powers that the former sovereign did not have. As the former sovereign was required to respect the fundamental rights of the people, so too is the present sovereign (Parliament). The present sovereign simply steps into the shoes of the former sovereign in the fundamental documents of the Constitution.

The Parliament stepping into the shoes of the former sovereign is consistent with English history, consistent with legal authority and logically consistent. How Dicey could have missed something as obvious as that could not be an accident. Just as he was intentionally misrepresenting his authorities, he was intentionally trying to reform the English Constitution to deliver unbridled power to the political hacks in Parliament. You would have to be pretty stupid to buy into that BS – which now brings me to the judges of the 20^th Century.

THE DECLINE IN AUSTRALIAN LAW

The High Court case of Ghia Gee Anors –v- Martin 3 CLR 649 is cited in the Australian Digest as the sole authority on the Magna Charta. The part relied upon is on page 653.0-.2 wherein there is one sentence by Griffith C.J., “The contention that a law of the commonwealth is invalid because it is not in conformity with Magna Charta is not one for serious refutation.”

That’s it. That is depth of reasoning by the Chief Justice of the High Court, allegedly the greatest legal mind in Australia at the time. – Well judge, if it is not one for serious refutation, how about just a scintilla of refutation?

Crikey, go back to those early cases I referred to and compare the quality of reasoning with what is being dished out in the 20^th Century, the difference is embarrassing. I’ll mention a few examples, but the logic in them all is essentially the same, they rely upon the ‘Sovereign Parliament Theory’.

In Fischer –v- Douglas ex parte Fischer [1978] Qd. R. 27 at 45 is a typical ‘Sovereign Parliament’ argument. No authority to support the proposition, no reasoning process to support the position, the ‘Sovereign Parliament’ is just taken as fact. At 45C “because of sovereignty of Parliament, the subject does not have guaranteed rights. Those who describe themselves as the champions of civil liberties frequently speak of such liberties as though there were no such thing as the sovereignty of Parliament; and, when they address themselves to the uncomprehending and emotional, they may consequently mislead their audience.” – like I said, embarrassing…

There are other arguments that judges use to shirk their responsibility and defer to the ‘Sovereign Parliament’, one of which is that judges “sit as servants to the Crown”. In other words, servants to power. In my opinion if a judge doesn’t want to judge according to English Common Law, but considers himself to be a servant, then perhaps he should remove the wig and gown and put on an apron.

Another argument is the ‘political solution’, that is, the substitution for all the individual rights with the single right to vote for the party of your choice (which party? Black with white stripes or white with black stripes). I love the statement in Lee –v- Bude and Torrington Junction Railway Company [1871] L.R. Vol. 6 576 at 582.7 where Wiles J. states “Having neglected to take the proper steps at the proper time to prevent the Act from passing into law, it is too late now to raise any objections to it.” What the Hell? Nobody knows what goes on in Parliament, even the judge couldn’t tell you what was being discussed on any given day. Did the judge really mean that the plaintiff should have divined that events were occurring without the plaintiff’s knowledge and then approached the various members of Parliament “at the proper time” and made submissions to those members about the matters of which he had no knowledge. (??)

TURNING IT AROUND

You can only begin get the idea of how badly both legal theory and practice had deteriorated by the time I arrived at the Bar. I’ve got heaps of stories from all those years. Instead of boring people with anecdote after anecdote, I simply point to the Port Arthur Massacre. Research that one case and you’ll learn everything I learned from 21 years at the Bar.

Now I’m retired and glad to see my legal career in the rear view mirror. However, at that early stage I still held out hope that things could be turned around. What I needed was an appropriate case and compelling legal arguments. OK, now I had the case and the legal arguments backed with solid authority, all I needed now was an independent and honest judiciary and I could drive a stake through the heart of the Sovereign Parliament theory and reaffirm the constitutional rights of the citizens – and that’s where it all came undone.

As far as running the case, I cleaned up everything that needed to be done. As part of that legal manoeuvring, I had another egg farmer (Joe Damjanovic) file another statement of claim in the Supreme Court using the arguments I was running in this appeal. The Court was going to have to deal with the arguments either now or later. Another arrow in my quiver, using the fundamental principles of English law was going to be somewhat easier in NSW as the fundamental documents of English Law like Magna Charta (1297), Statue of Monopolies (1623-4), Petition of Right (1627) and Bill of Rights (1688) were part of the written constitution of NSW via the declaration of the Imperial Laws Application Act 1969. I was pleading that the Egg Industry Act was ultra vires the Constitutional Enactments of NSW. The judiciary didn’t have to consider if those documents were part of the NSW Constitution as Parliament itself had settled any legal argument by declaring those documents as part of the NSW Constitution in Part 2, sec. 6 of the Act.

RATIONAL BASIS TEST

Using the fundamental constitutional documents in this case mirrors what was happening in America prior to the drafting of the American Constitution. For example, in the case of Bowman –v- Middleton [1787] 1 Bay 252, an Act of the Assembly in 1712 transferred a freehold from to another, without trial or compensation. The Court at page 254.8-255.2 held “that the plaintiffs could claim no title under the Act in question, as it was against common right, as well as Magna Charta, to take away the freehold of one man and vest it in another, and that, too, to the prejudice of third persons, without compensation, or even a trial by the jury of the country, to determine the right in question. That the Act was, therefore, ipso facto, void. That no length of time could give it validity, being originally founded on erroneous principles.”

I did have to refer to American law in the submissions as the ‘rational basis test’ is recognized in American law, but had never been used in Australia. The test does have its origins in English law, but I had to use some American cases to illustrate the point. In English law, extrinsic aids to interpretation relied primarily on the concept of searching for the “mischief which the statute was designed to remedy” Heydon’s Case [1584] 76 E.R. 637 at 638-9. That ancient language is the ‘rational basis’ or ‘rationale for the legislation’ or the ‘raison d’ etre’.

As I stated at the beginning, “The substance of law is reason, a law without a reason lacks the substance of law, something without substance is called a VOID.”

I also made mention of the American term “substantive due process”. The term was developed from the concept that a person cannot be seen to be receiving due process of the law, when the law itself lacks the substance of law. No matter how proper the procedures may be, a person does not receive the benefits of due process when the law itself is corrupt. My submission was that there was no reason for the legislation and thus the legislation was a denial of substantive due process.

Due process has been conferred by 28 Edward III ch.3 [1354], 42 Edward III ch. 3 [1368] and the Petition of Right [1627]. Each of these Imperial enactments are in force in NSW pursuant to S. 6 of the Imperial Acts Application Act.

I also had an entire argument developed around the Statute of Monopolies which I won’t go into.

THE EVIDENCE FOR NO RATIONAL BASIS.

I referred earlier to the Gilchrist and ACIL Reports concerning the egg industry. The Gilchrist Report was prior to the enactment of the Egg Industry Act 1983 and clearly indicated on page 172.5 that the original “Legislative underpinning of the NSW control of the egg industry suggests that the intentions expressed in the Marketing of Primary Products Act, 1972… At the time of the founding of the Egg Marketing Board of NSW this situation existed, but is no longer the case.”

This situation is similar to the American case of Chastleton –v- Sinclair 264 U.S.543 in which it was alleged that the state of facts upon which the law was based cease to exist, as such it no longer had a rational basis for its existence (page 547.7-549.3).

The later ACIL Report, in review of the new legislation and how it was working, did not have one favourable thing to say about the Respondent, it was all negative. Perhaps one statement on page 11 says it all, “The Current System Disadvantages Both Producers and Consumers”. The legislation operated against the public interest and did so from its inception.

SO WHAT HAPPENED?

I have glossed over much of the submissions, which might be of more interest to lawyers, but this article is already too long. The final outcome of the case was a political sidestep from the legal issues. A back channel communication to the Parliament of what the Court intended to do resulted in the Parliament repealing the legislation – repeal the legislation and the case will go away. In repealing the legislation, the Parliament also allocated 64 million dollars to ‘compensate’ farmers in the egg marketing scheme.

This ‘compensation’ was a cover for returning the original players ‘pay to play’ money. The political hacks in Parliament had no intention of returning the money, so it became the burden of the taxpayer. The small producers in the industry couldn’t believe what happened – they were now receiving money instead of being harassed. Joe Damjanovic was awarded 2.2 million dollars, which he refused to take as he thought it had to be a trick. My client received 1.2 million dollars, of which I never saw a penny.

It was all over. The Court lied about the legal issues before the Court and dismissed the appeal. I never got to run the case.

As for me, I had taken on the case to run the legal arguments before an ‘independent’ judiciary. I gave them the arguments on a silver platter to kill off the Sovereign Parliament theory and to reaffirm the fundamental rights and principles of English law. I was after the legal precedent so I could go after some more bad guys, I was going to try and turn things around in Australia. – and then the Court threw it all away.

This was not to be the last time that a Superior Court knifed me in the back. I also took on a pro bono banking case when nobody else in Australia would. Again a lot of work, no pay and then the Court pretends not to notice my arguments.

I don’t know what the solution is.