THE MID-19TH CENTURY
 
The position taken by the judges of NSW was not distinctly different from the position taken by judges in other colonies.
Although the judges of NSW did not have any conflict with the Parliament over the concept of judicial review, in South Australia a significant conflict arose. It was this conflict between the Parliament and a Supreme Court Judge that became known as the “Booth affair”.
 
As will be shown, no change occurred in the powers of judicial review because of the “Booth affair”. However, because people live, work and play, with what they think is reality, and not with what is reality, the legal profession of Australia, being misguided by several misconceptions, appears to have disregard­ed the early law.
 
It is submitted that two things occurred in the latter half of the 19th century which affected the legal think­ing in NSW:
 
1. The Colonial Laws Validity Act and the re-assertion of legal positivism.
 
2. The "Sovereign Parliament" theory.
 
It was the re-assertion of legal positivism which had the greatest influence on the development of law in England and eventually in Australia. Whereas the people of England through the Bill of Rights of 1688 had declared once and for all an end to legal positivism in the form of the King’s Prerogative, various academics in the 19th century revived the concept, in the form of the Parliament’s Prerogative, or as it is better known, the “Sovereign Parliament”.
 
In order to perform this bit of magic, the various academics created their own version of English legal theory which they supported with their own brand of legal authority. This alleged legal authority did not and does not support the position taken by the proponents of the “Sovereign Parliament” theory. It was this le­gal/political theory that was being taught to the legal practitioners of the latter part of the 19th Century.
 
We will return to the “Sovereign Parliament” theory in due course, but first, The Colonial Laws Validity Act.
 
THE COLONIAL LAWS VALIDITY ACT
 
As all Australian Courts should be aware, the Colonial Laws Validity Act was the result of the events of the “Booth affair” in South Australia. The following is a simple recapitulation of this event in the history of Australian judicial review.
 
Justice Boothby, a Judge of the Supreme Court of South Australia, had declared several Acts of the Par­liament void for various reasons. This irritated the Parliament to such an extent that requests were sent to England to grant them unrestricted power to pass legislation. The first response from England contained the opinion of the law officers of the Colonial Office which stated in Opinion No 110 (April 12, 1862):
 
3. "Is he to pronounce such an Act invalid, if its provisions be, in his opinions, contrary to the principles of British Law which he deems fundamental...?”
 
The answer of the law officers read:
 
3. "This question we also answer in the affirmative and on the same ground of an unquestionable ‘repug­nancy’”.
 
The whole of the report was sent back to Sir Dominic Daly in a letter dated April 24, 1862, from the Duke of Newcastle:
 
“I enclose a copy of the report...a most valuable document...which I perceive with pleasure to have been in some of its most important features anticipated by the able and temperate statement on this subject, which has emanated from a Committee of the House of Assembly. As this report is in entire accordance with the views of Her Majesty’s Government...[I]n performing any executive act, or in advising the Queen in respect of any exercise of Her Royal Pre­rogative. Her Majesty’s Government, in conformity with the opinion of Her Law Advisers, will be guided by the following principles. They consider that a Colonial Judge is not only at liberty, but is bound to entertain the question, whether a colonial law, material to the decision of the question before him, is or is not valid. They consider that such an Act, even though left to its operation by Her Majesty, is void, if repugnant to an Act of the Impe­rial Parliament intended by that parliament to apply to the Colony; that it is also void if contrary to any of those essential principles of what may be called natural jurisprudence, which, as modified by the ideas and institutions of Christianity, have been adopted as the foundation of the existing law of England; but that it would not be void in consequences of any divergence from provisions of the English law which, having no necessary connection with any such fundamental principles, are, or might have been dictated by mere national peculiarity, or consideration of local or temporary convenience.”(South Australian Parliamentary Papers No 68 House of Assembly 1-2 (1862).
This response from England was not what the South Australian Parliament wanted to hear. In 1862 more legislation was alleged to be invalid, so back went another request dated 23 December 1862, requesting unbridled power through an Imperial Act. The Act, 26 & 27 Vict. c 83 was passed which validated previous laws, but which refused to remove judicial review.
 
The South Australian Parliament still continued to have problems with Justice Boothy. Although this was a conflict with a single Judge, the Parliament sought more than just relief from their immediate nemesis, they sought an extension of their power. In June 1864 the South Australian Parliament put together another committee to prepare an address 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 the 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 of the Courts of the Province to call in question the validity of an Act."
 
A draft bill was annexed to the address as an example as to what was wanted in the Colony. Clause 8 of
the bill provided:
 
“A copy of any Act of the said Parliament, certified by the Clerk of the Legislative Council, or by the Clerk of the House of Assembly, to be a true copy of such Act, and that it has been consented to by the Gov­ernor, shall be received in all Courts as absolute proof that such Act has been duly and properly passed, and that the said Act is within the powers of the Legislature, and has been duly assented to; and a copy of the Bill of the said Parliament, certified by Clerk of the Legislative Council or by the Clerk of the House of Assembly, to be a true copy of such Bill, and that the same has been reserved by the Governor for the signification of Her Majesty’s pleasure thereon, shall be received in all Courts as absolute proof that such Bill has been duly and properly passed and is within the powers of the Legislature, and has been duly presented to the Governor. And any proclamation of the Governor appearing in the South Austra­lian Government Gazette, notifying the disallowance by Her Majesty on any Act theretofore assented by the Governor in the name and on behalf of Her Majesty or notifying Her Majesty’s assent to any Act which may have been, or may be, reserved in all Courts as absolute proof of such disallowance or as­sent.” (South Australian Parliamentary Papers No. 142 House of Assembly 12-13 (1864)
 
In response to the address by the South Australian Parliament, the Colonial Law Officers in England gave another legal opinion which affirmed their previous opinion. In Opinion No. 275 (September 28, 1864) the first question was;
 
“Under what circumstance is a law passed in South Australia to be deemed invalid on account of its repug­nancy to the law of England?”
 
The answer;
 
“Mr Elliot was further pleased to state that this question was explicitly treated in an opinion given by Sir William Atherton and Sir R. Palmer on the 12th of April 1862, and printed in the annexed parliamentary papers, which exhibit in some degree the origin of the present dispute. But as that opinion is not binding on Colonial Judges, he was to request our opinion whether or not...it would be advisable by Imperial Legislation to extend to the Australian Colonies...the provisions...to the effect that no Colonial law shall be deemed invalid unless it is repugnant to some Imperial Act, which by express enactment or by neces­sary intendment extends to the Colony in which such Colonial law is passed”.
 
To placate the winging South Australian Parliament and to stop the technical objections of Boothy, the Colonial Laws Validity Act was passed. Several things must be noted about the Colonial Laws Validity Act.
 
First, the Act did not remove the power of judicial review.
 
Second, it did not incorporate the Clause 8 as prepared by the South Australian Parliament.
 
In fact, sec­tion 6 (apparently the result of the requested Clause 8) of the 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 power 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 Act was in response to the “technical objections” taken by Boothy. This was not only the purpose expressed in the Opinion, 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 the personality conflict between a colonial parliament and a single Judge.
 
Boothy, true to his namesake, continued to put the boot into Parliament. Perhaps it could be argued by some that he could have tempered his comments more. Be that as it may, after the third attempt of the South Australian Parliament in 1866 to remove Boothy from office was unsuccessful (neither of the succes­sive Secretary of State for the Colonies’ would advise the Queen to remove Boothy) the South Australian Parliament used the “Burke’s Act” to remove him. Before his appeal to the Judicial Committee of the Privy Council, he unfortunately died.
 
AFTER THE COLONIAL LAWS VALIDITY ACT
 
In a case immediately after the passage of the Act, Judges of the Queens Bench considered the question of whether or not, under the Colonial Laws Validity Act, Colonial legislation could be declared void if it was in conflict with the fundamental constitutional enactment, or to the natural law.
 
The case of Phillips -v- Eyre 1870 Q.B. 1, dealt with the issue of the validity of a piece of legislation subject to the Colonial laws Validity Act. It was argued that the Act in question was contrary to the prin­ciples of English Law (page 20.8). The Court entertained two lines of argument, one, that it was contrary to some positive law and, two, that it was contrary to some principle of natural justice. In the decision regarding the invalidity to natural justice the Court went on for nearly five pages of discussion of retro­spective legislation (page 23-28) and found that the Act was not contrary to a principle of natural justice.
 
It is perhaps one of the legacies of the “dark age” of statutory interpretation that Judges in subsequent cases, did not avail themselves of the background information about the Colonial Laws Validity Act. As a result of a lack of information and the teaching of the “Sovereign Parliament” theory, it is submitted that a distortion occurred in the interpretation of the Colonial Laws Validity Act. This distortion did not only occur with the judge who denied themselves information, but apparently with academics as well.
 
For example. R.D. Lumb in his book entitled The Constitution of the Australian States (4th Edition, St Lucia, Q. University of Queensland Press) 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.”
 
He then cites S.3 as the authority, nothing more.
 
In another of his books Australian Constitutionalism (Sydney, Butterworths, 1983) while discussing the Act 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 does not give any authority as to the demise of such a theory but leaves it to the reader to infer that something, perhaps S.2 or S.5 is the authority.
 
It was these books and others (such as Dicey) which were used as the text books of many of the members of the legal profession of Australia. The result on interpretation of the rule of law would be predictable.
 
THE MYTH OF THE SOVEREIGN PARLIAMENT
 
The other aspect which had a great effect on the rule of law in the 19th Century occurred with the re-as­sertion of legal positivism, in particular, the theory of the “Sovereign Parliament”.
 
It is submitted that the majority influence of this new theory was to undermine all the sacrifices of nu­merous generations of the English people. It reduced the great English heritage of freedom, back to the age before law to the age of power. It has placed the Commonwealth countries on a road which will inevitably give it an equality of despotism with the governments of China, Russia and other legal positivist countries.
 
It is submitted, that legal positivism is not objectionable per se. Many aspects of legal positivism, such as the irrebuttable presumption that the registered owners of vehicles are deemed responsible for parking tickets, are completely reasonable. Since such matters are acceptable because they are reasonable it should be apparent that acceptable aspects of legal positivism are under the natural law of reason. That is legal positivism is subject to the natural law.
 
John Austin’s work, “Lectures on Jurisprudence” had a significant influence in the development of the “Sovereign Parliament” theory. To Mr. Austin’s credit was his analytical approach to try and get a sys­tematic arrangement out of the constituent parts of law, that is, the logical arrangement between various legal propositions. The starting point for Mr. Austin’s theory was his own limited version of a society. All his propositions re­late only to his hypothetical society, he did not deal with any other aspects of a society other than the one he postulated. As he never went beyond those aspects, he was only saying that his analysis was directed to the society he had used as a model.
 
Unfortunately, that ‘starting point’ for his analysis was to become something more than it was intended to be. It appears that Mr. Dicey used Mr. Austin’s limited version of a society as his mold in which he was to reform the English system of government - the “Sovereign Parliament” theory.
 
Dicey attempted to cite various authorities in his work to support this reformation; unfortunately, in order to achieve the results he wanted, he had to ‘stretch’ the truth to an uncomfortable degree.
 
For example, Dicey (as did Blackstone) 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.
 
What Dicey omitted to put in his student text was Coke’s many other comments. Such as Coke’s dictum in Dr. Bohnam’s Case 77 ER 646 at 652:
 
“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 1, 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. (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 not a parliamentary word. In my opinion, it weakens Magna Carta, and all of our statutes, for they are absolute, without any saving of sovereign power...Magna Carta is such a fellow that he will have no sovereign." (3 St. Tr. 193)
 
Clearly, Sir Edward Coke, (who sat as Chief Justice to the Kings Bench, Chief Justice to the Common Pleas, and later leader of the Opposition in Parliament) did not consider that Parliament had any more power than the Sovereign itself. This power recognised the distinction between “malum in se” and “malum prohibita”, between law and statute. The King might dispose of a statute that was “malum pro­hibita”, but his power did not extend to the common law, nor to acts declaratory of the common law. (C. H. McIlwain, “The High Court of Parliament and its Supremecy”, New Haven 1910, 311; see aso Thom­as -v- Sorrell Vaughan 330, ER 124)
 
Likewise, Dicey quoted Sir Mathew Hale’s comments on supremacy of parliament. However, it was apparent from Hale’s writings that he considered parliament’s law-making powers as the King’s pow­ers:
 
“In him resides the power of making Laws The Laws are his Laws enacted by him”, yet there is a certain solemnity and Qualification of that Power, namely with the advice and assent of the 2 houses of Parliament, without which no Law can made” (Holdsworth, Hale on Hobbes, appendix 296-7).
 
What is so apparent from reading “The Law of the Constitution” is that Dicey does not support this theory with even one credible piece of authority (The Rule of Law G. Walker, Melbourne University Press, 1988 Chapters 4 & 5) Dicey simply states it as a fact.
The “Sovereign Parliament” theory is inconsistent with the authorities of English legal theory and logically inconsistent. It has been said of this school teacher’s lessons to vulnerable students that the “Sovereign Parliament” theory is “A simple theory, for simple minds, that simply doesn’t work”!
 
It is put forth as a basic proposition that a stream cannot rise higher than its source. Likewise, with 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. The present sovereign simply steps into the shoes of the former sovereign in the fundamental documents of the Constitution.
 
It is submitted that this theory is consistent with English history, consistent with the legal authorities, and logically consistent. The Australian Courts, however, may be reluctant to adopt an interpretation which is different to that which has been taught in school.

Recognising the stress and reluctance that this could cause, the Courts could take comfort from the High Court’s decision in Cole -v- Whitfield (1988) 62 ALJ 303.

DECISION: COLE v WHITFIELD

In that case the Court was confronted with a Section 92 argument under the Australian Constitution. The Court, lifting itself from the “dark age” of statutory interpretation, looked at the history of the constitution­al debates to find out the nature and objectives of the section (page 307F-311B). The analysis culminat­ed on page 315D with:

“What we have said explains some of the reasons why the criterion of operation ceased to command the acceptance of members of the Court, with the consequences that we do not see ourselves as con­strained by authority to accept it.”

Essentially, this single decision of the High Court rewrote the preceding 80 years of High Court authority on Section 92 of the Australian Constitution. Although the Court felt that reference to the Commerce Clause of the American Constitution did not assist the Court (page 316A), it is interesting that the Ameri­can Supreme Court has travelled a similar path of interpretation (316A-G) as the High Court.
Interesting also that both Courts have adopted the same interpretation for their respective sections (316G). Perhaps brilliant minds think alike.

AUSTRALIAN AUTHORITY APPARENTLY AGAINST CONSTITUTIONAL RIGHTS

There are a few Australian cases which could be interpreted in favour of strict legal positivism and against the position that Australians have constitutional rights and the powers of Parliament are not un­limited.

DECISION: GHIA GEE v MARTIN

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 Carta. 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 Carta is not one for serious refutation.”

It is only within the context of the case that it appears that the Judge does not believe the Magna Carta has any value, otherwise the statement could easily be construed to mean that the Mag­na Carta is of such paramount importance in English and Australian law that no one could seriously refute such a proposition.

Unfortunately, the Judge never explained himself or offered authority for his statement. It also appears that no other subsequent case has bothered to use it as authority for anything.

It is interesting that the 1297 confirmation of Magna Carta in Cap.II states:

“And we will, that if any Judgement be given from henceforth contrary to the Points of the Charters aforesaid by the Justices, or by any other our Ministers that hold Plea before them against the Points of the Charters, it shall be undone, and holden for naught.”
The history of the Magna Carta was a superior instrument that was used many times to declare statutes and judicial decisions void. The Magna Carta has been around for a long time, it is doubtful that Griffith C.J. really meant to discard the Magna Carta from Australian law with his one ill-thought-out comment.

DECISION: FISCHER -V- DOUGLAS

The Queensland case of Fisher -v- Douglas ex parte Fischer [1978] Qd.R. 27 at 45, is a typical “sov­ereign parliament” argument. No authority to support the position, no reasoning process to support the position, the “sovereign parliament” is just taken as fact. The judge states at 45C:

“In Queensland, because of the 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 the emotional, they may consequently mislead their audience.”

Should the court find favour with the arguments herein submitted, it would be expected that the Court would not take any of the comments from the Fischer case personally. It is submitted that at least the Fischer case would be easy enough to distinguish, as the initial qualification was, “In Queensland”.

It should also be noted that one does not dispute the conclusion in Fischer, only the dicta.

DECISION: GRACE BIBLE CHURCH v REDDMAN

In Grace Bible Church -v- Reddman [1984] 36 S.A.S.R 376, the Court dealt with the right to freedom of religion and the powers of the State. It appears that the judges relied upon the shaky foundation of Dicey as their authority. Various comments throughout the case could be seen to assist the respondent but may be distinguished in various ways.

The first is at 380.1 where Zelling J. states that “on the face of it” the statement of Bracton is a reference to the Monarch and not to the Parliament. Zelling J. did qualify his statement correctly, however, there is no reason that the statement of Bracton could not be applied to any government under law.

White J. at 385.4 made comments about Parliament exercising its sweeping powers over fundamental rights of individual. This is correct, all the fundamental rights can be regulated by Parliament, it is submit­ted that it is a balancing act between the fundamental rights and the compelling interests of the State.

At the paragraph at page 385.5 there are comments about the absolute power of the State and the questioning of legal philosophers. Since the development of the “Sovereign Parliament” theory was a product of academics, the comments are somewhat irrelevant. It should be noted, contrary to the judge’s statement, that the common law of England as it existed in 1836 did provide for constitutional funda­mental rights. Lastly, the plenary power of a Parliament to make laws for the peace, welfare and good government of the State (ie: police powers) is not in dispute. The Courts cannot inhibit (ie: injunct) the power of the Parliament from making a law. It is a different question, however, as to whether it is a valid law; that is a question that is up to the Courts to decide.

At page 387, White J. continues and correctly indicates that policy is a matter for the Parliament to consider and that on questions of power the Courts have the written Constitution to guide them. He then correctly indicates that the Courts are not the guardian over the manner of the Parliament’s exercise of its powers, however, he omitted to mention the Courts position as the guardian of the individual’s rights. He then uses an emotional and somewhat incomprehensible (see Fischer, supra) argument about every­man’s opinions. He then finishes the paragraph with the “political solution” argument, that is, the sub­stitution for all the individual rights with the single right to vote for the party of your choice (which party? blue with white stripes or white with blue stripes?)

At page 388.2 he continues with the fact that the common law has supported the supremacy of the Parliament (which it has since 1688 over the King). Then he states the common law did not give power to the Court to declare an Act invalid because it infringes or impinges upon the religious freedom. He did not address whether the common law had granted the power to declare an Act invalid because it un­duly infringed or destroyed the freedom. However, it is conceded that, in regard to religious freedom, the common law has a checkered past, and perhaps that common law history of religion was what the Judge was referring to.

Millhouse J. correctly points out the fundamental problem with the appellant’s case was the “Sovereign Parliament” theory (as it so often is) and then goes on to point out some of the problems in legal training in South Australia (page 389.8-390.4).

At page 390.6 he uses the discredited “Bill of Rights” argument (see “The Natural Law Background of Due Process”, Columbia Law Review 31: 56-81), then states the citizens of South Australia do not have rights which may be over-ridden by Parliament, this is unclear as to whether he means by infringement or destroyed. He too finishes with the “political solution” argument.

It is here that one does not dispute the conclusion of the Court in Grace Bible, only the grounds. From the fundamental rights perspective it does not seem that the law was an undue infringement upon the freedom of religion. As a side note, it appears that freedom of religion was recognised in dicta in two early cases in NSW. (Ex Parte The Rev. Geo. King, supra at 1321.3 and Regina -v- Robers, 1850 1 Leg­ge 544 at 571.2)

ENGLISH AUTHORITY APPARENTLY AGAINST CONSTITUTIONAL RIGHTS

Many legal positivists will reach back as far as 1606 in a House of Commons debate (2 St. Tr. 482) in which James Whitlocke (Yelverton in the official report) was alleged to have suggested the theory of par­liamentary sovereignty. The passage the legal positivists rely upon is from 482.2-482.8.

However, a reading of pages 481.9-482 of the report states this in regard to what the King had done:

“ I think he cannot; and I ground my opinion upon these four reasons. -1. It is against the naturall frame and constitution of the policie of this kingdome, which is jus publicum regni, and so subverteth the fundamental law of the realme, and induceth a new forme of state and government. -2. It is against the municipall law of the land, which is jus privatum, the law of property and of private rights. -3. It is against divers statutes made to restraine our king in this point. -4. It is against the practice and action of our common-wealth, contract morem majorum; and this is the modest rule to limit both king’s preroga­tives, and subjects liberties.”

It appears this speech in the House of Common which the legal positivists claim as support actually supports constitutional rights, and the limitations of a sovereign to infringe upon those rights. Whatever power the “king in parliament” had, it was still to be subject to the “fundamental law of the realme”.

Further, by going back to page 479.2 there is this:

“for it is a question of our very essence; not what we shall be called, nor how we shall be divided that we have, but whether we shall have anything or nonthing; for if there be a right in the king to alter the property of that which is ours without consent, we are but tenants at his will of that which we have. If it be in the king and parliament, then have we propertie, and are tenants at our own will; for that which is done by parliament is done by all our wills and consents.”

As can be seen by this passage, at the time of this speech the parliament was not considered a sovereign body, but the representative of the people of England. This supports the position that the word “parlia­ment” in the early documents is not a sovereign body, but the people of England.

DECISION: LEE -V- BUDE AND TORRINGTON

The classic case that the legal positivists use as the foundation for the demise of the natural law is some dicta in Lee -v- The Bude and Torrington Junction Railway Company [1871] L.R. Vol. 6 576. The dicta of Wiles J. at 582.3 is the relevant passage wherein he referred to Coke’s comments in Bonhams Case which were referred to in Day -v- Savage Hob. 87.

The judge qualifies his statement that the dicta “stand as a warning, rather than an authority to be fol­lowed”. It is submitted. that the dicta of Wiles J. is correct to this extent, it does stand as a warning. The Courts have declared Acts of Parliament void before and they will damn well do it again.

It should be clarified that one does not agree with the judge’s comments “We sit here as servants of the Queen and the legislature.” This passage is contrary to the Constitutional basis of the judiciary. In Magna Carta it is stated “We will sell to no man, we will not deny, to any man, either Justice or Right”. The judiciary is more than mere servants of power.

Further, in the Act of Settlement 1870, the judiciary was formally given an independence from the pow­er section of government. The “servants” dicta is also contrary to another legal positivist’s case Duport Steels Ltd. -v- Sirs [1980] 1 W.L.R. 142 at 157B where Lord Diplock states:

“It cannot be too strongly emphasised that the British constitution, though largely unwritten, is firmly based upon the separation of powers; Parliament makes the laws, the judiciary interpret them.”

What may be a rather extraordinary aspect of Wiles J. comments, is that 582.7 he states,

“Having ne­glected to take the proper steps at the proper time to preen the Act from passing into a law, it is too late now to raise objections to it.”

It is not indicated what the “proper steps” were that the judge was contem­plating, however, with all due respect to the judge, it is submitted that the Courts cannot interfere with the operation of Parliament and the making of laws. Perhaps, the judge meant that the plaintiff should have divined that the events were occurring without his knowledge (see page 577.7 paragraph 15) and ap­proached the various members of Parliament “at the proper time” and made submissions to them about the various matters of which he had no knowledge.

DECISION: DUPORT STEELS -V- SIRS

In Duport Steels Ltd. -v- Sirs, supra, at page 157B-F Lord Diplock made some comments that have been relied upon by legal positivists. However, it appears that Lord Diplock is cautiously moving away from strict legal positivism. It is refreshing to see an English Lord make the comment that the constitution is based upon the separa­tions of powers. At 157D he uses three words of interest;

“inexpedient, or even unjust or immoral”. Unfortunately, we are not given a factual situation with which we can associate those words. As will be submitted later, even torture (immoral) could be acceptable under the Constitution in an appropriate case.

At 157F he states “it is for Parliament, not for the Judiciary, to decide whether any changes should be made to the law as stated in the Acts”. Disregarding some aspects of interpretation, this statement is correct, the judiciary does not change legislation, however, it can declare it void.

DECISION: PICKIN -V- BRITISH RAILWAYS

In Pickin -v- British Railway Board [1974] A.C. 765 at 782 Lord Reid stated this well-known passage;

“The idea that a court is entitled to disregard a provision in an Act of Parliament on any ground must seem strange and startling to anyone with any knowledge of the history and law of our constitution, but a detailed argument has been submitted to your Lordships and I must deal with it. I must make it plain that there has been no attempt to question the general supremacy of Parlia­ment. In earlier times many learned lawyers seem to have believed that an Act of Parliament could be disregarded in so far as it was contrary to the law of God or the law of nature or natural justice, but since the supremacy of Parliament was finally demonstrated by the Revolution of 1688 any such idea has be­come obsolete.”

It is doubtful that Lord Reid really meant that “nature” would not be able to disregard a Parliamentary law regulating the weather, although it does seem that many advocates of the “Sovereign Parliament” theory would support this view. It appears that Lord Reid’s position denies the existence of the natural law or fundamental rights of the citizen. This change in English history is based upon a curious twist in logic that has allowed the new sovereign, the Sovereign Parliament, to usurp those rights. However, the strength of conviction of the English people to the existence of their fundamental rights is best illustrated by the Magna Carta and the Bill of Rights of 1688.

Both documents were products of the people, forged from revolutions, they were not statutory products of the parliament. Those documents declared fundamental rights and principles that the government was to respect if the government wished to keep power. The people did not give the government the right to abrogate those rights simply by allowing the government to ratify those documents. The concept of those documents was a curtailment of tyranny by the sovereign.

Lord Reid’s comments are logically inconsistent in that in his view the documents gave tyrannical power to the new sovereign - the sovereign parliament. The statement of Lord Reid is inconsistent on its face, the Bill of Rights of 1688 is a Bill of RIGHTS of the people. It appears that literal statements made in the Bill of Right may have been relied upon without serious thought given to the history of the period. For example, in the opening provision it states:

“That the pretended power of suspending of laws or the execution of laws by regall authoritie without consent of Parliament is ilegal”.
The references to Parliament in the early legislation are analogous to the people of England, and not to a sovereign body. In the early documents the sovereign was the King or Queen, and today in Australia even if the parliament were sovereign, it would be merely stepping into the shoes of the sovereign in those early documents. Therefore, the Sovereign Parliament would not only be exercising the rights and duties of the early sovereign but would also be subject to the restrictions and liabilities of the former sovereign.
This line of reasoning is not only logically consistent, but was originally touched upon by Judge Moore in R. -v- McConnel (1985) 2 NSWLR 269, as stated in that decision:

“Both Coke and Stephen’s commentaries on the Laws of England, 7th ed (1874) vol II at 469 affirm the Magna Carta was for the most part declaratory of the principal grounds of the fundamental laws of England. Stephen (at 470) states that the Bill of Rights itself recognises that the rights asserted therein are the “true, ancient and indubitable rights of the people of this Kingdom”.
It is the duty of the courts to promote constitutional rights: R -v- Secretary of State for Home De­partment: Ex Parte Phansokar [1976] KB 606 at 626 per Scarman L.J. A constitution, and in particular, that part of it which protects and entrenches fundamental rights and freedoms, is to be given a generous and purposive construction: Attorney-General of Gamia -v- Jobe [1984] 1 AC 689 at 700 (Privy Coun­cil).

Magna Carta and the Bill of Rights of 1688 were declarations of the rights of the citizen, they are claims of rights, not a request. Declarations of existing rights are significantly different from common statutes. The early 19th Century cases in NSW make this point clear time and again.

For example in 1839, Ex Parte Nichols 1 Legge 123 at 131:

"The statute at once professed to be declaratory, and...was suffered to pass as a declaratory Act. Mr. Fox, in his introductory speech, expressly characterised it as a declaratory bill;...if the committee were clear as to the law on the subject, he thought their wisest and most proper measure would be, to enact a declaratory law respecting it. If the committee were of opinion that the high authorities (namely the judges) on the other side of the question made the law doubtful, they might settle the law on the subject in the future, without any regard to what it had been in times past...This bill was not debated as a party question, but as a subject of existing law, justice, and constitutional rights”.

Also in that case, although part of the decision of Stephen J. was lost, the commentator at page 139 indicated that Stephen J. regarded the statute

“as declaratory; or in other words, though of no value as an enactment, yet decisive as a legislation affirmation of a fact, as an authoritative statement, that the privilege claimed in this case always existed."

The High Court of Australia has noted these declarations of fundamental rights as being part of the “law of the land”, for example in Regina - v- Bolton: Ex Parte Beane, 70 ALR at 230 Justice Brennan stated:

“Many of our fundamental freedoms are guaranteed by ancient principles of the common law or by ancient statutes which are so much of the accepted constitutional framework that their terms, if not their very existence, may be overlooked until a case arises which evokes their contemporary and undi­minished force”.

Justice Deane at page 236 expressed similar thoughts:

“It cannot be too strongly stressed that these basic matters are not the stuff of empty rhetoric. They are the fabric of the freedom under the law which is the prima facie right of every citizen and alien in this land. They represent a bulwark against tyranny”.
Obviously, they would not be much of “bulwark” if the new sovereign could simply treat them on the same footing as the “Dog Act”. Unfortunately, this approach was suggested, but thankfully not decided in another case.

DECISION: COBB -V- KROPP (Queensland)

In Cobb & Co. Limited Anors -v- Kropp [1965] Qd. R. 285 there was dicta in regard to subsequent legislation which could be inconsistent with the Bill of Right of 1688. The legislation was not inconsistent, so the position of the Bill of Rights was not decided. At page 288.7, the defendant relied upon various authorities to support the proposition that “In any case the Bill of Rights has no greater efficacy that any other Act of Parliament”. Unfortunately, for the defendant, none of the authorities cited supported that position.
That did not stop the Court from making some rather interesting dicta. At page 292.2 Stable J. consid­ered the Bill of Rights a common statute. It is unclear from his statement why he held such a view, as he did not want to entertain the question.

Gibbs J. at page 298 expressed similar comments about the Bill of Rights being a common statute. Howev­er, with his view about the lack of inconsistency between the two documents, the question of repeal by inconsistency did not have to be further examined.
Hart J. at 301.9 - 302.5 made some comments about the statutes and constitutions. It appears that the judges in Queensland consider the Bill of Rights as not forming part of the Constitution of Queensland.

It is submitted that this is not the case in Victoria as it is not the case in NSW.

The early NSW cases indicate that the fundamental documents such as Magna Carta, Petition of Right, Statute of Monopolies, Bill of Rights, Habeas Corpus Act - all were considered part of the Constitution of the Colony of NSW. If any doubt ever existed, then the Parliament itself has settled the matter by declaring such documents as part of the Constitution in the Imperial Laws Validity Act 1969.
In Victoria, The Constitution of the Colony of Victoria was drafted in Melbourne by Victoria’s first Legislative Council in 1853-54, where it was thereafter sent to England and approved by the British Parliament in 1855, existing solely as an Act of the British Parliament until the 22nd of October 1975 when the Constitution was proclaimed as an Act of the Parliament of Victoria.

Under The Constitution Act 1975- Section 3, it is clearly stated that the laws of England are to be applied in the administration of justice.

CONCLUSION AS TO EXISTENCE OF FUNDAMENTAL CONSTITUTIONAL RIGHTS.

When one examines the history of NSW, and Victoria, it becomes apparent that the people of these colo­nies had fundamental constitutional rights at least until the mid-1800’s. If the people lost such significant rights one would expect some significant event to herald such a loss. If such an event occurred, what was this event? When did it happen? Why did it happen? Who did it, and under what authority?

It is submitted to be obvious that such an event never occurred. As such, the people of Victoria, like the people of NSW, still have their fundamental constitutional rights as Subjects of the Queen, and English freemen.

The plaintiff pleads that the workers vaccine mandates are ultra vires the Constitutional Enactments of NSW as indicated in the Imperial Laws Application Act, 1969 No. 30, Second Schedule, Part 1 (Application Act), and are ultra The Victorian Constitution Act, 1975, Section 3.

Specifically, the plaintiff pleads that the work­ers vaccine mandates are ultra vires the Magna Carta (1297), The Charter of Liberties (1100), The Liberty of Subject Act (1354), Statute of Monopolies (1623-4), Petition of Right (1627) and Bill of Rights (1688).