AUSTRALIAN PUBLIC LAW : LAWS 1205

SEMESTER 1, 2001

QUESTION 3

MARK: 80

Part (i)

Bill's entitlement to claim under the scheme will depend upon its constitutional validity, discussed below, and whether the Reconciliation with Indigenous Australians Act 2001 ("the Act"), and hence the scheme, applies extra-territorially to land in Ipswich. []

The ability of the NSW Parliament to legislate extra-territorially derives from s2(11) of the Australia Act 1986 (Cth). [] The issue then is whether this Act seeks extra-territorial operation, and whether it therefore applies to Bill. The test proceeds in four parts:

  1. On the facts, does the law apply extra-territorially? It will be noted that Bill is resident in Qld and the land in question is also located there, while the Act is a NSW one. The question is satisfied. []
  1. Did the NSW Parliament intend the law to have this operation? There is a statutory presumption against this (Morgan v White) but it is rebuttable. The language of the Act appears to rebut the presumption via its generality []: "any Aboriginal person", "their traditional lands" (not specifically in NSW). Although s1 refers to a NSW compact only there is no indication [] that the scheme itself is to be limited to NSW, and it is under the specific scheme that Bill seeks compensation. [] The Compact Committee provides that the land can be that now part of another state and this form of delegated legislation (s3) would not have been possible if Parliament had not intended such extra-territorial operation [], given that Parliament can disallow delegated legislation through its supremacy. This is aside from the force of the scheme under s4. This issue seems to be made out.
  1. Does the NSW Parliament have the constitutional power to confer that operation? Given s2(1) of the Australia Act above [], it does, subject to the so-called nexus test from Broken Hill South v Commissioner of Taxation. This test requires a connection between something, here the land in Ipswich, and NSW. [] The connection may be "remote or general". [] The fact that the land and its Aboriginal owners were, prior to 1859 part of NSW, this is a sufficiently close nexus. If it were not, Bill is a dispossessed Aboriginal and, as above, the scheme is not limited (apparently) in its application - a further connection. [] Even noting that the nexus test is applied more strictly across state borders (Cox v Tomat), the nexus seems sufficiently beyond the remote to satisfy this requirement of the test. [] It is irrelevant that the scheme be unfair to Queenslanders or any other (Broken Hill South).
  1. As there is no apparent conflict with other state laws, this question does not apply.

It therefore seems probable that Bill can claim compensation under the scheme because of its extra-territorial operation. []

Part (ii)

The constitutional validity of this scheme depends on two issues: was the Act validly passed [] and does s4 constitute an unacceptable abdication of legislative power. []

Firstly, the NSW Parliament has plenary power (s5, NSW Constitution; and per Clayton v Heffron). It therefore is able to pass this act, recognising that there are no express or implied constitutional limitations applicable. []

The question then becomes one of abdication. A part of the principle of parliamentary supremacy is that Parliament can legislate as and how it wishes (BLF Case) []. However, an exception is the principle that Parliament cannot abdicate its power (Comalco v Attorney-General (Qld)) []. The general indication of this is the creation of another body with legislative power but s4 merely seeks to prevent amendment for a period of 10 years [?].

According to Comalco, a delegation case, the abdication had to be "impossible or very difficult to withdraw"; it must also be a complete abdication of legislative power (Dean v Attorney-General (Qld)) []. On these facts, Parliament has indeed completely given up its legislative power for the 10 years: "shall not be amended" [].

However, has this alleged abdication been made "irrevocable" or "very difficult to withdraw". There is no indication of entrenchment in the Act [], suggesting that Parliament retains the power to repeal the Act, but in a strictly logical sense, this is also an "amendment". Hence does the 10 years amount to irrevocability. Abdication was not found in the case of Dean above because Parliament retained power to approve delegated legislation []. Here there is no such power and [?], further, Parliament retains to right to supervise or disallow the scheme [?] drawn up by the Compact Committee, which is automatically binding via s4. Direct legislative power is lost (per Comalco) [].

Hence, Parliament has apparently abdicated power on two grounds: the delegation to the Compact Committee and the 10 year provision, both of s4 of the Act. Hence the Act establishing the scheme is probably constitutionally invalid [?].

Part (iii)

The appointment of the Chief Justice as adjudicator of disputes under the scheme depends for its validity upon the persona designata doctrine of Grollo v Palmer and Wilson v Minister for Aboriginal Affairs. []

Grollo v Palmer established that judicial officers, such as the Chief Justice, could undertake non-judicial functions in their personal capacity []; Wilson qualified this by adding that such functions cannot be "inconsistent with the maintenance of public confidence in the judiciary"[].

Whether adjudicating disputes under the scheme is a judicial function leads one to the case of Polyukhovich v Cth, where Mason CJ described it as "an elusive concept". R v Kirby; Ex Parte Boilermakers Society referred to punitive powers and dispute resolution as judicial functions []. The proposed function of the Chief Justice is to adjudicate disputes but there is no suggestion that this is to be by adversarial process and his decision cannot be binding (Brandy v HREOC) []. Therefore this will be a non-judicial function [].

Is it inconsistent with judicial independence (per Wilson)? [] The test enunciated in Wilson was in two parts:

  1. Is the function to be performed independently of the legislature to executive other than the law? All the facts reveal are that the Chief Justice is to adjudicate disputes. Although not conclusive, one can imply from this that he is to adjudicate the disputes independently [], as he would in court, but more details are required for certainty [].
  1. The function cannot involve a "political discretion". There is no evidence of this. The Chief Justice does not appear to have been given any directions as to how he must resolve disputes or on what merits he must make his judgment []. As one judge suggested in Wilson, the appointment of a judicial officer to a function such as this [] is probably designed to confer the perception of judicial independence on the new function [], rather than detract from it. This suggestion has found favour with academics, notably in relation to the decision in Kable v DPP, which also set out the principle that judicial independence is to be a primary consideration.

There is no evidence available to suggest that the conferring of this non-judicial power of adjudication on the chief justice would compromise the perception of the independence of the judiciary. It seems in fact comparable to the appointment of judicial officers t bodies such as the AAT []. Hence, the appointment is very probably constitutionally sound [].