Kable v DPP (NSW) [1996] HCA 24

Kable v DPP (NSW) [1996] HCA 24 (Dawson J. at p 11 – 12):

“But the important thing is that for present purposes the words “peace, welfare, and good government” are not words of limitation. As this Court observed in Union Steamship Co of Australia Pty Ltd v King (39):

“They did not confer on the courts of a colony, just as they do not confer on the courts of a State, jurisdiction to strike down legislation on the ground that, in the opinion of a court, the legislation does not promote or secure the peace, order and good government of the colony (40). Just as the courts of the United Kingdom cannot invalidate laws made by the Parliament of the United Kingdom on the ground that they do not secure the welfare and the public interest, so the exercise of its legislative power by the Parliament of New South Wales is not susceptible to judicial review on that score.”

Up to that point, that passage would appear to be a complete answer to any suggestion that there are common law rights which are so fundamental that they cannot be overturned by legislation, but the Court added (41):

“Whether the exercise of that legislative power is subject to some restraints by reference to rights deeply rooted in our democratic system of government and the common law (see Drivers v Road Carriers (42); Fraser v State Services Commission (43); Taylor v New Zealand Poultry Board (44)), a view which Lord Reid firmly rejected in Pickin v British Railways Board (45), is another question which we need not explore.”

Those words were prompted by remarks of Cooke J in the New Zealand Court of Appeal to the effect that “some common law rights may go so deep that even Parliament cannot be accepted by the Courts to have destroyed them” (46).

As this Court observed, that view was rejected by Lord Reid in Pickin v British Railways Board (47). There he said:

“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 … 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.”

Lord Reid’s reference to earlier times would appear to hark back to the view expressed by Coke CJ in Bonham’s Case (1572). He said:

“And 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”.

Academic debate over the meaning of those words continues to the present time. It is unclear whether Coke CJ was intending to say that Acts of Parliament which are repugnant to the common law are void or whether he was merely laying down a rule of statutory interpretation. If he was intending the former, he appears to have had second thoughts, because in his Fourth Institute he described parliament’s power as “transcendent and absolute”, not confined “either for causes or persons within any bounds”. He there contemplated the enactment of bills of attainder without trial and statutes contrary to Magna Carta without any suggestion of their invalidity.

However, Coke was not alone and there were other early expressions of opinion which appear to suggest that courts might invalidate Acts of Parliament which conflict with natural law or natural equity. But they are of academic or historical interest only for such views did not survive the Revolution of 1688 or, at the least, did not survive for very long after it. Judicial pronouncements confirming the supremacy of parliament are rare but their scarcity is testimony to the complete acceptance by the courts that an Act of Parliament is binding upon them and cannot be questioned by reference to principles of a more fundamental kind. Indeed, it is a principle of the common law itself “that a court may not question the validity of a statute but, once having construed it, must give effect to it according to its tenor.”

(at 16.)… In the New South Wales Court of Appeal, Kirby P expressed his agreement with Lord Reid in British Railways Board v Pickin (62). In BLF v Minister for Industrial Relations he said (63):

“I agree with Lord Reid‘s conclusion. I do so in recognition of years of unbroken constitutional law and tradition in Australia and, beforehand, in the United Kingdom. That unbroken law and tradition has repeatedly reinforced and ultimately respected the democratic will of the people as expressed in Parliament. It has reflected political realities in our society and the distribution of power within it.” 6

Click to access kable-v-dpp-nsw-1996-hca-24.pdf

.