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The High Court of Australia has the power of judicial review of legislation, including federal legislation made by the Parliament of Australia, for conformity with the Constitution of Australia, and therefore the court may declare any law unconstitutional and invalid.

Is there a list of cases in which the High Court of Australia has used this power and declared a federal law invalid?

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2 Answers 2

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Judicial review

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As always, Inigo Montoya, is correct - declaring a law unconstitutional is not judicial review in Australia, although it may be a consequence of a judicial review. Judicial review is the power of the courts (the judiciary) to review decisions of executive government e.g. a decision of a council in a development application or the decision of the Minister in an immigration case.

Of course, in American English, which is not the kind the High Court of Australia uses, judicial review does mean what you think it means - so you’re only wrong in most of the World rather than all of it.

Unconstitutionality

The High Court of Australia, like all common law courts, cannot veto legislation nor does it give advisory opinions. It exists only to decide controversies between litigants or in criminal cases, either as part of its original jurisdiction or as the final appellate court (since 1975) for all Federal, State and Territory law.

In deciding a case it can decide that Parliament has exceeded its Constitutional power and deem legislation ultra vires.

This Parliament House web page gives the following representative list:

  • Petroleum and Minerals Authority case—The High Court ruled that the passage of the Petroleum and Minerals Authority Bill through Parliament had not satisfied the provisions of section 57 of the Constitution and was consequently not a bill upon which the joint sitting of 1974 could properly deliberate and vote, and thus that it was not a valid law of the Commonwealth.

  • McKinlay’s case—The High Court held that (1) sections 19, 24 and 25 of the Commonwealth Electoral Act 1918, as amended, did not contravene section 24 of the Constitution and (2) whilst sections 3, 4 and 12(a) of the Representation Act 1905, as amended, remained in their present form, the Representation Act was not a valid law by which the Parliament otherwise provides within the meaning of the second paragraph of section 24 of the Constitution.

  • McKellar’s case—The High Court held that a purported amendment to section 10 of the Representation Act 1905, contained in the Representation Act 1964, was invalid because it offended the precepts of proportionality and the nexus with the size of the Senate as required by section 24 of the Constitution.

  • Postal allowance case—The High Court held that the operation of section 4 of the Parliamentary Allowances Act 1952 and provisions of the Remuneration Tribunals Act 1973 denied the existence of an executive power to increase the level of a postal allowance—a ministerial decision to increase the allowance was thus held to be invalid.

  • Roach’s case—The High Court found in 2007 that amendments to section 93 of the Commonwealth Electoral Act 1918, to remove the entitlement to vote from all persons serving a sentence of imprisonment, were invalid, being inconsistent with the system of representative democracy established by the Constitution.

  • Rowe’s case—During the 2010 general election campaign, the High Court declared invalid amendments to the Commonwealth Electoral Act 1918 which had reduced the time available for updating the electoral rolls after the issue of writs.

  • Cases involving Commonwealth expenditure—in Combet (2005) the High Court rejected arguments that the broad terms of statements in an Appropriation Act were such that the Parliament could not be said to have authorised certain expenditure. The effect was that it was recognised as a matter for the Parliament, and not the courts, to determine the level of detail in such provisions. In Pape (2009) the Court held that a parliamentary appropriation was a prerequisite for the lawful availability of money for expenditure, but not in itself authority for expenditure; and that authority for Commonwealth expenditure must be found in the executive power or in legislation under a head of power in the Constitution. In this case the Court upheld the validity of the Tax Bonus for Working Australians Act (No. 2) 2009, but in Williams (2012) and Williams (No. 2) (2014) the Court held that the Commonwealth did not have the power to make payments under funding agreements (in this instance in relation to school chaplaincy) without the legislative authority to do so.

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  • +1 for a good answer and examples, and if I could, another +1 for Inigo Montoya...
    – sharur
    Jul 9, 2021 at 23:40
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    Why shouldn't the term "judicial review" also include review of legislation by courts even in Australia? According to Wikipedia's general article about "judicial review", it (generally) means review of (both) legislative and executive actions. Furthermore, this article titled "Australian Judicial Review" (by an AU university) clearly describes the review of constitutionality of laws by courts (in Australia) as judicial review...
    – n00p
    Jul 10, 2021 at 0:50
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    @n00p Washington University is a US institution (Australian universities are named for Australian cities and luminaries, not American ones) and the journal is about foreign (Australian) law. Yes, the author is a Victorian barrister but because she’s writing for an American audience she’s using American English. Wikipedia has a tendency to slant American - the specific country articles on judicial review make the distinction.
    – Dale M
    Jul 10, 2021 at 3:33
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    In Australian usage, judicial review usually means judicial review of administrative action, but it is not ”wrong” to use the term in its broader sense. As Gummow J said in Momcilovic v The Queen at [156]: “Judicial review of both the validity of legislation and the lawfulness of administrative action is … an accepted part of the Australian legal landscape.”
    – sjy
    Jul 10, 2021 at 7:31
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The list from House of Representatives Practice quoted in Dale M's answer is limited to "matters directly affecting the Parliament and its proceedings," and omits some historically significant cases, summarised below, in which the High Court found that a federal law was invalid.

Huddart Parker & Co Pty Ltd v Moorehead (1909) 8 CLR 330

Huddart Parker, a Victorian company, had been convicted of failing to comply with an order of Moorehead, a Customs officer, to answer questions about suspected offences against sections 5 and 8 of the Australian Industries Preservation Act 1906, which sought to prohibit unfair competition and monopoly by foreign, trading and financial corporations.

Applying the now-defunct reserve powers doctrine, the Court found that the sections were invalid, because section 51(xx) of the Constitution does not empower the Commonwealth "to control the operations of a corporation which lawfully enters upon a field of operation, the control of which is exclusively reserved to the States."

Huddart Parker's conviction was set aside. The Hughes government proposed the 1911 referendum to amend the Constitution to overcome this decision, which was unsuccessful. However, the High Court overturned its own decision and expanded the reach of section 51(xx) in Strickland v Rocla Concrete Pipes Ltd (1971) 124 CLR 468.

Attorney-General (Vic); Ex rel Dale v Commonwealth (Pharmaceutical Benefits Case) (1945) 71 CLR 237

The Chifley government passed the Pharmaceutical Benefits Act 1944, which was criticised by Dale and other medical doctors as an unconstitutional plan to nationalise healthcare. The High Court found that the Act was not authorised by the appropriation power in section 81, or the incidental power in s 51(xxxix), of the Constitution, and was therefore invalid.

In response to this decision, the successful 1946 referendum resulted in the insertion of section 51(xxiiiA) of the Constitution, which allows Parliament to legislate with respect to:

The provision of maternity allowances, widows' pensions, child endowment, unemployment, pharmaceutical, sickness and hospital benefits, medical and dental services (but not so as to authorize any form of civil conscription), benefits to students and family allowances

Melbourne Corporation v Commonwealth (State Banking Case) (1947) 74 CLR 31

The Chifley government also passed the Banking Act 1945, which sought to nationalise the banking system by prohibiting (in this case) the National Bank of Australasia from acting as the bankers of the City of Melbourne. The High Court found that this legislation was not authorised by section 51(xiii) of the Constitution, which does not authorise legislation directed to the control or hindrance of the States in the execution of their governmental functions.

Bank of New South Wales v The Commonwealth (Bank Nationalisation Case) (1948) 76 CLR 1

The Chifley government responded to the State Banking Case by passing the Banking Act 1947, which sought to nationalise private banks by providing for their shares, assets and liabilities to be transferred to the Commonwealth Bank. The High Court found that these laws provided for the acquisition of property other than on just terms, and were therefore inconsistent with section 51(xxxi) of the Constitution.

The Commonwealth unsuccessfully appealed the High Court's decision to the Privy Council in Commonwealth v Bank of New South Wales (1949) 79 CLR 497. The Menzies government was elected in 1949, ending the bank nationalisation policy.

Australian Communist Party v Commonwealth (1951) 83 CLR 1

The Menzies government implemented an election promise by passing the Communist Party Dissolution Act 1950. The validity of the Act was immediately challenged by the Communist Party and various trade unions. After a hearing over 24 sitting days, the High Court found that the Act was invalid.

The Commonwealth argued that the law was supported by the defence power in section 51(xxxix) of the Constitution. While the High Court accepted that the Constitution authorised laws protecting the Commonwealth from sedition and subversion, the Act did not prescribe any rule of conduct or prohibit specific acts or omissions. Instead, the law applied directly to the Communist Party and related individuals. It was significant that unlike previous cases concerning extraordinary uses of the defence power, the Act was passed during peacetime.

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