//
© 2026 Zoe. All rights reserved.
Zoe is a legal information platform. Always consult the Federal Register of Legislation for authoritative text.
[1998] HCA 77
procedural. Each application for removal was dismissed. The applicants in M65/1998, M93/1998 and M95/1998 were ordered to pay the respondents' costs. No costs order was made in M35/1998 or M63/1998 because...
Five applicants asked the High Court to take over proceedings pending in other Australian courts. They argued that a supposed break in sovereignty, changes to the Queen's title, international treaties and electoral defects undermined the validity of legislation. Hayne J held that these arguments did not identify an arguable constitutional defect. The relevant domestic question was what law Australian courts must apply, and covering cl 5 of the Constitution supplied the framework for that inquiry. Treaties do not automatically become Australian domestic law, and the material did not show a failure to give Royal Assent under s 58. The applications were dismissed; one was also refused because removal would fragment a pending criminal process.
AI-generated legal information, not legal advice. Zoe can make mistakes. Check the cited source, and for advice about your situation consult a qualified Australian lawyer.
2,216 words · generated 05/10/2026
Hayne J considered five applications together. Each applicant asked the High Court to remove an existing proceeding from another Australian court under s 40 of the Judiciary Act 1903 (Cth), on the basis that the cause arose under the Constitution or involved its interpretation ([1]-[2]). The applications had different underlying disputes, but shared a set of arguments challenging the validity or operation of a broad range of Commonwealth and State legislation.
40 cited instruments linked from this judgment.
The first proceeding, Joosse v Australian Securities and Investment Commission, arose from ASIC proceedings in the Melbourne Magistrates Court. ASIC alleged that two directors of Bellechic Pty Ltd, then in liquidation, had breached provisions of the Corporations Law ([3]). The applicants challenged, among other legislation, the Corporations Law and several court, police, workplace relations and taxation statutes.
Burke concerned a pending criminal trial in the County Court of Victoria. The accused had been arraigned on counts including using a false document and obtaining, or attempting to obtain, a financial advantage by deception. No jury had been empanelled, and the trial was fixed to begin in April 1999 ([4]). Bowers concerned a negligence action about veterinary care of a racehorse, while Young related to a Federal Court bankruptcy proceeding. The material in those two matters revealed little about the underlying disputes ([5]-[6]). David Keys Australia Pty Ltd concerned a Federal Court proceeding involving companies associated in some way with the Joosse applicants ([7]).
The applicants' main theme was that an alleged “break in sovereignty” meant that some legislation was invalid. Hayne J identified three versions of this argument: that the Constitution's origin as an Act of the United Kingdom Parliament conflicted with sovereignty resting in the Australian people; that changing the Queen's style and title affected the validity of Royal Assent; and that Australia's international status and treaty arrangements had defects because of registration issues ([11]-[13]). Some applicants also argued that electoral defects invalidated later legislation, or that international human rights instruments had direct domestic effect ([13]).
Hayne J dismissed every application. For Young, Bowers and David Keys, the lack of information about the underlying causes was itself a reason for refusal, because the applicants had not demonstrated a constitutional issue ([8]). Burke presented an additional problem: removing it would fragment the criminal process ([9]). The court also found that none of the arguments advanced across the applications was arguable or had sufficient merit to justify removal ([15], [23]).
The judgment separates questions about Australia's political or international status from the legal task of deciding what law an Australian court must apply. Hayne J accepted that Australia's history could be understood as a gradual emergence into sovereign independence, and noted that people might differ about when that occurred ([17]). But that historical and political account did not decide whether particular legislation was valid in the Australian legal system.
The relevant domestic question was “what law is to be applied in the courts of Australia” ([18]). Hayne J identified covering cl 5 of the Constitution as central to that question. It provides that the Constitution and laws made by the Commonwealth Parliament under it bind courts, judges and people throughout the Commonwealth, notwithstanding State laws ([19]). The judgment also referred to ss 106-108, which continue State Constitutions, State parliamentary powers and existing State laws, subject to the Constitution ([19]). The applicants' international-status and Imperial-legislation arguments did not identify a defect in the validity of the legislation challenged in their proceedings.
The Royal Assent argument also failed. The applicants said the Royal Style and Titles Act 1973 (Cth) had brought about a fundamental constitutional change, leaving Royal Assent to a number of Commonwealth Acts invalid ([12], [20]). Hayne J pointed to ss 58-60 of the Constitution, particularly s 58, which provides for the Governor-General to declare assent in the Queen's name. The judgment states that there was no material suggesting that this had not been done for the Commonwealth Acts in question ([20]). The applicants had therefore not established an arguable connection between the change in royal style or title and invalid assent.
On treaties, the judgment applied the distinction between international obligations and domestic legal effect. Hayne J stated that provisions of a treaty to which Australia is a party do not form part of domestic law unless incorporated by statute. He added that the United Nations Charter did not itself have the force of law in Australia ([21]). The applicants' reliance on international arrangements and human rights instruments therefore did not establish domestic rights or obligations, much less invalidate the statutes they challenged.
Finally, the court treated the removal application in Burke as raising a process-specific concern. It said that removal would fragment the criminal process, and referred to authorities for the proposition that criminal proceedings should not be interrupted to test interlocutory rulings ([9]). This was an independent reason to refuse that application, apart from the court's view of the substantive arguments.
This judgment did not purport to establish a new constitutional settlement or to decide when Australia became a sovereign nation. Hayne J expressly recognised that views may differ about the timing of Australian sovereignty or independence ([17]). Instead, the reasons identify the domestic legal question as distinct from those broader historical and political debates.
For the matters before him, the governing constitutional framework remained the text and structure of the Constitution, including covering cl 5 and ss 106-108 ([19]). The judgment rejected the proposition that international recognition or a perceived change in political sovereignty, without more, meant that legislation was no longer binding in Australian courts. It also applied the principle that treaty obligations do not automatically become domestic law unless incorporated by statute ([21]).
The judgment's treatment of Royal Assent likewise applied the existing constitutional text, rather than deriving a new requirement from the Royal Style and Titles Act. Section 58 supplied the relevant mechanism, and the applicants had not produced material suggesting non-compliance in the challenged Acts ([20]).
The judgment also referred to earlier authority on electoral defects. It noted that defects in the election of a member do not necessarily invalidate proceedings of the relevant House, and that some defects in the Commonwealth Electoral Act may not invalidate elections ([22]). However, the court did not decide a distinct electoral challenge. It treated those arguments as dependent on the three principal themes it had already rejected ([22]).
Accordingly, the judgment's contribution in this set of applications is its application of established constitutional and domestic-law principles to arguments for removal. It does not purport to provide a comprehensive account of all possible limits on legislative power, or to resolve every possible question about international law and Australian law.
At [18], Hayne J states: “The immediate question is what law is to be applied in the courts of Australia.” In plain English, the court's immediate task was not to determine Australia's status in world affairs or reconstruct the whole history of independence. It was to identify the legal rules that govern the cases before Australian courts.
At [19], he says: “That question is resolved by covering cl 5 of the Constitution.” The passage directs attention to the Constitution's rule that it and Commonwealth laws made under it bind courts, judges and people throughout the Commonwealth. The reasons add that State constitutional and legislative arrangements continue under ss 106-108, subject to the Constitution. The passage explains why the applicants' broad sovereignty arguments did not, by themselves, displace legislation.
At [20], Hayne J discusses the Royal Style and Titles Act and the constitutional rules for assent. He says the Act did not bring about the fundamental constitutional change alleged. The practical point is that the relevant question was whether assent was given in the way s 58 provides, not whether the Queen's Australian title had changed. The judgment records no material suggesting that the required assent was absent.
At [21], the judgment states that treaty provisions “do not form part of domestic law unless incorporated by statute”. In plain English, Australia's participation in an international agreement does not alone make its provisions enforceable as domestic law. The court used this principle to address the applicants' reliance on human rights instruments and other international dealings.
At [9], the court says removal in Burke would lead to “the fragmentation of the criminal process”. This explains why the criminal proceeding was treated differently from the other matters. The judgment says that interrupting a criminal proceeding to test interlocutory rulings was a reason to refuse removal, and cites earlier authorities for that practice.
The decision is most directly relevant to applications seeking removal to the High Court under s 40 of the Judiciary Act 1903 (Cth), where the applicant needs to demonstrate that the cause, or some part of it, arises under the Constitution or involves its interpretation. It highlights two related points: the constitutional connection must be demonstrated on the material, and the proposed issue must have sufficient merit to justify removal ([8], [15]).
It is also relevant where a party argues that Australian legislation is invalid because of a general “break in sovereignty”, a change in the Queen's title, Australia's international status, or the registration history of treaties. Hayne J's approach is to ask whether the argument identifies a defect under the Australian legal rules for valid law, rather than relying only on political or international characterisations ([16]-[21]).
For treaty-based arguments, the judgment is relevant where a party asserts that an international instrument itself creates domestic rights or obligations. The reasons state the incorporation principle and apply it to the human rights instruments and United Nations Charter raised in the applications ([21]). The judgment does not address every way international law might be relevant to domestic legal interpretation; its focus is on whether the instruments, without statutory incorporation, had direct domestic legal force in the arguments advanced.
In a pending criminal matter, the decision is relevant to a request that would interrupt the ordinary progress of the trial to obtain review of interlocutory matters. The judgment identifies fragmentation of the criminal process as a reason to refuse removal in Burke ([9]). The decision does not suggest that every criminal-related removal application must fail; its stated concern is the interruption of the process in the circumstances described.
The supplied judgment gives no information about decisions after 21 December 1998 that cite or apply Joosse. It therefore does not support conclusions about how later courts have treated the decision, whether they have adopted particular passages, or whether they have confined its reasoning.
Within its own reasons, Hayne J cited earlier authorities for several propositions. On avoiding interruption of criminal proceedings, he referred to R v Iorlano, Re Rozenes; Ex parte Burd, and R v Elliott ([9]). For the relationship between sovereignty and constitutional law, he cited Nationwide News, Australian Capital Television and Theophanous ([12]), along with China Ocean Shipping and Nolan on the historical development of Australian independence ([17]). For treaty incorporation, he cited Minister for Immigration and Ethnic Affairs v Teoh and the Industrial Relations Act Case ([21]). He cited Bradley v The Commonwealth for the domestic status of the United Nations Charter, and Vardon v O'Loghlin and Attorney-General (Cth); Ex rel McKinlay v The Commonwealth on electoral defects ([21]-[22]).
Those citations show the sources Hayne J relied on or referred to in the judgment. They do not establish how Joosse was treated by courts after it was decided. A separate review of later judgments would be required to answer that question, and no such later sources are included in the supplied text.
The reasons do not determine when Australia became a sovereign or independent nation. Hayne J notes that opinions differ on that historical question and explains why it was not decisive for the applications ([17]-[18]). The judgment therefore should not be read as fixing a date for the attainment of sovereignty.
Nor does it decide whether any particular challenged statute in the underlying proceedings was valid on grounds other than those argued. The court held that the applicants' sovereignty, assent and treaty arguments were not arguable bases for removal. It did not conduct a detailed, provision-by-provision constitutional review of every statute listed in the applications ([3]-[7], [15], [23]).
The reasons also do not decide the precise effect of every international agreement or every way that international law may inform Australian law. The rule stated concerns whether treaty provisions form part of domestic law without statutory incorporation, and the court applied it to the arguments made in these applications ([21]). Broader questions outside that context remain beyond what the judgment decides.
The electoral discussion is similarly limited. Hayne J noted earlier authority about defects in elections and parliamentary proceedings, but because the applicants' arguments depended on rejected premises, he did not determine a separate challenge to the Commonwealth Electoral Act ([22]). Finally, because the supplied material contains no later cases, the subsequent scope and treatment of the decision cannot be established from this judgment alone.
This is general legal information, not legal advice. Zoe can make mistakes. Before you act on this, rely on it, or use any draft, have a qualified Australian lawyer check it.
Source: the High Court of Australia (www.hcourt.gov.au). Converted to plain text by ZoeLaw. Not the official version.
HIGH COURT OF AUSTRALIA
HAYNE J
JOOSSE & ANOR APPLICANTS
AND
AUSTRALIAN SECURITIES AND
INVESTMENT COMMISSION RESPONDENT
Joosse v Australian Securities and Investment Commission; Burke v The Queen; Bowers v Askin; Young v Deputy Commissioner of Taxation; David Keys Australia Pty Ltd v Textile Clothing and Footwear Union of Australia (M35/1998) [1998] HCA 77
Date of Order: 15 December 1998
Date of Publication of Reasons: 21 December 1998
ORDER
1. Application dismissed.
2. Certify for counsel.
Representation:
W Joosse appeared in person for the applicants
D M J Bennett QC, Solicitor-General for the Commonwealth with P J Hiland for the respondent (instructed by Australian Securities and Investment Commission)
Notice: This copy of the Court’s Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.
HIGH COURT OF AUSTRALIA
HAYNE J
BURKE APPLICANT
AND
THE QUEEN RESPONDENT
21 December 1998
M63/1998
ORDER
1. Application dismissed.
2. Certify for counsel.
Representation:
S Gillespie-Jones for the applicant
J D McArdle QC for the respondent (instructed by Solicitor for Public Prosecutions (Victoria))
Notice: This copy of the Court’s Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.
HIGH COURT OF AUSTRALIA
HAYNE J
BOWERS APPLICANT
AND
ASKIN & ANOR RESPONDENTS
21 December 1998
M65/1998
ORDER
1. Application dismissed with costs.
2. Certify for counsel.
Representation:
The applicant appeared in person
W J Martin QC with T S Monti for the respondents (instructed by Berrigan & Doube)
Notice: This copy of the Court’s Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.
HIGH COURT OF AUSTRALIA
HAYNE J
YOUNG APPLICANT
AND
DEPUTY COMMISSIONER OF TAXATION RESPONDENT
21 December 1998
M93/1998
ORDER
1. Application dismissed with costs.
2. Certify for counsel.
Representation:
The applicant appeared in person
D M J Bennett QC, Solicitor-General for the Commonwealth with G L Ebbeck for the respondent (instructed by Australian Government Solicitor)
Notice: This copy of the Court’s Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.
HIGH COURT OF AUSTRALIA
HAYNE J
DAVID KEYS AUSTRALIA PTY LTD & ANOR APPLICANTS
AND
TEXTILE CLOTHING AND FOOTWEAR
UNION OF AUSTRALIA RESPONDENT
21 December 1995
M95/1998
ORDER
1. Application dismissed with costs.
2. Certify for counsel.
Representation:
I S Henke, a Director of each applicant, appeared in person for the applicants
D C Langmead for the respondent (instructed by Maurice Blackburn & Co)
Notice: This copy of the Court’s Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.
Joosse & Anor v Australian Securities and Investment Commission
David Keys Australia Pty Ltd & Anor v Textile Clothing and Footwear Union of Australia
High Court - Practice and procedure - Removal of causes - Points raised in application not arguable.
Constitutional Law - Sovereignty - Whether certain legislation invalid due to a "break in sovereignty".
Constitutional Law - Whether certain legislation invalid because royal assent not validly given.
International Law - Sovereignty - Whether certain legislation made pursuant to treaties invalid because treaties not registered as international arrangements.
Words and phrases - "sovereignty".
Constitution, covering cl 5, s 58.
Judiciary Act 1903 (Cth), s 40.
Royal Style and Titles Act 1973 (Cth).
Statute of Westminster Adoption Act 1942 (Cth).
HAYNE J. Application is made in each of five separate proceedings for an order removing the cause into this Court pursuant to s 40 of the Judiciary Act 1903 (Cth). It is said that each of the causes arises under the Constitution or involves its interpretation.
I have heard the five applications together because they raise similar issues. It is as well to say something briefly about the proceedings that give rise to the present applications.
Joosse & Anor v Australian Securities and Investment
Commission (M35 of 1998)
Burke v The Queen (M63 of 1998)
Bowers v Askin & Anor (M65 of 1998)
Young v Deputy Commissioner of Taxation (M93 of 1998)
David Keys Australia Pty Ltd & Anor v Textile
Clothing and Footwear Union of Australia (M95 of 1998)
Little about the underlying proceeding is revealed by the material filed in this application other than that it concerns companies in some way associated with the applicants in the first matter (M35 of 1998) and is pending in the Federal Court of Australia. The legislation said to be in issue is the Federal Court of Australia Act 1976 (Cth), the Workplace Relations Act 1996 (Cth), the Commonwealth Electoral Act 1918 (Cth), the Occupational Superannuation Standards Act 1987 (Cth) and the Occupational Superannuation Standards Regulations 1987 (Cth).
In those cases where I have said little is known about the underlying proceeding, the fact that so little is known would, itself, be reason enough to refuse the application. It is not demonstrated in those cases that the cause, or any part of the cause, arises under the Constitution or involves its interpretation.
In the case of Burke v The Queen there is a different but no less important difficulty in the way of granting the application to remove the cause. To grant that application would lead to the fragmentation of the criminal process and that is reason enough to refuse it. This Court has said repeatedly that the criminal process should not be interrupted by testing interlocutory rulings that may be given in the course of proceedings1.
It is as well, however, to say something about the substance of the points raised in each of the applications.
In all five proceedings the applicants contend that there has been an unremedied, perhaps even irremediable, "break in sovereignty" in Australia that leads to the conclusion that some (perhaps much) legislation apparently passed by the Parliament of the Commonwealth, or one or more State Parliaments, is invalid. The written arguments that have been submitted (and supplemented orally) are not always articulated clearly and logically. Nevertheless, the following elements can be identified in the various submissions.
First, the Constitution is an Act of the United Kingdom Parliament. Yet it has been held in this Court that sovereignty rests with the people of Australia2. This is said to lead to the invalidating of certain of the provisions of the Constitution or, perhaps, to those provisions no longer operating. It is also said to lead to the invalidating of some State or Commonwealth legislation. Why this should be so was not spelled out clearly. Secondly, the references in the Constitution to the Queen were intended as references to the Queen in the sovereignty of the United Kingdom3, yet since the 1973 (Cth) the Queen has been the Queen of Australia and there has been no alteration to the Constitution. Accordingly, so the argument goes, the Royal Assent has not been validly given to a number of Acts of the Commonwealth Parliament. Thirdly, Australia attained international recognition of its independent and sovereign identity when it signed the Treaty of Versailles or when it became a founding member of the International Labor Organisation. Yet treaties made by Australia, including in particular the arrangements reflected in the 1942 (Cth), were not registered as international arrangements as was required by those parts of the Treaty of Versailles establishing the League of Nations. Again this is said to lead in some unspecified way to the invalidating of some legislation.
"It is worth observing that an uncritical use of the idea of sovereignty has spread similar confusion in the theory both of municipal and international law, and demands in both a similar corrective. Under its influence, we are led to believe that there must in every municipal legal system be a sovereign legislator subject to no legal limitations; just as we are led to believe that international law must be of a certain character because states are sovereign and incapable of legal limitation save by themselves. In both cases, belief in the necessary existence of the legally unlimited sovereign prejudges a question which we can only answer when we examine the actual rules. The question for municipal law is: what is the extent of the supreme legislative authority recognised in this system? For international law it is: what is the maximum area of autonomy which the rules allow to states?"
For present purposes, what is critical is: what is the extent of the supreme legislative authority recognised in this system and what are the rules for recognising what are its valid laws5?
When one examines the history of Australia since 1788 it is possible to identify the emergence of what is now a sovereign and independent nation. Opinions will differ about when sovereignty or independence was attained6. Some steps along that way are of particular importance - not least the people of the colonies agreeing "to unite in one indissoluble Federal Commonwealth under the Crown of the United Kingdom of Great Britain and Ireland, and under the Constitution"7. But when it is said that Australia is now a "sovereign and independent nation" the statement is in part a statement about politics and in part about what Stephen J in China Ocean Shipping Co v South Australia8 called "the realities of the relationship this century between the United Kingdom and Australia". What those realities were in 1900 can be gauged from the fact that the delegates negotiating with the Imperial authorities in 1900 about the terms in which the Imperial Parliament was to enact the Constitution were well content to seek to persuade the Colonial Office that the "Commonwealth appears to the Delegates to be clearly a 'Colony'"9. As the century moved on, further attention was given to the place of Imperial legislation in the self‑governing dominions. The Imperial Parliament enacted the Statute of Westminster in 1931 but it was not until 1942 that the Commonwealth Parliament enacted legislation adopting the Statute of Westminster10. And then in 1986 the Australia Acts were passed. All these Acts deal with the place of Imperial legislation in Australia. Each can be seen as reflecting the then current view of the relationship between Australia and the United Kingdom. In large part, then, each deals with an aspect of political sovereignty.
Similarly, the way in which Australia has engaged in international dealings can be seen to have changed since federation. And it may be that the Treaty of Versailles or some other international instrument can be seen as according Australia a place in international dealings which it may not have had before the instrument was signed. But what is significant for the disposition of the present applications is not whether the Westminster Parliament could now, or at some earlier time might have been expected to, pass legislation having effect in Australia. Neither is it whether Australia is treated by the international community as having a particular status. The immediate question is what law is to be applied in the courts of Australia. The former questions about the likelihood of Imperial legislation and of international status can be seen as reflecting on whether Australia is an independent and sovereign nation. But they do so in two ways: whether some other polity can or would seek to legislate for this country and whether Australia is treated internationally as having the attributes of sovereignty. Those are not questions that intrude upon the immediate issue of the administration of justice according to law in the courts of Australia. In particular, they do not intrude upon the question of what law is to be applied by the courts.
"This Act, and all laws made by the Parliament of the Commonwealth under the Constitution, shall be binding on the courts, judges, and people of every State and of every part of the Commonwealth, notwithstanding anything in the laws of any State".
It is, then, to the Constitution and to laws made by the Parliament of the Commonwealth under the Constitution that the courts must look. And necessarily, of course, that will include laws made by the States whose Constitutions are continued, the powers of whose parliaments are continued, and the existing laws of which were continued (subject, in each case, of course, to the Constitution) by ss 106, 107 and 108 of the Constitution. It is not relevant to the inquiry required by covering cl 5 to inquire how Australia has been treated by other nations in its dealings with them or to inquire whether the Westminster Parliament could or could not pass legislation that has effect in Australia. Covering cl 5 provides that the Constitution and the laws made by the Parliament of the Commonwealth under the Constitution are binding on the courts, judges, and people of every State and of every part of the Commonwealth. None of the points that the applicants seek to make touches the validity of any of the laws that are in question or would make those laws any the less binding on the courts, judges, and people.
As I have noted earlier, the second of the three themes identified by the applicants relies on the Royal Style and Titles Act. As I understand it, the principal burden of the argument is that an Act of Parliament, changing the style or title by which the Queen is to be known in Australia, worked a fundamental constitutional change. The fact is, it did not. So far as Commonwealth legislation is concerned, it is ss 58, 59 and 60 of the Constitution that deal with the ways in which the Royal Assent may be given to bills passed by the other elements of the Federal Parliament. So far as now relevant, s 58 governs. It provides that the Governor‑General "shall declare, according to his discretion, but subject to this Constitution, that he assents in the Queen's name". And there is no material that would suggest that has not been done in the case of each Commonwealth Act that now is challenged.
The third element in the submissions made by the applicants, and the one to which greatest significance was given in oral argument, asserts that significance is to be attached to certain of Australia's international dealings. These contentions fail to take account of certain basic principles. First, provisions of an international treaty to which Australia is a party do not form part of domestic law unless incorporated by statute11. It follows that what one of the applicants referred to as various human rights instruments do not of themselves give rights to or impose obligations on persons in Australia. Similarly, the Charter of the United Nations does not have the force of law in Australia12. Next, in so far as this limb of the argument sought to make some point about "sovereignty" it is again necessary to note the distinction between sovereignty in international law and sovereignty in the sense described by Hart as "the supreme legislative authority recognised in this system"13. The points which the applicants seek to make are points touching the first of these matters, not the second. It is the second that is the critical question in the courts and it is the second that is resolved by having regard to covering cl 5.
Lastly, it is necessary to deal with the contentions about the Commonwealth Electoral Act. These contentions depend entirely upon acceptance of one or other of what I have earlier called the three main themes of argument. Because I consider that they are not arguable, no separate question arises about the Commonwealth Electoral Act. Nevertheless, it may be noted that it was established very early in the life of the federation that if there are any defects in the election of a member of a house of the Parliament the proceedings of that house are not invalidated by the presence of a member without title. Moreover, there are at least some circumstances in which invalidating defects in the will not invalidate the elections held under it.
See, for example, R v Iorlano (1983) 151 CLR 678 at 680 per Gibbs CJ, Murphy, Wilson, Brennan and Dawson JJ; Re Rozenes; Ex parte Burd (1994) 68 ALJR 372 at 373 per Dawson J; 120 ALR 193 at 195; R v Elliott (1996 ) 185 CLR 250 at 257 per Brennan CJ, Gummow and Kirby JJ. ↩
Nationwide News Pty Ltd v Wills (1992) 177 CLR 1 at 70 per Deane and Toohey JJ; Australian Capital Television Pty Ltd v The Commonwealth (1992) 177 CLR 106 at 138 per Mason CJ; Theophanous v Herald & Weekly Times Ltd (1994) 182 CLR 104 at 172-173 per Deane J. ↩
Constitution, covering cl 2. ↩
H L A Hart, The Concept of Law, (1961) at 218. See also Wade, "The Basis of Legal Sovereignty", (1955) 13 Cambridge Law Journal 172; Heuston, "Sovereignty", in Guest (ed), Oxford Essays in Jurisprudence, (1961) at 198-222; Winterton, "The British Grundnorm: Parliamentary Supremacy Re-examined", (1976) 92 Law Quarterly Review 591. ↩
Hart, The Concept of Law, (1961) at 97-120. ↩
China Ocean Shipping Co v South Australia (1979) 145 CLR 172 at 181 per Barwick CJ, 194 per Gibbs J, 208-214 per Stephen J, 240 per Aickin J; Nolan v Minister for Immigration and Ethnic Affairs (1988) 165 CLR 178 at 184 per Mason CJ, Wilson, Brennan, Deane, Dawson and Toohey JJ, 191-192 per Gaudron J. ↩
Constitution - Preamble. ↩
(1979) 145 CLR 172 at 209. ↩
Quick and Garran, , (1901) at 352.
Joosse
Australian Securities and Investment Commission [1998] HCA 77;
(1998) 159 ALR 260
(1998) 73 ALJR 232
(1983) 151 CLR 678
(1994) 68 ALJR 372
(1992) 177 CLR 1
(1992) 177 CLR 106
(1994) 182 CLR 104
Each application for removal was dismissed. The applicants in M65/1998, M93/1998 and M95/1998 were ordered to pay the respondents' costs. No costs order was made in M35/1998 or M63/1998 because each arose out of a criminal or quasi-criminal matter. The court certified for counsel.
These three principal themes were developed to varying degrees and in various ways in each of the applications now under consideration. Some, but not all, also sought to develop two other points: first that the Commonwealth Electoral Act being affected by the earlier mentioned difficulties, no legislation passed after a particular date was valid for the want of valid election of members of parliament and second that some international treaties concerning human rights have direct operation in Australian domestic law.
Whether or not it is strictly open to me to do so, I am content to deal with the applications on the basis that each advances all of the various points that have been urged in support of any of the particular applications to remove.
Nevertheless, each application should be dismissed. None of the applicants identifies a point having sufficient merit to warrant removal of the cause concerned into this Court. The points that it is sought to agitate are not arguable.
"Sovereignty" is a concept that legal scholars have spent much time examining. It is a word that is sometimes used to refer to very different legal concepts and for that reason alone, care must be taken to identify how it is being used. H L A Hart said of the idea of sovereignty that4:
That question is resolved by covering cl 5 of the Constitution. It provides:
For these reasons, the points which it is sought to agitate in this Court have insufficient merit to warrant the orders that are sought. Each application is dismissed. In each of matters M65 of 1998, M93 of 1998 and M95 of 1998 the applicants will pay the respondents' costs. I make no order for costs in either M35 of 1998 or M63 of 1998 as each arises out of a criminal or quasi‑criminal matter. I certify for counsel.
Statute of Westminster Adoption Act 1942 (Cth). ↩
Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273; Victoria v The Commonwealth (Industrial Relations Act Case) (1996) 187 CLR 416 at 480‑481 per Brennan CJ, Toohey, Gaudron, McHugh and Gummow JJ. ↩
Bradley v The Commonwealth (1973) 128 CLR 557 at 582 per Barwick CJ and Gibbs J. ↩
Hart, The Concept of Law, (1961) at 218. ↩
Vardon v O'Loghlin (1907) 5 CLR 201 at 208 per Griffith CJ, Barton and Higgins JJ. ↩
Attorney-General (Cth); Ex rel McKinlay v The Commonwealth (1975) 135 CLR 1 at 53 per Gibbs J. (See also the statement as to the effect of the order in these matters recorded at (1975) 7 ALR 593 at 651.) ↩
(1979) 145 CLR 172
(1988) 165 CLR 178
(1995) 183 CLR 273
(1996) 187 CLR 416
(1973) 128 CLR 557
(1907) 5 CLR 201
(1975) 135 CLR 1
(1975) 7 ALR 593