THE PRESUMPTION OF CONSTITUTIONALITY

BY HENRY BURMESTER*

The presumption of constitutionality has been frequently invoked in recent judgments of Murphy J in the High Court. The article examines the use of the presumption in the United States and Canada. It then considers the way in which the presumption has been applied in Australia and the justification given for it. It is suggested that although the presumption does not have a clearly recognised place in Australian constitutional theory, the presumption is important and it should be given much greater prominence. For this to happen will require changes in judicial attitude. It also requires Parliament to reassert its role in the determination of constitutional questions.

In several recent High Court judgments, Mr Justice Murphy has relied on a presumption of constitutionality as a basis upon which to uphold the constitutional validity of certain legislation. These cases include: Queensland v Commonwealth/ where the representation of the Territories in the Senate was upheld for a second time; Attorney-General of WA ex rei Ansett Transport Industries (Operations) Pty Ltd v Australian National Airlines Commission2 where Murphy J (dissenting) upheld s 19B of the Australian National Airlines Act 1945 (Cth) authorizing the Commission to operate intrastate services in certain circumstances; Gazzo v Comptroller of Stamps (Vic); ex parte Attorney-General (Vic)~ where Murphy J (again dissenting) upheld s 90 of the Family Law Act 1975 (Cth) which granted exemption from State stamp duty on property transactions arising out of Family Court orders. No other judges of the High Court in recent time have explicitly relied on the presumption. In fact, Murphy J has accused some of his colleagues of ignoring the presumption and replacing it in practice with "a presumption of invalidity" .4 The presumption needs to be distinguished from other devices used by the judiciary in order to avoid passing on the consti­tutionality of legislation. These devices include "reading down" of the statute, avoiding hypothetical questions and the "political question" doctrine. The presumption only becomes relevant once the court decides to pronounce on the validity of legislation. In this article it is proposed to outline the historical background to the development of the presumption, particularly in the United States, and to assess its relevance to the Australian consti­tutional system. It will be argued that the presumption can serve a useful role, but that its value is at present diminished by the attitude of both the High Court and the legislature.

* BA, LLB (ANU); LLM (Virg); Lecturer in Law, Australian National University. The author acknowledges the helpful comments of his colleagues Professor L Zines and Mr G Lindell on earlier drafts.

1 (1977) 16 ALR 487. 2 (1976) 138 CLR 492. 3 (1981) 38 ALR 25. See case note (1982) 13 FL Rev 191. 4Jbid 45.

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APPLICATION OF THE PRESUMPTION IN THE UNITED STATES AND CANADA

Judicial review of the constitutionality of legislation has been a constant subject of controversy in the United States. The fundamental question of constitutional law has essentially been the justification for judicial review. In an attempt to avoid the fundamental question, .the Supreme Court throughout its history has, in many instances, been prepared to defer to the legislature and avoid, if possible, a direct conflict with it by upholding the validity of a statute. A number of "maxims of prudence" or "concepts of restraint" have been devised. Among these is the presumption of constitutionality. 5

One of the principal reasons given for this deference is that "the legis­lature has access to facts, as well as advice, to an extent that the court cannot equal".6 Another commentator, Brest, however, sees the deference as separate from, and not necessarily based on, any superior fact finding ability of the legislature. Rather, it reflects the need for a non-elected arm of government to act cautiously in the face of determined action by the legislative branch.7 This would also seem to be the basis for one of the most powerful statements in support of judicial restraint and deference to the legislature made by J B Thayer in his seminal article,, "The Origin and Scope of the American Doctrine of Constitutional Law" in 1893.8 For him, the legislature had primary responsibility for constitutional determination; the judicial function was merely that of "fixing the outside border of reason­able legislative action" .9 Only if the legislative judgment was manifestly wrong or unsupported should the court intervene, in the same way that courts are reluctant to overturn decisions by juries. Certainly judges have used different reasons at different times to justify their use of the presumption. A clear statement of the presumption appears in United States v Five Gambling Devices:l0

This Court does and should accord a strong presumption of consti­tutionality to Acts of Congress. This is not a mere polite gesture. It is a deference due to deliberate judgment by constitutional majorities of the two Houses of Congress that an Act is within their delegated power or is necessary and proper to execution of that power. The rational and practical force of the presumption is at its maximum only when it appears that the precise point in issue here has been considered by Congress and has been explicitly and deliberately resolved.

The presumption has featured in judgments of United States courts since the earliest days. Even Marshall CJ who in Marbury v Madison11 delivered the classic statement in support of judicial review, made statements in other

5 Congressional Research Service, The Constitution of the United States of America, Analysis and Interpretation (1973) 681.

6 C J Antieau, Modern Constitutional Law (1969) II, 691, see generally 691-694. 7 P Brest, Processes of Constitutional Decisionmaking Cases and Materials (Little

Brown, 1975) 1008-1010. 8 '(1893) 7 Harvard Law Review 129. 9fbid 148.

10 (1953) 346 us 441, 449. 11 (1803) 5 us 137.

1983] The Presumption of Constitutionality 279

cases recognising the need for judicial restraint. Thus, in Fletcher v Peck in 1810 he said:

The question whether a law be void for its repugnancy to the consti­tution is at all times a question of much delicacy which ought seldom if ever to be decided in the affirmative in a doubtful case . . . The opposition between the constitution and the law should be such that the judge feels a clear and strong conviction of their incompatibility with each other.12

Although the word "presumption" is not actually used by Marshall CJ the statement represents the same sentiments as those reflected in the judgments of other judges at the time who did refer to a presumption in favour of constitutional validity. For instance, Washington J in Ogden v Saunders in 1827 said:

It is but a decent respect due to the wisdom, the integrity and the patriotism of the legislative body, by which any law is passed, to presume in favor of its validity, until its violation of the constitution is proved beyond all reasonable doubt.13

A glance at any of the United States Digests14 or at Corpus Juris Secundum15 indicates the myriad of cases where the presumption has been referred to. An examination of United States case law in fact reveals that "[t]here is not just one presumption of constitutionality; there are several, of varying vigor and applicability".16 Certainly the basis of challenge to the validity of a law is relevant to the way in which the presumption is applied. There are now very few challenges to federal legislation on the ground that a law is not one with regard to a constitutional head of power. When such a challenge is made the courts defer readily to findings made by the legis­lature and, for instance, in relation to the commerce clause they seek only a "rational basis" for the regulatory scheme in question.U It is for Congress to determine what the national interest requires and the "Supreme Court will usually accept that determination" .18 Nevertheless, the Court is prepared, in appropriate cases, to strike down legislation that might otherwise be valid if it is regarded as infringing some constitutional barrier. Thus, the majority of the Supreme Court had no hesitation in 1976 in National League of Cities v Usery19 in striking down the application to certain State employees of the Fair Labor Standards Act 1938 (US) as amended. To them, the legislation represented an invasion of State sovereignty and no deference was due to the legislative judgment that this application of the Act was

12 (1810) 10 us 87, 128. 13 (1827) 25 us 213, 270. 14 Eg Ninth Decennial Digest Part I, 1976-1981, Vol 5, 1746, para 48. 15 Vol16, Constitutional Law, para 99. 16 K L Karst, "Legislative Facts in Constitutional Litigation" [1960] The Supreme

Court Review 75, 87. See alsoP Brest, supra n 6, 981-983, who indicates eleven factors which "affect the degree of judicial scrutiny". · 17 Katzenbach v McClung (1964) 379 US 294, 304; United States Trust Co of New York v New Jersey (1977) 431 US 1, 22-23; Hodel v Indiana (1982) 452 US 314, 323-4.

18 P E Nygh, "An Analysis of Judicial Approaches to the Interpretation of the Commerce Clause in Australia and the United States" (1967) 5 Syd L Rev 353, 388.

19 (1976) 426 us 833.

280 Federal Law Review [VOLUME 13

necessary or desirable. The case is, however, exceptional and is not typical of judicial attitudes.20

The dissenting judges in the Usery case made strong play of the fact that Congress was composed of representatives of the people elected from the States and therefore the Court should presume that the concerns of the States were taken into account by Congress. It was not the role of the Court to preserve any particular federal balance.21

There have been suggestions that a different judicial approach is called for where State legislation is challenged as contrary to the Constitution. In such a situation one is not dealing with co-ordinate departments; rather, the

judiciary now speaks as representing a paramount constitution and government, whose duty it is, in all its departments, to allow to that constitution nothing less than its just and true interpretation; and having fixed this, to guard it against any inroads from without.22

Marshall CJ in McCulloch v Maryland made a similar point when dealing with the question of governmental immunities. He took the view that when a State law taxes the activities of the Federal government "it acts upon institutions created, not by their own constituents, but by people over whom they claim no control".23 There is, therefore, no presumption or benefit of the doubt given to State laws in such circumstances. This view has not been consistently followed in later Supreme Court decisions.24

There are, in fact, numerous judicial statements which support the application of the presumption to State legislation; not only in relation to challenges under the due process and equal protection clauses but also in relation to challenges to State laws on the ground that they impinge on interstate commerce.

In these latter cases the courts have not been consistent and it is difficult to ascertain a clearly enunciated approach.25 In order to determine the validity of a State law that affects interstate commerce, assuming the absence of Congressional legislation on the matter, the court first appears to engage in a balancing test to satisfy itself that the burden on interstate trade "is slight and the area of legislation is one that is properly of local concern".26

20 Eg Hodel v Virginia Surface Mining & Reclamation Association (1981) 452 US 264; United Transportation Union v Long Island Rail Road Co (1982) 455 US 678; Equal Employment Opportunity Commission v Wyoming (1983) 51 LW 4219.

21 (1976) 426 us 833, 856. 22Thayer, supra n 8 at 155. Compare the consistent view to the contrary of

Rehnquist J-J Powell, ''The Complete Jeffersonian-I ustice Rehnquist and Federalism" (1982) 91 Yale LJ 1317, 1348-1349. One area where a more stringent standard of review is applied to State laws than to federal laws is in the application of the equal protection clause-see S G Calabresi, "A Madisonian Interpretation of The Equal Protection Doctrine" (1982) 91 Yale LJ 1403, esp 1426-1429.

23 (1819) 17 us 316,. 433. USee The Collectorv Day (1870) 78 US 113. 25 P E Nygh, ''The Police Power of the States in the United States and Australia"

(1967) 2 FL Rev 183, 196-200. 26 Procter and Gamble Co v City of Chicago (1975) 509 F 2d 69, 76 (certiorari

denied 421 US 978), relying on Bibb v Navajo Freight Lines (1959) 359 US 520 and Southern Pacific Co v Arizona (1945) 325 US 761. P E Nygh, supra n 25, 197-198 suggests that certain judges have sought to apply the presumption at this balancing stage. More recent decisions do not seem to go so far. In Pike v Bruce Church (1970) 397 US 137, 142 the Court preferred to talk of "direct" and "indirect" burdens, rather than a balancing of interests.

1983] The Presumption of Constitutionality 281

It is also necessary to show that the means chosen are "reasonably adapted to the end sought".27 Once, however, "it is determined that the legislation is a reasonable means of achieving a non-discriminatory, legitimate goal" then recent cases suggest the court will apply a presumption of validity and not inquire, for instance, into the necessity or effectiveness of a safety measure.28 The presumption will not operate to save State legislation where the burden on interstate trade is found severe or discriminatory.

Challenges to laws on the ground that they violate the due process clause now receive little sympathy from the courts. In Usery v Turner Elkhorn Mining Co the Court said:

It is by now well established that legislative Acts adjusting the burdens and benefits of economic life come to the Court with a presumption of constitutionality and that the burden is on one complaining of a due process violation to establish that the legislature has acted in an arbitrary and irrational way.2'J

The presumption is particularly apposite in cases such as this "[a]s under­lying questions of fact may condition the constitutionality of legislation of this character". The presumption "must prevail in the absence of some factual foundation of record for overthrowing the statute".30

In relation to challenges to both State and Federal laws on the ground that they infringe the equal protection clause, the presumption is applied in some cases but not in others. Certain classes of legislation which discriminate will only be upheld if a compelling State interest can be demonstrated. But outside those classes, if legislation is challenged under the equal protection clause, the courts continue to recognise the role of the legislatures in making determinations as to where and how to categorise their citizens. Thus in the recent Federal Court decision of Burke v Raschke the Court said:

Where the classification embodied in legislation is called in question, if any state of facts reasonably can be conceived that would sustain it, the existence of the state of facts at the time the law was enacted must be assumed. The presumption of constitutionality of a statute will prevail unless its repugnancy to the constitution clearly appears. It must be clear there is no fair reason or basis for the classification. And the burden is on the one attacking the legislative arrangement to negative every conceivable basis that might support it. It is not enough to show that the question is fairly debatable. The burden on the Plaintiff in this case is to ~stablish the invalidity of the statute to such a degree as to leave no reasonable doubt. [Citations deleted]31

Similarly, the Supreme Court has said:

27 South Carolina State Highway Department v Barnwell Brothers (1938) 303 US 177, 190.

28 Procter & Gamble Co v City of Chicago (1975) 509 F 2d 69, 75 applying Brotherhood of Locomotive Firemen and Enginemen v Chicago, Rock Island & Pacific Railroad Co (1968) 393 US 129. See also Hughes v Oklahoma (1979) 441 US 322, 336.

29 (1976) 428 US 1, 15. See also Nebbia v New York (1934) 291 US 502. 30 O'Gorman & Young Inc v Hartford Fire Insurance Co (1930) 282 US 251,

257-258. 31 (1977) 428 F Supp 1030, 1034. See also LaBauve v Louisiana Wildlife and

Fisheries Commission (1978) 444 F Supp 1370, 1377-1382.

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State laws are generally entitled to a presumption of validity against attack under the Equal Protection Clause . . . Not all legislation, however, is entitled to the same presumption of validity [the Court gave as an example racial classifications].32

By contrast, in cases involving fundamental constitutional rights, such as the freedom of speech guaranteed by the First Amendment, the courts take an opposite approach. Thus, in City of Mobile, Alabama v Bolden the Court said:

It is of course true that a law that impinges upon a fundamental right explicitly or implicitly secured by the Constitution is presumptively unconstitutional.33

As early as 193 7 Stone J in the Carolene Products case said in the now famous footnote:

There may be narrower scope for operation of the presumption of constitutionality when legislation appears on its face to be within a specific prohibition of the Constitution.34

This comment has been seen as the foundation of the renewed activism of the Supreme Court in relation to cases involving individual freedoms and liberties. It is the basis for many recent theoretical justifications for judicial review.35

It is suggested that the few cases referred to above illustrate that the presumption does have a significant role in United States constitutional jurisprudence. Only in the area of fundamental rights and suspect classi­fications is the presumption rejected. It is because deference to the legislature is not accorded in these areas, that the Supreme Court in the last 30 years has adopted such an activist role in the human rights area. Because of this, judicial deference, so strongly championed by judges such as Frankfurter J, appears to have disappeared. But a closer look shows that the presumption is still a frequently invoked factor in constitutional decision making by the courts.

In Canada there have also been occasional references to a presumption of constitutionality. The specific allocation of powers under the Canadian Constitution between the federal and Provincial governments means that the characterisation of laws is a somewhat different exercise from that in Australia. In order to be valid, each law has to be characterised as one in relation to a head of power conferred on the legislature in question and not as a law in relation to a head of power conferred on the other level of government. Residual power over matters not specified is conferred on the federal government. In Australia, by contrast, the allocation of powers to the Commonwealth is generally made on a non-exclusive basis. Thus, "there

32 Parham v Hughes (1979) 441 US 347, 351. 33 (1980) 446 US 55, 76. See also Bantam Books v Sullivan (1963) 372 US 58. 3! United States v Carolene Products Co (1937) 304 US 144, 152, n 4. 35 J H Ely, Democracy and Distrust: A Theory of Judicial Review (Harvard UP

1980); J H Choper, Judicial Review and the National Political Process: A Functional Reconsideration of the Role of the Supreme Court (Uni of Chicago Press 1980). See also J Thomson, "Principles and Theories of Constitutional Interpretation and Adjudication: Some Preliminary Notes" (1982) 13 Melb ULR 597.

1983] The Presumption of Constitutionality 283

is not ... the same need to seek for one sole or dominant character of each law" .36 In Canada judicial statements suggest that both provincial and federal laws should be presumed to be confined by the particular legislature to matters within its powers and thus valid.37 These statements, however, are more akin to a "reading down" approach, rather than a recognition of a broader based presumption of constitutionality. Thus Professor Hogg concludes that:

It cannot be said that a presumption of constitutionality has been explicitly recognized in Canada a$ a general principle of judicial review. However, the Supreme Court of Canada has been more restrained in judicial review than was the Privy Council, and its practice may perhaps be regarded as consistent with a presumption ·of constitutionality. A more limited presumption of constitutionality has been explicitly recognized in Canada as a canon of construction which forms the basis of the "reading down" doctrine .. ,''88

Professor Hogg is himself in favour of a presumption of constitutionality as in this way "proper respect is paid to the legislators, and the danger of covert (albeit unconscious) imposition of judicial policy preferences is minimized" .•

APPLICATION OF THE PRESUMPTION IN AUSTRALIA

(a) Rationale for the Presumption In considering the application of the presumption of constitutionality in

Austrana it is useful to look at two different aspects-the justification given for it, and secondly its actual application in practice. As mentioned, Murphy 1 has been the most consistent recent exponent of the doctrine. In Attorney­General of Western Australia ex rel Ansett Transport Industries (Operations) Pty Ltd v Australian National Airlines Commission the presumption was justified as "an attribute of the respect which the judiciary, the unelected branch of government, accords to the acts of the elected representatives of the people".40 (Murphy J then quotes in support Washington J in Ogden v Saunders quoted above) .41 A similar attitude has been expressed in other cases, where Murphy J has, in particular, considered the implications of the presumption for the burden of proof. This will be discussed further below.

Other justices can be found who have made similar remarks to those of Murphy J, although none seems to have been so consistent in his invocation of the presumption. Isaacs J recognised that:

It is always a serious and responsible duty to declare invalid, regardless of consequences, what the national Parliament, representing the whole

36 Actors and Announcers Equity Assoc v Fontana Films Pty Ltd (1982) 40 ALR 609, 623 per Stephen J.

37 Hewson v Ontario Power Co of Niagara Falls (1905) 36 SCR 596; Severn v R (1878) 2 SCR 70 per Strong J; Reference re Farm Products Marketing Act (1957) 7 DLR (2d) 257, 311, per Fauteux J.

38 P W Hogg, Constitutional Law of Canada (1977) 88. See also J R. Mallory, "Constraints on Courts as Agencies of Constitutional Change: The Canadian Case" [1977] Public Law 406, 423; J E Magnet. "The Presumption of Constitutionality" (1980) 18 Osgoode Hall U 87.

39 P W Hogg, supra n 38, 47. 40 (1976) 138 CLR 492, 528. 41 Above p 279.

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people of Australia, has considered necessary or desirable for the public welfare ... Unless, therefore, it becomes clear beyond reason­able doubt that the legislation in question transgresses the limits laid down by the organic law of the Constitution, it must be allowed to stand as the true expression of the national will . . . There is always an initial presumption that Parliament did not intend to pass beyond constitutional bounds. If the language of a statute is not so intractable as to be incapable of being consistent with this presumption, the presumption should prevail.42

This statement was endorsed by the Privy Council in the Shell case.43

Isaacs J in this statement, however, sees the presumption very much as a method of statutory interpretation and not necessarily as a reflection of a broader constitutional principle. He specifically refers to the maxim ut res magis valeat quam pereat-it is better for a thing to have effect than to be made void.

A similar recognition of the duty of the Court to "scrutinize the conduct of the High Court of Parliament with the utmost tenderness and respect and with the most sincere desire to support its authority" occurred in the early decision of the Victorian Supreme Court in Kingston v Gadd.44 There has been little evidence of similar sentiments or of any general inclination readily to defer to the legislature, whether federal or State, among more recent High Court judges apart from Murphy J. In fact the approach to judicial review adopted by the High Court is such that judges mostly reach a decision on the constitutional validity of a law by looking solely at the face of the statute or by reliance on facts of which they take judicial notice. There is no established system of "Brandeis briefs" or of regular reliance on social or economic evidence.45 With such a largely self-contained judicial approach there is little inclination to pay any particular regard to legislative findings or to recognise any special role for the legislature in a federal system. At the same time the judges emphasise without argument that they are the principal guardians of the fundamental law represented by the Constitution. Judicial review is accepted as an axiomatic part of the Australian constitutional system.

(b) Application of the Presumption in Practice

The ability of the High Court largely to ignore the presumption is assisted by the fact that only limited areas of constitutional dispute in Australia raise issues where facts play a significant role. In order to determine the meaning of a constitutional expression, for example what is a trademark or what is an adult, the Court generally does not look for facts but interprets the expression according to the meaning it had in 1901.46 In order to determine whether a law is in fact one "with respect to" a subject matter of Commonwealth power the judges normally look at the face of the statute

42 Federal Commissioner of Taxation v Munro (1926) 38 CLR 153, 180. 43 Shell Co v Federal Commissioner of Taxation (1930) 44 CLR 530. See also

Dixon J in the Pharmaceutical Benefits case (1948) 71 CLR 237, 267 who said "in discharging our duty of passing upon the validity of an enactment, we should make every reasonable intendment in its favour".

44 (1901) 27 VLR 417. 45 L Zines, The High Court and the Constitution (1981) Ch 15. 46 Eg King v Jones (1972) 128 CLR 221.

1983] The Presumption of Constitutionality 285

and its apparent operation. The accepted method according to Brennan J is to look solely at the "rights, duties, powers or privileges [which] the law creates or affects and, by reference solely to the operation of the law thus ascertained, to see whether it is a law 'with respect to' one or more of the heads of power enumerated in" s 51.47 On the basis of that, and in the light of facts of which they are prepared to take judicial notice, the judges reach their conclusions about the extent of a head of power and the character of the law in question. The only areas where proof of facts regularly occur are in relation to purposive powers, such as defence, and in relation to determinations whether a burden is reasonable under s 92 of the Constitution.

Occasionally the Court does, in considering the operation of a statute, look a little further afield and see what was the object behind the legislation. Thus in O'Sullivan v Noarlunga Meat Ltd the Court upheld controls on slaughtering of meat as a matter which "may affect beneficially or adversely the export trade".48 The Court did, however, essentially satisfy itself of this connection by its own devices and not by reference to any demonstrated parliamentary conclusions. In Herald & Weekly Times Ltd v Common­wealth49 the Court upheld controls on shareholdings in television companies. It satisfied itself that "a remote connexion may nevertheless be a real connexion";50 the "possibility" of influence was sufficient.51 Menzies J was prepared to allow that Parliament could "take into account matters of business, rather than of strictly legal, importance".52 The Court took similar account in concluding that the particular controls on shareholdings in television companies were sufficiently related to the power to make laws with respect to broadcasting. Yet, in the more usual case, such as Gazzo53

or Fontana Films54 the Court generally does not look for explanations or justifications for a particular law that would show a "substantial" or "sufficient" connection with a head of power, but makes up its mind on the basis of a limited amount of information. The Court does not simply ask is there a "rational basis" for a law and leave its inquiry at that, as occurs in the United States in relation to the commerce clause.

Even in relation to the incidental power where the Court is concerned to find whether control of some incidental area is necessary to effectuate a law that may otherwise be within power, there is only limited acknowledgment of the Legislature and its fact finding role.

In Gazzo,55 for instance, the majority judges consider the constitutional issue, namely whether the exemption from State stamp duty of property transactions arising out of Family Court orders is incidental to the marriage power, with no reference to any need to have regard to the legislative judg­ment. In fact, Stephen J says that because the operation of the legislation

47 Actors and Announcers Equity Assoc v Fontana Films Pty Ltd (1982) 40 ALR 609, 643.

48 (1954) 92 CLR 565, 598 per Fullagar J. 49 (1966) 115 CLR 418. 50 Ibid 442 per Menzies J. 51 Ibid 436 per Kitto J. 52Jbid 442. 53 (1981) 38 ALR 25. 54 (1982) 40 ALR 609. 55 (1981) 38 ALR 25.

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in question " 'reaches into the operation of the constitutional powers of the State' ... its validity [must] be carefully scrutinized ... ".56 Murphy J invokes the presumption of constitutionality but does not actually appear to apply it directly to the evidence put forward in the case. He instead produces his own evidence from the social sciences.57

In relation to the incidental area, Dixon CJ did suggest in Burton v Honan that because in this area it becomes a question of degree

we must not lose sight of the fact that once the subject matter is fairly within the province of the Federal legislature the justice and wisdom of the provisions which it makes in the exercise of its powers over the subject matter are matters entirely for the Legislature and not for the Judiciary.118

This reflects the more general point made by the judges that once the end is legitimate the means are for Parliament to determine; once a law is determined to be one with respect to a matter within power, the wisdom or efficiency of the means chosen to achieve that end are not relevant. 59

An examination of the consideration by the Court of the incidental area shows, however, little reliance on factual evidence or legislative judgment. Considerable emphasis is placed on what controls historically have been necessary to control an activity within power.00 Economic and social considerations do not appear to be matters about which most members of the Court will inquire, as the Gazzo decision well illustrates.61

As mentioned above, the only areas where judges regularly seek proof of facts, and do not rely on judicial notice alone, is in relation to purposive powers such as the defence power, and in relation to s 92 questions as to whether a burden is reasonable.

The most litigated constitutional provision in Australia is s 92 concerning the freedom of interstate trade and commerce. It is of interest to look briefly at recent cases on that section. Once one determines that .the law operates in relation to some aspect of interstate trade it then becomes a question whether the law is regulatory. This is one area of Australian consti­tutional law where the Court has particular regard to the known or established factual circumstances surrounding the operation of the restric­tion.62 However, instead of the Court deferring to the legislature and putting the burden on the assailant the Court tends to put the burden on the upholder of the restriction, normally the State or Commonwealth, or one of their instrumentalities, to show that the restraint is reasonable.63 Mason J

56 Ibid 38, quoting in part Victoria v Commonwealth (1957) 99 CLR 515, 614 per DixonCJ.

57 Ibid 48. 58 (1952) 86 CLR 169, 179. 59 Herald & Weekly Times Ltd v Commonwealth (1966) 115 CLR 418, 437 per

Kitto J. oo Herald & Weekly Times Ltd v Commonwealth (1966) 115 CLR 418; Griffin v

Constantine (1954) 91 CLR 136. 61 (1981) 38 ALR 25. 62 North Eastern Dairy Co Ltd v Dairy Industry Authority of NSW (1975) 134

CLR 559, 624 per Jacobs J. 63Jbi4 616 per Mason J; Permewan Wright Co Pty Ltd v Trewhitt (1979) 145

CLR 1, 37 per Mason J.

1983] The Presumption of Constitutionality 287

in the Trewhitt case did nevertheless give some weight to a parliamentary assessment of what is reasonable. He said:

In general, a mode of regulation selected by a Parliament as appro­priate to the domestic or intra-State trade of a State will constitute a reasonable regulation of interstate trade unless it contains features which discriminate against interstate trade or subject it to particular disadvantages. . . . Because it is less likely that the Commonwealth will seek to prefer growers, manufacturers and traders in one State over those in another State, it may be easier to sustain a Commonwealth­wide regulation of trade in a commodity than it is to sustain regulation within a State of the trade in that commodity.04

In this statement, Mason J does recognise a need to give some deference to the legislature, particularly the Federal legislature. It reflects the emphasis that he and Stephen J have sought to give in s 92 cases to the "public interest". Thus, while Mason J puts the burden on those seeking to uphold a restriction against a s 92 challenge, he at the same time recognises the importance of legislative judgment. This is in contrast to the view of Barwick CJ, who was concerned to emphasise that the individual freedom to trade could not be interfered with merely by deciding some law was in the public interest.65

Where one is dealing with a complete prohibition on trade, as was the situation in the recent wheat marketing cases, the Court has had greater difficulty in deferring to the legislature. In the Clark King case66 where a majority of three judges upheld the legislation in question, this was in part on the basis that the total acquisition of the crop was the only practical and reasonable manner of regulating the trade. This was despite the fact that a report by the Industries Assistance Commission had been put in evidence indicating that there were alternatives. When the legislation was next challenged in Ueberganlf1 the Court recognised the need for facts to be put before the Court in order to enable a determination of constitutionality to be made. The burden of producing the facts was, however, placed on the defendant. This determination to secure facts before making a decision was no doubt a reaction to the criticism of the decision in Clark King.68 It is, however, far from usual practice, even in s 92 cases. Yet in the joint judgment of Dixon, McTiernan and Fullagar JJ in Wilcox Mofflin Ltd v New South WaleP in 1952 the parties, particularly those seeking to uphold legislation, were chided for not providing facts and information to the Court on the "real significance, effect and operation of the statutes" in question. The parties preferred, it was said, "to submit such an issue in the abstract without providing any background of information in aid of the presumption of validity ... ".70 Here is a clear recognition in a s 92 case of the possible way in which the presumption might operate-on the basis of facts proved

64 (1979) 145 CLR 1, 37-38. 65 See L Zines, supra n 45 Chs 6-7. 66 Clark King & Co Pty Ltd v Australian Wheat Board (1978) 140 CLR 120. 67 Uebergang v Australian Wheat Board (1980) 145 CLR 266. 68 (1978) 140 CLR 120. See, for instance, the editorial comment in (1979) 53 ALJ

7-8, and L Zines, supra n 45, 318. oo (1952) 85 CLR 488. 70 Ibid 507.

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before the Court. Yet the suggestions of the judges in Wilcox Mofflin have not generally been taken up. As the recent Wheat cases71 indicate the provision of facts to the Court in a s 92 case is largely ad hoc and, even if presented, their use by the judges is uncertain. The presumption remains unmentioned. Part of the reason for this might be that s 92 is still seen by many judges as a fundamental guarantee and, thus, an area where the presumption is not suited for application. The remarks of Mason J in Trewhitt12 are, however, encouraging.

The one area where the presumption has been applied in s 92 cases is where, after receipt of factual information a particular law is upheld and subsequent challenges are made to similar laws in other States. If no new evidence is produced the Court will presume the similar law challenged in subsequent proceedings to be valid.73

A similar limited recognition of the presumption occurs in relation to purposive powers. Dixon J, in discussing the defence power in Stenhouse v Coleman and the special problems associated with its purposive nature, recognised the use that had been made of the presumption in order to establish the necessary link between the measures taken and the prosecution of war. However, he went on to say that ultimately the question of constitutionality

is one of law and not of fact, and in such a case a presumption seldom provides a solution; at best it supplies a step in legal reasoning. But where the validity of a legislative instrument is affected by what is planned or is going forward in relation to the prosecution of the war, the presumption is, so to speak, reinforced by the respect which the court pays to the opinion or judgment of the other organs of govern­ment with whom the responsibility for carrying on the war rests.74

Fullagar J in the Communist Party case took the view that once the existence of a state of war or national emergency had been found to exist, this brought into play the

secondary or extended aspect of the defence power. This is done simply as a matter of judicial notice, and it provides the justification for a presumption of validity which might not otherwise exist in the case of an enactment which on its face bore no relation to any constitutional power.75

He quoted in support the passage by Dixon J in Stenhouse v Coleman, referred to above.76 In relation to s 4 of the Communist Party Dissolution Act 1950 (Cth) which simply declared the association unlawful, Fullagar J said there could be no presumption of validity

for the simple reason that there could not be any presumption that

71 Clark King & Co Pty Ltd v Australian Wheat Board (1978) 140 CLR 120 and Uebergang v Australian Wheat Board (1980) 145 CLR 266.

72 Above p 287. 73 Commonwealth Freighters Pty Ltd v Sneddon (1959) 102 CLR 280. See also

P Brazil, "The Ascertainment of Facts in Australian Constitutional Cases" (1970) 4 FL Rev 65, 73.

74 (1944) 69 CLR 457, 470. 75 Australian Communist Party v Commonwealth (1951) 83 CLR 1, 255. 76 Supra n 74.

1983] The Presumption of Constitutionality 289

the ... Party has done or is likely to do anything which would bring it within the defence power or the constitution-preservation power.'l'T

In this case there was nothing on the face of the law itself which showed any connection with a Commonwealth head of power. Both Dixon J and Fullagar J in these cases are essentially seeing the presumption as no more than an evidentiary matter. It is only seen as relevant to questions of fact. But as mentioned above the approach to constitutional interpretation taken by the High Court clearly limits the significance that the presumption can have in this area.

Yet it is suggested that the presumption has a much more prominent role to play. Judicial review of the constitutionality of legislation is clearly an established part of the Australian constitutional framework. Although it has recently been strongly argued that there is no underpinning for such judicial review,78 the fact that the High Court has exercised that power, largely without question from either the other arms of government or academic commentators, puts it in a strong position. Nevertheless, because of the special position of the judiciary in a federal system, it is suggested that the High Court should exercise its power of judicial review with caution. This should not be seen as an abdication of power but a recognition of the appropriate role for a court in a federal system. Application of the pre­sumption in recognition of the deference due to the legislature would be a sound approach to adopt, and a useful supplement to existing prudential techniques. 79

For the Court to adopt such an approach is made somewhat difficult, however, in a situation where Parliament increasingly fails to make any legislative judgment as to the extent of constitutional power, but often uses a catch-all clause which leaves any clear demarcation of the limits of constitutional power to the courts. The limits to the powers of statutory bodies in particular are defined in many cases solely by reference to constitutional heads of power.80 The legislation setting up these bodies does not attempt in any way to confine the activities of the bodies or indicate areas in which, on the basis of actual findings, it is considered appropriate that they engage. Recent legislation which relies on the corporations power has attempted to spell out in greater detail the persons to be covered by the legislation, but not in any exhaustive manner.81 Barwick CJ criticised the use of "statutory definitions expressed in terms of the relevant constitutional power" in the Adamson case,82 and his remarks, although not clearly related

77 (1951) 83 CLR 1, 262. 78 J A Thomson, "Judicial Review in Australia: The Courts and the Constitution"

Vol I unpublished SJD Thesis, Harvard 1979. But compare G Lindell, "Duty to Exercise Judicial Review" in L Zines (ed) Commentaries on the Australian Constitution (1977) 150; B Galligan, "Judicial Review in the Australian Federal System: Its Origin and Function" (1979) 10 FL Rev 367; P H Lane, The Australian Federal System (2nd ed 1979) 1135-1208.

79 A C Castles, "Justiciability: Political Questions" in L A Stein (ed), Locus Standi (2nd ed 1979) 202, esp 219-224.

80 Eg Australian Housing Corporation Act 1975 (Cth) s 6(3), Great Barrier Reef Marine Park Act 1975 (Cth) s 5.

81 Eg Petroleum Retail Marketing Franchise Act 1980 (Cth) ss 3, 4. 82 R v Judges of the Federal Court of Australia and Adamson; ex parte Western

Australia National Football League (Inc) and West Perth Football Club (1979) 143 CLR 190, 199.

290 Federal Law Review [VOLUME 13

to any view as to the role of the legislature in constitutional decision-making, are relevant to the point being made. Unless the Parliament clearly asserts a role for itself, then there is little incentive for the Court to defer.

Another area where legislative change could assist would be the inclusion of legislative findings on the face of Acts themselves. As indicated in the Five Gambling Devices case, 83 when the legislature has specifically made a finding on the point in issue the presumption is "at its maximum". Inclusion of legislative findings could put a court which wanted to determine that legislation was invalid in a position where it had directly to contradict a legislative finding, a position a court would be expected to avoid if possible. Australian statutes, unlike most United States Acts, do not contain factual recitals concerning the rationale for a piece of legislation. This is to be regretted. If the Family Law Act 1975 (Cth) had contained on its face findings concerning the economic impact of stamp duties on property settlements made at the termination of a marriage, it might have been more difficult for the majority of the High Court in Gazzo's case84 to determine that no sufficient connection with the marriage power existed thus enabling them to find the section in question invalid.

Fullagar J in the Communist Party case was certainly not sympathetic to recitals in Acts-he said that they "cannot be regarded as affording even prima-facie evidence of the truth of what is recited".85 He quoted in support Latham CJ in South Australia v Commonwealth to the effect that "a declaration cannot be regarded as conclusive. A Parliament of limited powers cannot arrogate a power to itself by attaching a label to a statute".86

Latham CJ, however, had preceded these two sentences with the following: "The Court should treat this expression of the view of Parliament with respect. In a doubtful case it might turn the scale, the presumption being in favour of the validity of Acts rather than of invalidity".87 The situation in the Communist Party case88 can be seen as unusual. There seems no reason why recitals in legislation should not become relevant particularly in deter­mination of questions at the periphery of heads of power, such as the incidental area. The presumption of constitutionality would lead a court to defer to legislative findings if they appeared to be "rational" or "reasonable". There is no suggestion that the legislative findings be treated as conclusive or that, by their use, Parliament itself should be at liberty entirely to define the ambit of a head of power.

Faced with a situation where factual recitals rarely appear in legislation it is no wonder that the courts in Australia do not regularly express a need to defer to the legislature, or give any recognition to the fact that a better basis for fact finding is possessed by the legislature. If, as this writer believes, judicial deference is to be encouraged, the legislature itself needs to grasp the nettle and forthrightly assert its own role in constitutional decision-making.

Meanwhile, in Australia, the presumption of constitutionality appears to

83 Supra n 10. 84 (1981) 38 ALR 25. 85 (1953) 83 CLR 1, 263. 86 (1942) 65 CLR 373, 432. 87 Ibid. 88 Australian Communist Party v Commonwealth (1953) 83 CLR 1.

1983] The Presumption of Constitutionality 291

be far less a concept of restraint than a reflection of the problem of the burden of proof in constitutional cases. The status of the concept in the Australian context has been summed up by Professor Sawer as follows:

How far the presumption of validity can ever go in a federation is a matter of doubt; as Dr Evatt pointed out during the argument in Communist Party, a presumption of validity for a Commonwealth statute may have the effect of denying a power to the States, though the converse would rarely be the case. There is certainly no presump­tion, in the case of Commonwealth laws, that there is a head of power appropriate to a law in question; ... But assertions of a presumption of validity in relation to Commonwealth laws are numerous ... The presumption of validity is another highly subjective and variable factor; it meant little to the High Court from 1903-13, a good deal from 1920-42, and has again meant very little since about 1950, but could become a real factor once again.89

Despite the best endeavours of Murphy J, it cannot yet be said that the presumption is again a real factor in High Court decisions. Nevertheless, its use in the narrower context of the burden of proof indicates some life for the concept.

(c) The Presumption as an Evidentiary Matter As is stated by Cross on Evidence there are "two main senses in which

the word 'presumption' is used by lawyers".90 The first meaning is "nothing more than a conclusion which must be drawn until the contrary is proved". The second is "a conclusion that a fact . . . exists which may or must be drawn if some other fact ... is proved or admitted".91 When judges talk of a presumption of constitutionality they are essentially using the word presumption in its first sense as a "means of stating the effect of the relevant rules with regard to the incidence of the legal and evidential burdens of proof" .92 The presumption of innocence is an example of this type of presumption.

Thus Murphy J has said: "The presumption of validity holds until it is demonstrated beyond reasonable doubt that the legislation exceeds the limit set by the Constitution".93 And in the Western Australian Airlines case he said that "This Court should not replace Parliament's judgment ... unless the relation of the disputed sections to trade and commerce . . . clearly does not exist".~» Similarly Isaacs J in Munro's case talked of the need to demonstrate "beyond reasonable doubt" that the legislation is not allowed under the Constitution.91;

At times, however, proponents appear to have placed an even higher

89 G Sawer, Australian Federalism in the Courts (1967) 118-119. 90 Cross on Evidence (2nd Aust ed, 1979), 115. 91Jbid 116. 92Jbid. 93 Gazzo v Comptroller of Stamps (Vic); ex parte Attorney-General (Vic) (1981)

38 ALR 25, 44. 94 Attorney-General (W A) ex rel Ansett Transport Industries (Operations) Pty Ltd v

Australian National Airlines Commission (1976) 138 CLR 492, 531. 95 (1926) 38 CLR 153, 180. Compare Gibbs J who has said in relation to appro­

priation Acts that "it should in my opinion be ·assumed in the absence of proof to the contrary that the appropriation is valid." Victoria v Commonwealth and Hayden (1975) 134 CLR 338, 375.

292 Federal Law Review [VOLUME 13

burden on those seeking to impugn the validity of legislation. Thus Marshall CJ in Fletcher v Peck referred to the need for a judge to find "a clear and strong conviction" of the incompatibility of a law with the Constitution before it should be found invalid.00 Thayer, in his article, argued that a "manifest" violation was needed before invalidity was found.91

One can certainly conclude that "Formulas for the presumption of consti­tutionality vary".98 United States and Australian judges have imposed a variety of standards on both the supporters and opponents of legislation.

Wynes, in successive editions of his work on Australian constitutional law, in a bold statement, said that:

In construing an enactment the constitutional validity of which is in issue, the Court will not hold it to be ultra vires unless the invalidity is clear beyond all doubt; the presumption is always in favour of validity ... 99

However, some judges appear to reject this approach and place the burden to defend the validity of a law clearly on those seeking to uphold it. Thus, in the Colonial Sugar case, the Privy Council stated that the "burden rests on those who affirm that the capacity to pass these Acts was put within the powers of the Commonwealth Parliament ... "YJO In the Engineers case the High Court said:

It is undoubted that those who maintain the authority of the Common­wealth Parliament to pass a certain law should be able to point to some enumerated power containing the requisite authority. But we also hold that, where the affirmative terms of a stated power would justify an enactment, it rests upon those who rely on some limitation or restriction upon the power, to indicate it in the Constitution.101

Sir John Latham, writing extra-judicially, while noting these views went on to point to ways in which the constitutional issue can be avoided. Sir John took the view that while "there cannot be said to be a presumption of validity" the Court "will not declare an Act which has obtained the approval of Parliament to be unconstitutional unless it is necessary to deal with the question of validity for the purposes of determining litigation".102

The reason for this coolness towards the presumption can be explained in part by the perception of certain judges of the nature of a federation. Those judges whose approach to constitutional issues is strongly influenced by the need to protect State power, are unlikely to give any particular weight to the mere fact that the Commonwealth Parliament has legislated on a matter. If one party argues that there is no head of power under which Commonwealth legislation can subsist, then it is difficult for a court to say

00 (1810) 10 us 87, 128. 97 J B Thayer supra n 8, 147. 98 K L Karst supra n 16, 88. 99 W A Wynes, Legislative, Executive and Judicial Powers in Australia (5th ed

1976) 35 (italics added). 100 Attorney-General (Cth) v Colonial Sugar Refining Co Ltd [1914] AC 237, 255;

(1913) 17 CLR 644,653. 101 Amalgamated Society of Engineers v Adelaide Steamship Co Ltd (1920) 28

CLR 129, 154. 102 J Latham, "Interpretation of the Constitution" in R Else-Mitchell (ed), Essays

on the Australian Constitution (2nd ed 1961) 1, 6.

1983] The Presumption of Constitutionality 293

that the law is presumed valid without at least some evidence or argument by those upholding it.

As Brazil has said:

There is a high authority for the proposition that, since the Common­wealth Parliament is a body of limited powers, those who maintain the authority of the Commonwealth Parliament to pass a certain law should be able to point to some enumerated power containing the requisite authority; ... In the case of State legislation, the presumption of validity seems to be general in operation, but there may be counter­presumptions arising if the law appears ex facie to be in collision with a constitutional prohibition. It is not possible to be more specific on the role of presumptions, and their consequential effect in creating, as it were, a burden of proof on one of the parties. For the time being at least, it seems likely that each particular case will be considered as it arises; initial presumptions of validity or invalidity are unlikely to play a decisive role in many cases.103

Much of the problem arises from the indeterminate nature of "judicial notice".104 Although judicial notice of facts plays a major role in the determination of Australian constitutional law questions, it is fair to say that the High Court has not adopted any consistent approach in their determination of the sort of facts of which they will take judicial notice.105

There is, as Brazil recognises, 106 no clear rule as to burden of proof and thus no clear role for the presumption in its evidentiary guise.

It may be that all that the presumption can be taken to mean is that it places a burden on those wishing to challenge the validity of a statute to raise. specifically the constitutional issue and present facts or argument to convince the court to consider it on its merits. The presumption would not, on this view, give any or much assistance to those upholding the validity of a law. Once validity was in issue they would have to go in and defend the legislation. As Professor Sawer says, once you have two contradictory assertions, the presumption does not really enable the Court to put the burden on only the challenging party.107 Yet, use of the presumption as "a prod to force the opponent of a statute to present in detail the circumstances which to him appear to render the statute invalid" might be regarded as a useful application of the presumption.108 But it must be doubted whether the High Court has even taken this approach. Rather, those upholding a piece of legislation appear to be given no advantage. In the Australian situation where, for the most part, constitutionality does not depend on factual determinations or establishment of a "rational basis" for distinctions made by the legislature, the presumption will probably remain of limited value until a change in judicial attitudes.

103 P Brazil, supra n 73, 79. Footnotes omitted. 104 See Note, "The Presumption of Constitutionality Reconsidered" (1936) 36

Columbia L Rev 283, 288. 105 J D Holmes, "Evidence in Constitutional Cases" (1950) 23 AU 235; PH Lane,

"Facts in Constitutional Law" (1963) 37 AU 108. 106 Supra n 103 . . 107 G Sawer, supra n 89, 119. 108 Note, "The Presumption of Constitutionality" (1931) 31 Columbia L Rev 1136,

1147.

294 Federal Law Review [VOLUME 13

CONCLUSION

The presumption of constitutionality does not have a recognised place in Australian constitutional theory. It is suggested, however, that the presump­tion is important and that it should be given much greater prominence. For this to happen will require changes both in judicial attitude and in the perception by Parliament of its constitutional role.

It has been indicated above that in only limited areas does the High Court seek proof of facts. For the most part, the judges make their own determination of constitutionality once it is raised with little reliance on factual evidence which is proved before them. As suggested in this article judges should seek much more factual evidence before reaching constitutional conclusions, including evidence of the legislature's conclusions on relevant facts.

The other judicial attitude that needs to be changed is to develop a deference in the judiciary towards the legislature. Unfortunately, this seems a most inappropriate time at which to attempt this. Recent cases show a renewed judicial activism and determination to uphold the judiciary as the bastion against inroads into individual rights by the executive and even the legislature. Deane J, one of the recent High Court appointments, seems particularly outspoken in this regard.H19 But even Murphy J is concerned to uphold the "judicial power" and not to leave the legislature with any unchallengeable power.110 This no doubt reflects the decline of an indepen­dent legislature as against the executive.

The value of the presumption has too readily been reduced, even by its strongest proponent, by its inapplicability to cases involving constitutional rights and guarantees. Murphy J in Gazzo said that the presumption operates "at least where the challenge is not based on a claimed infringement of a constitutional guarantee or prohibition".U1 As indicated above, however, s 92 should not be seen as a constitutional guarantee in relation to which the presumption would be irrelevant. That section is one of the areas of consti­tutional litigation where there is most potential for use of the presumption.

In relation to other constitutional guarantees, including those that might come to exist if a Bill of Rights were incorporated in the Constitution, the judges need to recognise the need for deference even in this area. In the United States elaborate theories have been developed to justify an activist attitude to judicial review of legislation alleged to infringe constitutional guarantees.l12 At the same time, the Supreme Court has recognised that it is not every constitutional guarantee or prohibition that is fundamental. Only a few are given that status. These include process related rights-those designed to keep the political system functioning in what is perceived to be a fair and democratic manner.ll3 Ultimately, however, the values which are upheld as fundamental can only be justified as such on the ground that they

109 Hammond v Commonwealth (1982) 42 ALR 327, 338-343. 110 Actors & Announcers Equity Association v Fontana Films Pty Ltd (1982) 40

ALR 609, 642. 111 (1981) 38 ALR 25, 44. 112 Supra n 35. 113 Eg Kramer v Union Free School District No 15 (1969) 395 US 621, 627-628.

J H Ely, supra n 35, Chs 4, 5. Cf L H Tribe, "The Puzzling Persistence of Process­Based Constitutional Theories." (1980) 89 Yale Law Journal1063.

1983] The Presumption of Constitutionality 295

reflect basic value choices made by the community which the judges reflect. If, as Deane J recently said, "The source of law and of judicial power in a true political democracy such as Australia is the people themselves ... "114

then it behoves the judiciary to tread cautiously in the face of a deliberate federal legislative choice to interpret a constitutional provision, whether a power, a guarantee or a prohibition, in a particular way. This is not to suggest that the presumption of constitutionality should not apply in a more limited way to what are perceived as constitutional safeguards. Rather, it is merely to suggest that the broad language of Murphy J quoted above11G

hides fundamental issues concerning the basis of judicial review.U6

If the judicial deference championed above is to eventuate, it is recognised that Parliament itself needs to reassert its role in the determination of constitutional questions. Concern was expressed in a minority report contained in the 1929 Royal Commission on the Constitution that

the authority of the Commonwealth Parliament as a law-making body has been impaired by the paramount and incalculable power of the High Court in its capacity as arbiter of the powers, and that the responsibility of Parliament and of the Cabinet have been lessened accordingly.117

A first step to redress this is for Parliament itself to assert its role in constitutional questions. The Senate was designed as a States house. While it is not perceived as such any more by many commentators, it is still representative of the people of the States and composed of equal numbers from each State. It is suggested that the Senate should accept a prominent role in constitutional issues as representative of the people of the States.118

If Parliament included an express determination as to the link which it perceived between some activity or provision and the head of power in question, the Court would find it much harder to say that there was no rational connection with the power. So long as Parliament indicates its willingness to defer to the judicial judgment then the courts will see little need or scope for the presumption. This may need a new approach to the drafting of statutes. In the light of the recent amendments to the Acts Interpretation Act119 concerning the ordinary interpretation of statutes, there seems no reason, however, why courts should not be directed to take account of legislative consideration of an Act in considering its constitutional validity, even though the judges would insist that no legislative findings were conclusive or binding on them.

The judges of the High Court have been fairly ready to accept statutory changes in the onus of proof, even when the onus relates to a constitutional fact. Gibbs CJ in Fontana actually said that the Parliament can place on a

114 Made at his swearing in as a High Court Justice, 27 July 1982, see (1982) Legal Reporter, Vol 3, No 13, 3.

115 Above p 294. 116 See D I Galligan, "Judicial Review and Democratic Principles: Two Theories"

(1983) 57 ALI 69. 117 Report of the Royal Commission on the Constitution, 1929. Minority Report,

p 245. 118 See for a recent view on the role of the Senate as a States house, a paper by

I Uhr, ''The Australian Senate and Federalism: A Research Note" delivered to the Third Federalism Project Conference, ANU, February 1983.

119 S 15AA Acts Interpretation Act 1901 (Cth).

296 Federal Law Review [VOLUME 13

person affected by a law "the onus of proving that a constitutional fact does not exist''.120 This would seem to give considerable scope for changes in the burden of proof. Parliament, it seems, could provide for a general onus on persons challenging the constitutional validity of legislation to establish the lack of constitutional facts upholding the legislation in question. It might be more difficult to alter the onus in a case involving the determination of the meaning of a constitutional expression perceived by the judge to be a question of law and not of fact. There seems no logical reason, however, why the onus could not be altered in these cases also, to put the burden on one challenging a piece of legislation to show that it had proceeded on a wrong interpretation of the Constitution. The legislation obviously could not preclude judicial inquiry or bring within power persons or activities clearly outside power. But such legislation might make a challenge to the constitutionality of legislation more difficult. This would be one way by which to develop an attitude of judicial deference to the legislature, and to reassert a legislative role in constitutional questions.

The current proposal to confer an advisory opinion jurisdiction on the High Court121 does not, however, stand very easily with the new consti­tutional role for the Parliament suggested in this article. Rather, it reinforces the view that the Court alone possesses a competence to pass on consti­tutional questions. That is not a view which this writer supports. Parliament does not seem ready to relinquish its powers over its own privileges to a court. Nor it is suggested should it accept advice from a court on how it is to exercise its legislative judgment.

There are constant references in judgments to the need to accept the good faith of Parliament and to accept that it will not abuse powers that the Court may recognise that it possesses. Ultimate protection lies with the good sense of the electors.122 It seems consistent with this approach to accept that Parliament, which is composed to reflect the federal system, will only legislate in circumstances where some constitutional basis can at least be argued to exist. If federal legislation is seen as necessary and it is enacted, then it is suggested the Court should presume the legislation valid.

It may be argued that to give the legislature such a major role in consti­tutional decision-making is dangerous in a situation where the legislature is seen as largely moribund and captured by the executive. Judicial review of executive action is seen to be desirable and in fact to be encouraged. Thus, it might be argued, a similar attitude of judicial surveillance of the legis­lature should be accepted as an important safeguard. However, the issues raised by review of executive actions are rather different from the federal issues raised in most challenges to legislation on the ground of unconsti-

120 (1982) 40 ALR 609, 619. See also Milicevic v Campbell (1975) 132 CLR 307; R v Smithers; ex parte McMillan (1982) 44 ALR 53.

121 See Report of Senate Standing Committee on Constitutional and Legal Affairs on "Advisory Opinions by the High Court", Pari P No 222/1977; Australian Consti­tutional Convention, Report of Standing Committee D (1982); Constitution Alteration (Advisory Jurisdiction of High Court) Bil11983.

122 Western Australia v Commonwealth (The first Territories Representation case) (1975) 134 CLR 201, 271 per Mason J; Amalgamated Society of Engineers v Adelaide Steamship Co Ltd (1920) 28 CLR 129, 151-152; South Australia v Commonwealth (1942) 65 CLR 373, 429 per Latham CJ.

1983] The Presumption of Constitutionality 297

tutionality. These latter challenges involve legislation passed by representative Parliaments, and not just executive or official acts.

If it is believed that under representative government as it exists in Australia the will of the people is reflected in the legislatures then it is strongly suggested that the courts should be prepared to defer to them unless there is good reason to the contrary. The federal system is reflected in the composition of the federal legislature and there is no justification for the creation of federal implications or special standards of judicial scrutiny on the ground that some perceived federal balance is threatened. The solution advocated is rather to strengthen and reform the parliamentary process and to encourage the legislature to take a more active role in the determination of constitutional questions. Just because legislatures may not at present be doing the most effective job is no reason to allow the judges to play an ever more prominent constitutional role.

As in most constitutional law issues, one ultimately is brought back to the fundamental question of what is the basis of judicial review. In Australia this has unfortunately not received the attention it deserves. As American public law scholarship indicates, however, it is a fertile field, even if elusive in terms of outcomes. The presumption of constitutionality can go some way to ensuring a limited judicial role without the need necessarily to question the existence of judicial review itself. Its acceptance would be a useful first step in a reassertion of a limited judicial role in the determination of constitutional issues.

POSTSCRIPT

Since this article was originally written, the High Court has handed down its decision in Commonwealth v Tasmania123 (the Gordon below Franklin Dam case). In that decision Murphy J reaffirms his view that "there is a strong presumption of the constitutionality or validity of every Act."124 He then gives a wide-ranging survey of cases from Australian and foreign courts-including those of the United States, Canada, India, Malaysia, Philippines, Ireland, Pakistan, Bangladesh, Japan and the Federal Republic of Germany-where the presumption of constitutionality has been recog­nised.125 Murphy J also recognises a corollary presumption "that the existence of all facts and circumstances essential to the validity is presumed."126 Murphy J had the benefit of this article and cites it in his judgment.

The only other Justice in that case to mention expressly the presumption is Brennan J who, in relation to the external affairs power and the question whether a law does, in fact, give effect to an obligation under a treaty, said:

The Court may stand in greater need of evidence when a law is made in purported pursuance of the external affairs power, and the presump­tion of validity may have a function to perform in some cases. But this is not one of them.127

123 Unreported, 1 July 1983. 124 Judgment 126. 125 Judgment 126-132. 126 Judgment 132. 127 Judgment 209.

298 Federal Law Review (VOLUME 13

Brennan J does not elaborate on this point. He sees some similarity, however, between the defence power and the external affairs power.

Mason J was prepared to defer to the judgment of the legislature and executive in relation to whether the subject matter of a convention is of international character and concern; whether implementation of a conven­tion will bring a benefit to Australia or whether non-observance of a treaty obligation is likely to lead to adverse international reaction.128 In saying this, however, Mason J appears to be relying more on a "political question" doctrine than any broader presumption of constitutionality.

Commonwealth v Tasmania has, thus, essentially confirmed the thesis of this article: that only Murphy J is consistent in his use of the presumption in order to support deference to the Parliament, an Act of which "is the authentic expression of the will of the people through their elected represen­tatives."129 The reference to the presumption by Brennan J appears to be to the presumption as an evidentiary matter,130 or what Murphy J calls the "presumption of facts essential to validity" .131

128 Judgment 86. 129 Judgment 126. 130 Above p 291. 131 Judgment 132.