By Dr John Waugh

So you don’t want to pay your council rates, or your parking fines? If you live in Victoria, a bit of searching on the internet will provide you with what looks like a great solution: you don’t need to pay, because the Victorian Constitution is invalid. Anything that local councils do under its authority is invalid too. These arguments recently came before the High Court, not for the first time, in Rutledge v Victoria [2013] HCATrans 294 (Hayne J).

Mr Rutledge claimed that he wasn’t bound to pay his rates to the Greater Bendigo City Council, because the creation of the Council wasn’t properly authorised. In effect, the argument was that the Victorian Parliament couldn’t validly establish the Council, because the power it relied on was given by the Constitution Act 1975 (Vic), and that Act was invalid.

Law and mystery
Mr Rutledge had earlier made the same claims in the Victorian Supreme Court, without success. Now he took his case against the State of Victoria and the Greater Bendigo City Council to the High Court. They applied for judgment against him, on the ground that his action was bound to fail.

It’s not hard to see the appeal of arguments like these, at least until you look at the details. Arguments about constitutional validity turn up routinely in the news, and occasionally the courts do indeed overturn Acts of Parliament or government decisions on constitutional grounds. To the ordinary ratepayer, it’s not immediately apparent what the difference is between, on the one hand, arguments that the High Court has accepted in such cases as South Australia v Totani [2010] HCA 39 (the Finks Motorcycle Club case) and Williams v Commonwealth [2012] HCA 23 (the school chaplains case) and, on the other, the arguments put forward in Rutledge and similar cases.

From the outside, constitutional law is often mysterious. The subtle and complex grounds on which challenges succeeded in Totani and Williams seem to hold out the promise that similarly arcane reasoning might succeed in other situations. True, the consequences of accepting the arguments for Mr Rutledge would be sweeping, entailing the invalidity of Victoria’s constitution, but it’s possible to find comparable examples by reaching further back into history.

The invalid constitution
In the nineteenth century, the legislation under which South Australia’s Parliament was elected was twice found by the British Attorney-General and Solicitor-General to have been invalidated by procedural flaws, calling into question all subsequent legislation, including the Constitution Act 1856 (SA). The British Parliament came to the rescue with the Australian Constitutions Act 1862 (UK) and the Colonial Acts Confirmation Act 1863 (UK), which validated the South Australian legislation.

These problems had been highlighted by the eccentric Justice Benjamin Boothby of the South Australian Supreme Court, along with a long list of other objections to the enactments of the local Parliament. Doubts he raised about the validity of colonial laws that departed from English models were removed by the Colonial Laws Validity Act 1865 (UK). It included a catch-all provision to end any remaining problems with the validity of South Australian legislation.

And Victoria?
Any similarities between these old problems in South Australia and more recent challenges to Victoria’s constitution disappear on closer inspection, however. The ground relied on by counsel for Mr Rutledge in the High Court was that the Queen didn’t assent to the Bill for the Constitution Act 1975 (Vic).

If this claim was true, it would indeed have the consequence that the Act was not validly enacted. Royal assent is essential for the enactment of any Act of Parliament, and in the case of the Constitution Act 1975 (Vic), that assent had to be given by the Queen and not (as usually happened) by her representative in Victoria, the Governor.

The requirement for the Bill to be reserved for the Queen’s assent arose under s 1 of the Australian States Constitution Act 1907 (UK). That section replaced an earlier requirement for reservation under s 4 of the Victoria Constitution Act 1855 (UK), known in Victoria as the Constitution Statute. The need to reserve Bills for the Queen’s assent applied only to some State legislation, and it was ended altogether by s 9 of the Australia Acts 1986 (Cth and UK), after the enactment of the Constitution Act 1975 (Vic).

So far so good. But unfortunately for Mr Rutledge, the Bill for the Constitution Act 1975 (Vic) was reserved and duly received the Queen’s assent. Her assent was recorded by an order in council (a decision of the Queen made with the advice of the Privy Council) now held by Public Record Office Victoria.

But was an order in council the right way for the Queen to assent to the Bill? The Queen didn’t sign the order. Did the law require what it calls the ‘royal sign manual’ — that is, the Queen’s signature?

In court, counsel provided no authority for the proposition that the Queen’s signature was necessary for royal assent. All the authority went the other way. As Justice Hayne held, ‘it is evident that the practice, long established, of signification of Royal Assent by Order in Council constitutes satisfaction of the requirements of section 1(1) of the Australian States Constitution Act 1907’.

The normal practice of the Privy Council is that the Queen doesn’t sign orders in council. As Halsbury’s Laws of England says, orders in council are ‘authenticated by the signature of the Clerk of the Council’, not by the signature of the monarch (8(2) Constitutional Law and Human Rights (Reissue) [525]).

Constitutions old and new
The royal assent argument was the only one that counsel for Mr Rutledge relied on in the High Court. Rejection of it meant that his claim failed, and judgment was entered against him. But there was another argument in his original writ of summons. It concerned the power of the Victorian Parliament to enact the Constitution Act 1975 (Vic).

The gist of the argument was that the Victorian Parliament didn’t have power to repeal the 1975 Act’s predecessor, enacted in 1855. And if it had any power over the 1855 Act, it was a power to repeal only parts of it, not the whole Act.

This argument rested on a basic, if understandable, muddle about the way the constitution of 1855 was enacted. The Victorian constitution of 1855 was drafted by the Victorian legislature of the day, the Legislative Council, using powers given to it by the British Parliament in the Australian Constitutions Act 1850 (UK). When the Legislative Council passed the Bill and sent it to London for royal assent, the British government made changes to it, taking out some clauses that it disagreed with. Other parts of the Bill were inconsistent with other British statutes (as the Legislative Council knew), so British legislation was needed to validate it.

The outcome was the Victoria Constitution Act 1855 (UK). It authorised the Queen in Council (the Queen acting with the advice of the Privy Council) to assent to the amended Victorian Bill, cleared away the inconsistent British statutes, and said that both the British Act and the Victorian Bill, once assented to, would take effect in Victoria. The Queen duly assented to the Victorian Bill by an order in council, which was then sent to Victoria in a despatch to the Governor. It remains with the despatch today.

Under Victorian statutory interpretation legislation, the British Act of 1855 was called the Constitution Statute, and the Victorian Act (the constitution itself) was called the Constitution Act.

The 1855 Constitution Act wasn’t an Act of the British Parliament, although it was backed up by one. The British Act, the Constitution Statute, gave the Victorian Act legal force and gave the Victorian Parliament power to repeal it—‘to make Laws altering or repealing all or any’ of its provisions (s 4). This was the power that the Victorian Parliament used in s 96 of the Constitution Act 1975 (Vic) to repeal the 1855 Constitution Act.

The muddle in the argument for Mr Rutledge was to confuse the British Act with the Victorian Act. The British Act gave the Victorian Parliament full power to repeal all or any of the provisions of the Constitution Act, and that is what Parliament did in 1975.

Law and magic
It didn’t take Justice Hayne long to deal with the arguments for Mr Rutledge. They were based on clear mistakes about law and history. But it’s unlikely that the decision will stop claims being made that the Victorian constitution is invalid — and, in a way, the details of the legal questions involved are the least important part of the case.

Rutledge joins a long line of cases in which the courts have rejected claims about the invalidity of the Victorian constitution (details below). Local councils in Victoria receive so many refusals to pay rates or fines on these grounds that the State government has produced a fact sheet in response. The claims always fail once they reach the courts, but from the point of view of the people who make them, they might succeed in causing delay and making things difficult for government agencies.

These cases have similarities with others in which claims of invalidity have been made about the Australian Constitution and Commonwealth legislation. Examples include Joosse v Australian Securities and Investment Commission [1998] HCA 77 and Professional Nominees Pty Ltd v Walsh [1998] QCA 296.

The arguments in the cases vary greatly, but they have some common elements. Among them is a belief that somewhere there’s a legal argument that will, like a magic key, remove the burdens that the parties are suffering under, whether they are rates, taxes, bankruptcy or anything else that the state demands of its citizens. It’s as if the key can be found by anyone who carefully studies legal sources for themselves, and it can be made to work by formulating documents with the right permutations of legal terminology.

The magical element in all this is its detachment from the way law actually works, and from the kinds of legal action that could conceivably give the challengers the outcomes they want. Some of the arguments are more like spells or random combinations of legal words and phrases than statements the courts are able to act on. But they are a window into the way law is perceived, not by lawyers, but by some of the people who live under it.

Unsuccessful claims that the Victorian constitution is invalid

• Fyffe v Victoria [2000] HCATrans 233.
• Shaw; Application by [2001] VSCA 175.
• Fyffe v Victoria [2002] HCATrans 442.
• Joosse v Deputy Commissioner of Taxation [2002] VSCA 47.
• Knight v Bell [2002] HCATrans 447.
• McFarlane v National Australia Bank [2003] HCATrans 606.
• Walter v Registrar of Titles [2003] VSCA 122.
• National Australia Bank v Walter [2004] VSC 36.
• Rutledge v Victoria [2013] HCATrans 294.

AGLC3 Citation: John Waugh, ‘Is Victoria’s Constitution Invalid? Rutledge v Victoria’ on Opinions on High (16 December 2013) <https://blogs.unimelb.edu.au/opinionsonhigh/2013/12/16/waugh-rutledge>.

Dr John Waugh is a senior fellow in the Melbourne Law School. His research interests include Australian legal and constitutional history.