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. Continue reading →