Legislating Against Constitutional Invalidity: Constitutional Deeming Legislation

Abstract

It is a little known feature of Australian constitutional law that the High Court has upheld the constitutional validity of legislation that reverses the effect of an earlier declaration of constitutional invalidity. Such legislation operates by deeming all persons’ rights and liabilities to be the same ‘as if’ no constitutional defect existed, and has been passed in the wake of the some of the Court’s most momentous decisions concerning ch III of the Constitution: Kotsis v. Kotsis, Knight v. Knight, Re Wakim; Ex parte McNally and Lane v. Morrison. The cases that have considered the constitutional validity of such legislation, R v. Humby; Ex parte Rooney, Residual Assoc Corp v. Spalvins, Re Macks; Ex parte Saint and Haskins v. Commonwealth, are among the most complex in the Court’s history. Until now they have not received detailed scholarly examination. This article analyses that case law, noting in particular the shift in the Court’s interpretation of constitutional deeming legislation in the 2011 case of Haskins v. Commonwealth. It goes on to evaluate the uncomfortable position occupied by constitutional deeming legislation in the Australian constitutional context and concludes by commenting briefly on the applicability of alternative mechanisms, drawn from other constitutional systems, which achieve the same outcome as deeming legislation.

Keywords: constitutional law

JEL Classification: K00, K10, K39, K40