Legislating Against Constitutional Invalidity: Constitutional Deeming Legislation

Sydney Law Review, Vol. 34, p. 721, 2012

39 Pages Posted: 10 Jan 2013

See all articles by Will Bateman

Will Bateman

Australian National University

Date Written: 2012

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

Suggested Citation

Bateman, Will, Legislating Against Constitutional Invalidity: Constitutional Deeming Legislation (2012). Sydney Law Review, Vol. 34, p. 721, 2012, Available at SSRN: https://ssrn.com/abstract=2198720

Will Bateman (Contact Author)

Australian National University ( email )

Canberra, Australian Capital Territory 2601
Australia

HOME PAGE: http://https://law.anu.edu.au/people/will-bateman

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