The rule of law doctrine is a Diceyan¹ string invention, bound, on equal sides, to rings cemented into a triangle which some may call democracy. If, in the political wind, the sovereign tip sways left, right, backward or forward, the general idea of all three arms, thread through equal rings, means that little political wind can blow the sovereign into the furious frenzy of a dreaded "elective dictatorship"². Since 2 arms, the legislature and the executive, have been closely bound in Australia, with the sovereign executive a whole and important part of the legislature, it is the judiciary, and in particular the High Court, who are the guardians of individual and human rights; the check and balance of the system. In the last 104 years of Federation it has been the High Court, with as much power as Chapter III will grant, that has interpreted the constitution so that the people have both implied and explicit rights. Without a bill of rights, and without a High Court, the legislature, in an extreme rule of law context, may well take away all fundamental rights, or at least design legislation that may be offensive to public or international interests. For the idea of the Rule of Law, and sovereignty are irreconcilable.³ It is the judiciary which attempts to keep the fundamental rights of the citizen; due process, freedom of political speech, religious belief and association, and rights of dwelling, alive and well, and "judicial independence...is the lifeblood of constitutionalism in democratic societies".⁴ It is sovereignty that would see oppressive legislation a reality, and it is under the rule of law that such legislation is interpreted, and perhaps, but only perhaps, validated.

The political wind may blow, but the law remains steadfast, like an old tree. Should the wind blow too hard, the trunk is tied 2 ways. Should either branch bow under pressure, then the democratic system becomes no more. In the future, let the ropes, of sheer intellect and equality, pull hard on the chain of power. As long as the High Court proposes to deal out good law, then good law is forced to be made.

There is no true separation of powers in Australia. We have only 2 arms: "this consensus is represented by the majority of the bench in the Boilermakers Case."⁵ This situation makes the High Court's role very important when validating or invalidating legislation. As the ideals of responsible government have been whittled away by an increasingly ambitious and professional polity, for example, as demonstrated by the recent years of dishonest leadership for which no minister has volunteered to step down; the ideal has become that of a responsible court, the powers of which have become stronger, as disillusionment with parliamentary process ebbs and flows.⁶ Though not only has power flowed to the judiciary, it has also risen in the executive, from where, increasingly, parliamentary directives are passed down. Though the judiciary is not elected, and therefore not officially accountable, "and the judiciary cannot set itself up as a rival of the legislature"⁷, the decrease in responsible government has meant that politicians, it seems, are also unaccountable. With the rise in the executive, and in particular with a figure like John Howard, all attention is placed on the personality and power of the leader, rather than on the 2 houses through which legislation must be grown; "the realities everywhere have enhanced the power of cabinet, and especially of the head of government."⁸ Therefore it is becoming ever more important for the judiciary to interpret domestic legislation in line with Human Rights issues and International Conventions and treaties; to keep political personalities, if particularly over powerful, in check. Without a Bill of Rights, and a greater amount of explicit freedoms and guarantees within the text of the constitution, "it is said to be a principle of Australian statutory interpretation that statues are to be interpreted and applied in conformity and not in conflict with established principles of international law."⁹ Here the rule of law doctrine is being interpreted by the judiciary, as a rule with which to fetter parliamentary supremacy, rather than enshrine it.

A good example of this facet of the rule of law doctrine can be seen in the outcome of Commonwealth v Tasmania.¹⁰ An expansionist reading of the External Affairs power, a power that Dawson J, pre'Tasmania dams, had warned had " the potential to obliterate the division of legislative power otherwise affected by s 51";¹¹ is taken by the bench to strike down as invalid, state legislation which would have a dam constructed in an environmental area protected under Article 6 of the Convention for the Protection of the World Cultural and Natural Heritage.¹² Such constitutional jurisprudence reflects a rule of law doctrine, which not only sets out to include international prerogatives as an essential buffer against mala fides parliamentary will, but also reinforces the idea that the Federal Government is essentially well above the state legislatures in the model, as one would logically induce from s 109 of the Constitution. In the Tasmanian Dams case it was up to the High Court bench to decide whether state or federal legislation could be invalid in regards to International obligations; another tool with which to keep parliamentary power, in this case state power, rational and appropriate.

The interpretations of s 51 (xxix) display positive and negative aspects of the head of power. Though it is regarded by the Judiciary to be their role to interpret legislation in line with International obligations, there is also a point at which such fettering is simply not possible according to the rule of law. At the end of the day, the executive remains the most potent figure of the system. The Governor General remains the royal mouth and hand, the Prime Minister, and cabinet, are at the bequest of this; "it is not open to impute mala fides with respect to an act of the King by himself of his representative."¹³ It is the executive, not the court, that has the power to choose and sign International treaties; eventually it is also the parliament which decides to substantiate International agreements through domestic legislation.

In this respect the High Court is still the passive lawmaker; it can only make law when law is brought to court. It is the prerogative of parliamentary politics that a ruling party will push legislation to the ends of the aims of the party, and one would hope the wishes of the people, and eventually these aims come under close scrutiny; "when Parliament fails to consider and to determine important social, economic and political questions, as is frequently the case ' as it was in Mabo ' the courts will be called upon to resolve them in the form of legal issues".¹⁴ Values are taken into account by the court, even if those values are not necessarily inherent in the will of the parliament. Again, under the rule of law, the court can only go so far. It is limited by it's own role in the system; "if those attitudes are taken up and validly enacted as statue law, then the courts must give effect to the statue."¹⁵ The court can obviously get around such obstacles to a progressive interpretation, by interpreting legislation in the light of international concern (as concern can be again judicially interpreted), and particularly in the area of human rights. Again there is disagreement as to what extent the court is able to divine international concern, if such concerns are not inherent in parliamentary legislation: "the court cannot substitute its judgement for that of the executive government and Parliament"¹⁶, however, it seems even judges are apt to contradict each other, and this is why there is so much room for judicial interpretation. Even though Mason J believes that Parliamentary will is supreme, as traditionally accepted by those that would adhere to a strict interpretation of the rule of law, Gleeson J has said that "High Court Judges do not set out to give effect to government policy. They administer justice, according to law".¹⁷ It seems there is great room for disagreement among even the High Court bench, about the extent and strictness of the doctrine.

In my opinion Justice is an extra textual concept; one created, not by legislation, but by those who judge. Decisions like Mabo, recognize that "International conventions which have been ratified by Australia and many other countries are a source of identifiable values of an enduring kind."¹⁸ Therefore the traditional rule of law is informed by both the common law and International. It may even be said that enduring international values support fundamental rights implied in the doctrine, and that without jurisprudence, there, perhaps, could be no justice.

What is better for the Doctrine? Active or passive judges? In Australia we seem to have 3 kinds.

1. Those that adore and profess to the inflexible rule of law, i.e. Dawson and Brennan JJ: "this court is not free to adopt rules that accord with contemporary notions of justice and human rights if their adoption would fracture the skeleton of principle which gives the body of our law its shape and internal consistency"¹⁹ ( In other words, law as a principle is more important than the rights of those it rules).

2. Those that profess to the rule of law, the supremacy of parliament, yet make law, in some part refusing to admit doing so, in order to keep the government in their checks and balances, for example Gleeson J: "What judges are doing has not changed. The change that has taken place is in context in which they are doing it. The legitimacy of judicial law'making is questioned in an age when the public equate legitimacy with democratic election and direct accountability."²⁰

3. Those that are open about their law making function, for example Kirby J: "Judges...have been making the law for 700 years."²¹

In some areas of constitutional jurisprudence, the rule of law doctrine is a vouch for parliamentary sovereignty, in other areas parliamentary supremacy is oft seen as having a negative affect on the ideals of democracy: "whatever the wishes of a majority, they ought not be given effect at the expense of a minority, large or small... yet...We do not attend to it in our Constitution, we do not discuss it on any intellectual level that commands respect, and yet there is no question more crucially important for the health of democratic society."²² An active judge is aware of the social ramifications of particular legislation constitutionally interpreted. A passive judge, accepts that the view presented legislatively by the parliament is therefore the will of the people, not excluding that 'the people' are simply the majority. Such judicial tension, between active and passive jurisprudence, can be seen in the Kirby J's judgement in Katinyeri. In favour of a progressive reading Kirby J said: "Each generation reads the Constitution in the light of accumulated experience. Each finds in the sparse words ideas and applications that earlier generations would not have imagined simply because circumstances, experience and common knowledge did not then require it. Among the circumstances which inevitably affect any contemporary perception of the words of the constitutional text are the changing values of the Australian community itself."²³

In a question posed to Murray Gleeson CJ, phrased "What does the Australian Constitution do for the Australian people?"²⁴, I found it interesting to note Gleeson CJ left the mention of civil rights until last. Pre civil rights come the interests of lawyers and politicians and thinkers who enjoy employment from the wide and varied legislative machine that has become the Federal nation state. What is a constitution if not for but the people? The people are sovereign; it is the duty of the executive to listen, and counsel, but not to rule. Why then would a now CJ of the HC leave our rights until last mention? In fact, he doesn't even end with the mention of the people but says the constitution governs the relationship between various governments with which it deals and the people who are affected by it. In the view of Gleeson CJ, it seems the constitution is in the whole to do with governance, in this way it could be said that the constitution affects the people, though for those that want to change it, and it seems there are and have been many, in the words of Robert Menzies it is "one of the labours of Hercules".²⁵

This is good and bad. Frustrated Justices must first be brought relevant and important cases before they can have a say , which depending on the whereabouts of those who appointed them, may throw themselves into a lumbering minority. There was no such minority in Mabo. If one was to sympathize with the aboriginal people of this 'nation' then one could say that sovereignty does not exist. The ideal that sovereignty landed with the invading English forces in the late 1770's could be merely an old time fallacy developed to justify the invasion of this land:

If there is no sovereignty, then there cannot possibly be the rule of law.
If there is no rule of law, then there is little justified governance, least of that, governance which should take its lovely nation and go and fight other nations in a grapple for natural resources, angering its newest neighbour (East Timor), after getting to know them for a little while, even freeing them from an Australian made ' Suharto endorsed murderous cage, befriending them, and then letting them know that everything, when you are free, comes at quite a distorted price: " the meagre "concessions" contained in the Timor Sea Treaty ultimately represent the amount calculated by the Australian government to be the minimum required for the maintenance of a semblance of stability and the suppression of social unrest in the poverty stricken nation."²⁶

Idealism should change the constitution, at least for it to enshrine, in the explicit written word, the rights of the Australian people, and what they can expect from governance. Justice Murray Gleeson could have mentioned, that because these rights are not written in the constitution, the constitution is both the vessel and challenge of civil liberties.

Many cycles of governance bring people into power who try eventually quite hard to take rights away. Cases like Kable²⁷, in which a state parliament is trying to keep a criminal who has served out all his sentence, in jail extensively, are cases in which a High Court must decide about the nature of fundamental rights. One of the more socially conservative amongst them, Brennan CJ, said: "a purported law has never been held to lack the character of a law simply because it affects the liberty or property of only a single individual".²⁸

If everyone is equal before the law, how can laws be made for individuals? Should not laws be made for everyone? Can a powerfully supreme power then make laws for its members that only apply to them? Laws that naturally exclude anyone else? I find it strange that Dawson J, also in dissent in Kable, claims that any idea that the Parliament is not sovereign was abolished in 1688.²⁹ I find it stranger still that he can exhibit such displeasure at the remarks of Cooke J in the New Zealand Court of Appeal; Cooke J said " some common law rights may go so deep that even Parliament cannot be accepted by the courts to have destroyed them". Dawson J would clearly feel no remorse dismissing an appeal against the legislation that would have all brown eyed babies killed; blue eyed babies might mean a national genocide. Cooke J's remarks were in 1984, and in his judgement directly after, Dawson J has commented "As this Court observed, that view was rejected by Lord Reid in Pickin v British Railways Board"³⁰. This case took place in 1974. How can a court observe a Lord rejecting comments that will not be made for another 10 years? Perhaps the High Court JJ's are of such great intellect that they have finally reinvented the ancient art of time travel.

My answer to Dawson J is that absolute parliamentary supremacy (and a gullible voting stock) took Hitler to power on the back of a booming economy. The German people believed that his physical intrusions into sovereign nations were of a friendly nature. An ambitious and conservative leader was voted in by a scared and misinformed public, who were eventually taken to war, at great price for "the homeland". What is the final stop of the legislature if not the High Court? Problems that legislation causes in the community means that the complaints are taken to the Highest Court in the homeland.³¹ If there is a significant problem with the legislation, it is up to the High Court to strike it down as invalid, especially if the legislation is interfering with "fundamental rights" of the Australian citizen, though even these rights, the most conservative within the system would disallow. An extremely right wing parliament might otherwise think that the poorest and most simple deserve nothing less than a life of sweet servitude to their economic masters. If you do not have money, you do not have freedom to develop³², and, if legal dissenters are to believed, you do not have fundamental rights. It could be said, in this case, that parliament made law is a "mere technique for the conquest and maintenance of power."³³ and that "by its coercive character law can be distinguished from custom and morality."³⁴ In an extreme political situation, which can arise under and because of the doctrine of the rule of law, "the annihilation of the rights to personal, political and social freedom is justified [by Fascism], which asserts that all these fundamental rights are the mere offspring of capitalism."³⁵

In Australia it is undecided, because of the lack of explicit rights and freedoms in the constitution, whether such fundamental rights even exist, before they can be taken away. Although the outcomes of cases such as Langue v ABC, and Australian Communist Part v The Commonwealth, indicate that the court is willing to legislate in favour of basic rights, the freedoms are hardly absolute but limited to what is necessary for the effective operation of that system of representative government provided for by the Constitution.. Even then there are hints that the Constitution may imply even more rights than it at first appears.

Such judicial favours and leanings become especially precarious in times of war, when rights are often curtailed, and liberties taken away, for the sake of a 'safe' country, or cynically, the legislation is put in place to keep governments safely in their seats of power. During such time it is "well established that the executive power may be used to authorise legislation imposing sanctions for seditious or subversive conduct".³⁶ One would hope, that even in times of war, rights such as those expressed in the judgements of Theophanous v The Herald and Weekly Times ³⁷, carrying on from the decisions in "Nationwide News and Australian Capital Television [which] established that the implied freedom is a restriction on legislative and executive power",³⁸ are not over ruled. If this was the case then the supremacy of parliament could hardly be said to reflect the will of the people, and the reflection of the rule of law by Australian constitutional jurisprudence could become less legalistic than politically influenced and/ or jaded. It was also said in Davis, that "the legislative powers of the Commonwealth extend beyond the specific powers conferred upon the Parliament by the Constitution and included such powers as may be deduced from the establishment and nature of the Commonwealth as a polity."³⁹ It is unclear whether the rule of law doctrine here, extends only to our government or to the wishes of the majority involved in the "common ' wealth." Wealth, it seems, may influence both arms more radically than the rights of the people, for it is those with wealth that seem to be in control. And war is essential to the making and keeping of riches.

A fine example of wartime or pre war legislation, if one is intellectually reactive to a government which tries to legislate fundamental rights away, was the raft of 5 bills named the 'Counter Terrorism Laws', which the Howard government first introduced in 2002.⁴⁰ The Bills were designed to allow police and intelligence agencies to detain people without charge or legal advice, redefined terrorism and treason, and could still quite possibly outlaw many forms of political process and industrial action. A direct correlation may possibly be inferred to the executive powers in Germany in the 1930's.

In such a time, it is encouraging to have a strong, as in principled and socially aware, High Court judiciary. If such legislation is brought before the court to be interpreted one would hope that a present justice may hold the same view of the rule of law doctrine as Dixon J did in the 1950's when he, warning of unfettered executive power, said: "history and not only ancient history, shows that in countries where democratic institutions have been unconstitutionally superseded, it has been done not seldom by those holding the executive power. Forms of government may need protection from dangers likely to arise from within the institutions to be protected."⁴¹ It is a feature of the rule of law, that the high court, as the balance of the model, can strike down offensive legislation "if its scope or application potentially exceeds the Constitution.⁴²

The already plenary power of the Commonwealth seems to increase in such wartime situations. I am curious to see whether such powers can be justified when our nation declares war against a sovereign nation, as well as they have been justified when the country has been attacked; the 2 situations essentially represent opposite spectrums of the rule of law. Under one rule there is trust that the government will make sound decisions in the name of defence under s51 (vi); under the other extreme rule of law, when the parliament has declared an initial offensive, there is hardly a sub section in s 51 which outlines a power to make laws 'on the attack', or as our present leader would say, 'pre'emptive strike.'

Is the constitution merely a document that keeps politicians and legal practitioners, in particular the High Court judiciary, employed? "It excluded the Aboriginal people, it excluded the Chinese and other non'indigenous people, it excluded the Pacific Islanders from the debates, but it grew out of the will of the majority of the people on the continent at the time."⁴³ What was the majority of the people at the time? Who created the constitution? " What is our 'native land'? It is a cherished and fading illusion...Excessive patriotism...is a narrowment... of the mind and the arrogance of the white race, especially that of the British Empire".⁴⁴ White men created a white man constitution, and it could be suggested that it is the constitution that has allowed Australia to increasingly become a federal economy proclaiming economic rationalism over a warm, organic social community.

It is possible Rose Scott would be turning in her grave.⁴⁵ But her view is clearly not represented in the formal conventional debates of the early and late 1890's. At the time women had very little say. I believe it is therefore unfeasible for a High Court Justice, and a very much respected one at that, to say that the constitution grew out the will of the majority when "84 per cent of the people, including all women outside South Australia and all indigenous Australians, could not or did not vote in the federation referendums of the late 1890's."⁴⁶ Under the constitution indigenous Australians did not even have the right to vote, the mechanism of true citizenry, until 1967. The original owners of this land, who were very much in the majority when the English arrived, and who were gradually killed off, had no legal say, although they were still sent to foreign wars, under a constitution which supposedly represents the bastion of representative democracy.

Though a change to the system under our constitution is unlikely, and hardly within the powers of a High Court judge, it is interesting to play with the notion that Representative democracy is having a single seat for every separate interest, minor or major, and sitting them in a great hall, where all year round issues are debated and solutions for old and new problems are found and sorted. Representative democracy, and the rule of law, could be said to be least served by re'employing a large group of middle and upper class white men and women, quaffed by party politics and influenced by large sums of corporate cash; or is this covered by section 51, s 51 (i) (Trade), (iv) (Borrowing money), (xx), (xxvi), (xxxix), the incidental powers?

Thankfully the same High Court Justice believes that it is the advantages of judge made law that keep a legislature in check if they veer outside of his progressive constitutional readings. His Justice does not only believe in the concrete nature of the past, but also believes in keeping the Nation's supreme constitutional instrument "unfrozen"⁴⁷. Though not distrustful of the document, "Like every product of fallible human beings, it may be improved, as no doubt it will.⁴⁸" He does not believe, as does Gleeson J, that majority rule democracy is in any way representative, and is thankful for the High Court and Chapter III. Kirby J believes " Weaknesses in the electoral system, disinterest in politics, the nature of political parties, the proliferation of specific interest groups... and structural features of legislative institutions all undermine the assertion that legislative acts are the primary expression of the majority's will.";⁴⁹ it would seem Kirby J's idea of representation, and therefore the foundation of parliamentary supremacy, is on par with the notion mentioned earlier by Viscount Radcliffe.

The rule of law doctrine is an often angry, yet friendly pet of those involved in arguing and spelling out the power granted them by the Constitution; it is also the "fundamental principle of democratic governance."⁵⁰ It is a pet because it can be used in many ways; politicians, lawyers and judges all know it well. The doctrine can be reflected in the ways with which parliament claims supremacy, through the faith of the voting public. Both reflections, the ugly and the encouraging, are reflected in Australian constitutional jurisprudence, depending on the nature and beliefs of the justices, for law is as objective, as everyone is equal before the law. If law was so totally objective, then each High Court justice would always be in agreement; there would always be few dissenters, as a premium science only allows for one cure. Perhaps law is objective, and the justices on the bench subjective; for it is through their minds that the law must flow. Dicey coined the "idea that individual rights have their foundation in the 'ordinary law of the land' from which constitutional law flows".⁵¹ But it is from the High Court bench from which constitutional law flows. And the river is often winding, and rarely in flood. The rule of law doctrine allows for the existence of parliamentary supremacy as much as it allows for judge made law. It is both fallacy and fetter. Australian Constitutional jurisprudence is aware of this, and this is why more and more judges are admitting to making law. The Australian parliament still seems to be kept in check by the High Court, but it depends on who is appointed and who is in power. The next few years will be a challenge for the rule of law doctrine; either it is with the people or against us.

¹ Dicey, A V Introduction to the Law of the Constitution 9th ed Macmillan, London, 1945, pp 39 ' 40
² Lord Hailsham, 1983, as quoted in Campbell E, The Australian Judiciary, Cambridge University Press, 2001, printed in UTS Legal Process and History notes, Autumn 2004
³ Neumann Franz, The Rule of Law, Berg Publishers, 1986, pg 4
⁴ Dickson CJ, Canada, quoted in Campbell E, The Australian Judiciary, Cambridge University Press, 2001, printed in UTS Legal Process and History notes, Autumn 2004
⁵ Re Kirby: ex parte Boilermakers' Society of Australia (1956) 94 CLR 254 at 275, as quoted in Coper, M & Williams, G, Power, Parliament and the People, Federation Press, Sydney, 1997, pg 72
⁶ Kirby J, The Australian Constitution ' A Centenary Assessment (1997), as printed in the Monash University Review [Vol 23, No 2'97],
⁷ The Hon Sir Anthony Mason, "The Judge as Law Maker." (1996), 3 JCULR 1, pg 10
⁸ Kirby J, The Australian Constitution ' A Centenary Assessment (1997), as cited in the Monash University Review [Vol 23, No 2'97], pg 234.
⁹Polites v The Commonwealth (1945) 70 CLR 60
¹⁰Commonwealth v Tasmania (1983) 158 CLR 1
¹¹Dawson J, Richardson v Forestry Commission (1988) 164 CLR at 321, as cited in Hanks P, Kayzer P, & Clark, J, Australian Constitutional Law, 7th ed, LexisNexis Butterworths, Australia, 2004, pg 170
¹² Commonwealth v Tasmania (1983) 158 CLR 1, Hanks P, Kayzer P, & Clark, J, Australian Constitutional Law, 7th ed, LexisNexis Butterworths, Australia, 2004, pg 160
¹³ Australian Communist Part v Commonwealth (1951) 83 CLR 1? at 257'258, as cited in Hanks P, Kayzer P, & Clark, J, Australian Constitutional Law, 7th ed, LexisNexis Butterworths, Australia, 2004, pg 159
¹⁴The Hon Sir Anthony Mason, "The Judge as Law Maker." (1996), 3 JCULR 1, pg 12, printed in printed in UTS Legal Process and History notes, Autumn 2004
¹⁵ The Hon Sir Anthony Mason, "The Judge as Law Maker." (1996), 3 JCULR 1, pg 12, as printed in printed in UTS Legal Process and History notes, Autumn 2004
¹⁶per Mason J, Commonwealth v Tasmania (1983) 158 CLR at 125
¹⁷ The Hon A M Gleeson CJ, in a speech to The Sydney Institute, "Legal Oil and Political Vinegar." (16/03/1999), pg 3
¹⁸ The Hon Sir Anthony Mason, "The Judge as Law Maker." (1996), 3 JCULR 1, pg 13
¹⁹ per Brennan J, Mabo v Queensland (No 2) (1992) 175 CLR 1, as printed in UTS Legal Process and History supplementary materials, Autumn 2004, pg 104
²⁰ The Hon A M Gleeson CJ, in a speech to The Sydney Institute, "Legal Oil and Political Vinegar." (16/03/1999), pg 1
²¹ Sir Anthony Mason, Foreword, in Parkinson P, The Principles of Equity, LBC, Sydney, 1996, v at vi, as quoted by Kirby J, What is it really like to be a Justice of the High Court of Australia?", 19 Sydney law Review 514, (1997), pg 525
²² Viscount Radcliffe, as quoted by Gleeson J, 16th March, Speech to Sydney Institute, Legal Oil and Political Vinegar, pg 4
²³ Katinyeri v Commonwealth, [1998] 195 CLR at 400
²⁴Innes, J ed, Millenium Dilemma, 2nd ed, University of Wollongong, 2000, page 113
²⁵ Botsman, P, The Great Constitutional Swindle, Pluto Press Australia Limited, Annandale, NSW, 2000, p xi
²⁶ Kelly, R, Australian government blackmails East Timor into ratifying oil and gas deal, 12th March 2003, World Socialist Web Site, accessed 13/10/04
²⁷ Kable v DPP (1996) 189 CLR 51
²⁸ per Brennan CJ, Kable v DPP (1996) 189 CLR at 64
²⁹ Dawson J, Kable v DPP (1996) 189 CLR at 73
³⁰ Dawson J, Kable v DPP (1996) 189 CLR at 73
³¹ John Howard's election night victory speech, 9th October, as seen on the ABC
³² see Leiboff, M and Thomas, M Legal Theories in Principle, Lawbook Co, 2004, Chapter 8
³³ Neumann Franz, The Rule of Law, Berg Publishers, 1986, pg 6
³⁴ Neumann Franz, The Rule of Law, Berg Publishers, 1986, pg 11
³⁵ Neumann Franz, The Rule of Law, Berg Publishers, 1986, pg 37
³⁶ Burns v Ransley, (1949) 79 CLR 101 at 116, as cited in Hanks P, Kayzer P, & Clark, J, Australian Constitutional Law, 7th ed, LexisNexis Butterworths, Australia, 2004, pg 478
³⁷ Theophanous v The Herald and Weekly times limited and another F.C. 94/041 Constitutional Law (Cth) ' Defamation (1994) 182 CLR 104 (1994) Aust Torts Reports 81 ' 297
³⁸ Theophanous v The Herald and Weekly times limited and another F.C. 94/041 Constitutional Law (Cth) ' Defamation (1994) 182 CLR 104 (1994) Aust Torts Reports 81 ' 297, at 142 per Mason CJ
³⁹ per Mason CJ, Dean and Gaudron JJ, Davis v Commonwealth, (1988) 166 CLR 79 at 92
⁴⁰ Head, M 'Counter'Terrorism' Laws: A Threat to Political Freedom, Civil Liberties and Constitutional Rights, in Melbourne University Law Review, [2002] MULR 34
⁴¹ Dixon J, Communist Party Case, (1951) 83 CLR at 187, as cited in Head, M 'Counter'Terrorism' Laws: A Threat to Political Freedom, Civil Liberties and Constitutional Rights, in Melbourne University Law Review, [2002] MULR 34
⁴² Brennan and Toohey JJ, Re Tracey; Ex parte Ryan, (1989) 166 CLR at 568, as quoted in Head, M 'Counter'Terrorism' Laws: A Threat to Political Freedom, Civil Liberties and Constitutional Rights, in Melbourne University Law Review, [2002] MULR 34
⁴³ Kirby J,, in an interview published in Innes, J, Millenium Dilemma, 2nd ed, University of Wollongong, 2000, pg 143
⁴⁴ Rose Scott to Dowell O'Reilly, 'Sunday' [circa 1900], O'Reilly Family Papers, Mitchell Library Botsman, P, The Great Constitutional Swindle, Pluto Press Australia Limited, Annandale, NSW, 2000, Chpt II intro
⁴⁵ Botsman, P, The Great Constitutional Swindle, Pluto Press Australia Limited, Annandale, NSW, 2000, p 7
⁴⁶ Botsman, P, The Great Constitutional Swindle, Pluto Press Australia Limited, Annandale, NSW, 2000, p 3
⁴⁷ Kirby J, The Australian Constitution ' A Centenary Assessment (1997), as published in the Monash University Review [Vol 23, No 2'97]
⁴⁸ Kirby J, The Australian Constitution ' A Centenary Assessment (1997), as printed in the Monash University
⁴⁹ Kirby J, The Strengths of the Weakest Arm, Keynote Address, Australian Bar Association Conference, 2nd July 2004
⁵⁰ Lindsay K, and The Hon Mr Justice Young, federal constitutional law, Lawbook Co, Sydney, 2003, pg 14
⁵¹ Dicey, A, V, An Introduction to the Study of the Law of the Constitution, as quoted in Lindsay K, and The Hon Mr Justice Young, federal constitutional law, Lawbook Co, Sydney, 2003, pg 14