[Editor’s note: The following article is longer than usual, but it gives the legal history and reasoning that is conspicuously absent from Australian Constitutional Law. Gumshoe is the only place that has ever re-printed it. No legal publication, Bar Association, Law Society or cute ‘legal trade’ magazine would touch it. Most of the bolding is mine.]

by Terry Shulze, retired Barrister-at-Law

This article is a result of a discussion I had with Dee [McLachlan] about a case I did back in 1988-89. I was approached by some people that were challenging the Egg Industry Act. The plaintiff, an egg farmer, had run out of money and now they needed a barrister to continue the case on a spec/pro bono basis. Having lost at the Supreme Court level, the case was now in the Court of Appeal. I was only two years at the Bar and had never appeared in the Supreme Court, let alone the Court of Appeal.

I agreed to take a look at the documents. Almost immediately I was close to puking. The former sleazy/incompetent lawyers had pleaded an alleged constitutional issue that the legislation was not one for the ‘peace, welfare or good government’. The reason for my indigestion was that issue had been decided in the Union Steamship case in the High Court BEFORE those lawyers had filed the pleadings. This case was a dead loser right out of the gate and they had strung him along until his money ran out. The legislation they were challenging was a typical ‘pay to play’ piece of rubbish that Australian Parliaments are so fond of passing.

The more I read, the angrier I got. There were two inquiries (the Gilchist and ACIL Reports), commissioned by the Parliament and paid for by the people of NSW that the legislation wasn’t doing what it purported to be doing – and the Parliament wasn’t doing anything about it.

OK, if I took on this train wreck, what was in it for me? Only that I could stop an injustice and run some legal arguments that Australia desperately needed to hear. As far as compensation, my client’s total contribution was a frozen turkey and four dozen eggs.

So, how could I turn it around at the last minute in the Court of Appeal? Thankfully, I had been educated in Law in America. I had to take a semester of English Constitutional Law before I could take American Constitutional Law. The case was clearly a ‘rational basis’ case. That is – ‘The substance of Law is Reason, a law without a reason doesn’t have the substance of law, and something without substance is called a VOID’.

And thus my journey into the bowels of Australian Constitutional law began.

I listened to my fellow barristers waffle on about the Sovereignty of Parliament and how I couldn’t challenge a Parliamentary law. They also told me that the citizens did not have Fundamental Rights and that after the Colonial Laws Validity Act that those fundamental principles of English Law did not apply. I was like WTF? Why are these guys walking around in wigs and gowns if they aren’t going to practice English Constitutional law?