What to do when someone throws the Constitution at you

It can happen to any litigator.  Show up to court, ready to argue your (seemingly non-constitutional) case, only to be faced with a constitutional argument and the resultant scurrying around as the parties try to ascertain and meet the notice requirements under the Judiciary Act 1903 (Cth).

The procedure isn’t complicated, but it has been known to catch parties unaware.  This is because constitutional arguments can pop up in many types of litigation and often after proceedings have commenced.  This means that lawyers who would not otherwise practice in these areas may need to quickly get their head around the procedure and its rationale.

Here’s a quick how-to guide.

Section 78B of the Judiciary Act requires a notice to be sent to all nine Attorneys-General whenever any court proceeding ‘involves a matter arising under the Constitution or its interpretation’.  Don’t forget the Territories!  See our previous post on how to serve the Victorian Attorney-General.  The other jurisdictions have similar agreements with their government solicitors.

The court ‘cannot proceed’ until it is satisfied that this procedure has been followed.  However, s 78B(2)(c) enables a court to continue to hear evidence and argument on matters that are severable from the constitutional question.  And s 78B(5) provides that a court may proceed immediately to hear urgent interlocutory proceedings where the court thinks it necessary to do so. 

If the constitutional point is frivolous or unarguable, the Court can determine that s 78B does not apply.  The matter must ‘really and substantially’ involve a matter arising under the Constitution to invoke s 78B, meaning the argument has to relate to a live issue in the proceeding and has to have some merit.

The court does not need to wait for a response from all Attorneys-General before proceeding.  It is sufficient if steps have been taken that ‘could reasonably be expected to cause the matters to be notified to be brought to the attention of that Attorney-General’.

The point of the s 78B procedure is to make sure that the Commonwealth and the various States and Territories have the opportunity to be heard before any court decision about the Constitution.  This is because their interests can be affected by decisions on constitutional law, particularly ones decided by the High Court.  When an Attorney-General intervenes, the courts also get the benefit of the legal skills of the various Solicitors-General (who generally represent their respective Attorneys-General in constitutional proceedings, at least in the High Court).

The obligation to issue notices applies in every court in Australia, from the High Court to the Magistrates Court.  VCAT does not have power to determine questions arising under the Constitution and thus the 78B question should not arise in that forum.

The courts have introduced Rules to regulate procedural issues arising from the giving of s 78B notices – see Part 5 of the High Court Rules, Division 8.2 of the Federal Court Rules, Order 19 of the Supreme, County and Magistrates Court Rules.  Note that in the federal courts, the party that raised the argument must prepare the notice, whereas the State Rules permit a court to order a different party prepare the notice.  Victorian courts have been known to order that the State party prepare a notice outlining a constitutional argument raised by another party, which can be very difficult if that party is unable to clearly enunciate that argument.

If you are in the Victorian Government and require advice on constitutional litigation, please contact:

Rachel Amamoo
Managing Principal Solicitor
t 8684 0899
rachel.amamoo@vgso.vic.gov.au