[23]
The effect on other enactments is dealt with in s 4 which provides as follows:
4
Other enactments not affected
No court shall, in relation to any enactment (whether passed or made
before or after the commencement of this Bill of Rights),—
(a)
hold any provision of the enactment to be impliedly repealed
or revoked, or to be in any way invalid or ineffective; or
(b)
decline to apply any provision of the enactment—
by reason only that the provision is inconsistent with any provision of
this Bill of Rights.
[24]
Section 5 states that, subject to s 4, the rights and freedoms in the Bill of Rights
“may be subject only to such reasonable limits prescribed by law as can be
demonstrably justified in a free and democratic society”. Section 6 is a direction to
prefer a Bill of Rights consistent meaning whenever possible. Finally, s 7 provides for
the Attorney-General to draw to the attention of the House of Representatives any
provision in a Bill, on its introduction, which appears inconsistent with the Bill of
Rights.
Does the High Court have power to make a declaration of inconsistency?
The submissions
[25]
The submissions for the Attorney-General in support of the proposition that the
High Court does not have power to make a formal declaration focus on the language
of the Bill of Rights and on its legislative history and on the nature of the judicial
function.
In developing these submissions the argument is made, first, that in
preserving parliamentary sovereignty s 4 of the Bill of Rights contemplates
enactments the courts may consider are inconsistent with the rights and freedoms in
the Bill of Rights. It is accordingly not correct to treat that situation as a breach of the
Bill of Rights requiring remedy. Second, it is contended that the making of a
declaration is an advisory opinion and so outside of the judicial function.
[26]
The respondents support the judgments in the Courts below. Mr Taylor also
emphasises that there is no other remedy available for the respondents. Mr Francois
for the other respondents also submits that the arguments for the Attorney-General