Sydney Law Review

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In 1920 a unanimous High Court held that ‘[w]here a thing is declared illegal, whatever may be the object of the prohibition, the thing declared illegal is of no force or validity, and everything dependent on that thing…shares the fate of the thing prohibited’.1 That holding invoked the ‘void ab initio’ doctrine in relation to unconstitutional legislation and the acts of government predicated on such legislation. In that context, the void ab initio doctrine holds that:

[a] pretended law made in excess of power is not and never has been a law at all. Anybody in the country is entitled to disregard it. Naturally he will feel safer if he has a decision of a court in his favour –– but such a decision is not an element which produces invalidity in any law. The law is not valid until a court pronounces against it –– and thereafter invalid. If it is beyond power it is invalid ab initio.

The void ab initio doctrine sets out the orthodox view of the consequences of constitutional invalidity.3

Despite the theoretical appeal of the void ab initio doctrine, it is clear that it can cause immense inconvenience, especially in the context of an unconstitutional statute that has facilitated a vast number of governmental acts and private transactions. When such a statute is declared invalid, the void ab initio doctrine holds that all public and private acts performed in reliance on that statute have no legal foundation. In a pen-stroke, governments and private individuals can be exposed to potentially enormous liability. Indeed, this may be a context in which it is timely to recall that ‘a written constitution is not a suicide pact’

3The doctrine has been recently acknowledged by the Court in Haskins v Commonwealth (2011) 244 CLR 22, 42 (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ quoting Norton v Shelby County, (1886) 118 US 425, 442 (Field J)) (‘Haskins’) ‘an unconstitutional act is not a law; it confers no rights; it imposes no duties; it affords no protection; it creates no offices; it is, in legal contemplation, as inoperative as though it had never been passed.’

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