Sorby v the Commonwealth

The High Court of Australia considered the dispute between the applicant, Ms. Sorby, and the respondent, the Commonwealth of Australia. Ms. Sorby sought to challenge the validity of certain regulations made under the *Wildlife Protection (Regulation of Exports and Imports) Act 1982* (Cth) which prohibited the export of kangaroos and kangaroo products. The core of the dispute concerned whether the Governor-General had the constitutional power to make such regulations.

The central legal issue before the High Court was whether the Governor-General, acting on the advice of the Executive Council, had the constitutional authority under section 64 of the *Constitution* to make regulations that effectively created criminal offences and imposed penalties, thereby encroaching upon the legislative power of the Parliament. Specifically, the Court had to determine if the *Wildlife Protection (Regulation of Exports and Imports) Act 1982* validly delegated the power to create such prohibitions to the Executive Government.

The Court, by majority, held that the regulations were invalid. The reasoning focused on the separation of powers doctrine inherent in the Australian Constitution. The majority found that section 64 of the *Constitution* did not grant the Governor-General the power to make laws that created criminal offences, as this power was exclusively vested in the Parliament. The Act, in purporting to authorise the Executive to create prohibitions with criminal sanctions, constituted an impermissible delegation of legislative power. The Court distinguished between the power to make regulations for the purpose of carrying into effect an Act of Parliament and the power to create substantive prohibitions and penalties.

Consequently, the High Court made orders declaring the regulations invalid and restraining the Commonwealth from enforcing them.