By Craig Over
On Thursday 14 May 2015 the Supreme Court of Victoria ruled that members of Victoria Police must comply with whatever ‘grooming standards’ the Chief Commissioner has prescribed in the Police Manual. That means Victorians will no longer see bearded police officers roaming the streets.
Kuyken v Chief Commissioner of Police concerns a Leading Senior Constable who, prior to the change in policy donned a goatee beard, since about 2004. Whatever one’s personal tastes, this case raises important questions about the enormous legislative power our state parliaments exercise.
Predictably this is a case concerned with statutory construction and parliamentary intendment, with little discussion about general rights or ideas. Indeed, that aspect of the matter was disposed of in VCAT. As Garde J said in relation to freedom of expression submissions made by Kuyken:
[The tribunal] was not satisfied that a reasonable member of the public would consider that the plaintiff’s goatee imparts any information or ideas such as his desire to be an individual rather than an automaton. The Tribunal was not satisfied that having a goatee imparts any information or ideas, or conveys any meaning at all. The plaintiff had not established on the facts that he had been prevented from imparting any information or ideas.
Further, Garde J said of the Police and Emergency Management Legislation Amendment Act 2012 (Vic) “the power to impose ‘standards of grooming’ extends to a power to change, modify or remove the appearance or presentation of uniform, equipment, hair including facial hair and accessories generally.”
That this case is about statutory construction goes to one of the fundamental facts of our constitutional arrangements; our state legislatures are bodies of plenary power. That is, subject to any limitation found in the Commonwealth Constitution, state parliaments enjoy a general legislative power free of any encumbrance (Union Steamship Company of Australia Pty Ltd v King  HCA 55). It is interesting and rather paradoxical that the very body which exercises such unfettered power over us is also the basis for the absence of any entrenched enforceable rights. The latter point is aptly expressed by Cheryl Saunders:
The Australian system of government places a great deal of weight on the institution of parliament, at least in theory. The role of parliament is the primary justification for the absence of any form of a bill of rights in this country; a feature of our constitutional arrangements which is very distinctive in comparative terms.
Saunders’ subsequent arguments precede to sketch the ways in which the relevance of parliaments in this country are, through political and other processes, being marginalised. Indeed, political theorist Max Weber predicted parliamentary institutions being sidelined in favour of bureaucratic managerialism; a class entirely outside the democratic process (Glassman and Murvar, 1984). It appears this trend is encouraged by our constitutional conception of plenary parliamentary power.
That this regulation only applies to Victoria Police misses the point. As I have sought to demonstrate, the conception of parliamentary power within our constitutional arrangements means that the Victorian Parliament can legislate in virtually any area, only subject to Commonwealth legislative power, which is also said to be plenary. Touring any area of Melbourne, particularly in the inner north, one can easily conclude that Melbournians take their facial hair very seriously. Perhaps we will see more discussion on this matter in coming weeks.
Craig Over is currently completing a Bachelor of Laws at La Trobe University and he is the editorial assistant of the Law and Justice Blog.
Glassman, Ronald and Murvar, Vatro (eds), Max Weber’s Political Sociology: A Pessimistic Vision of a Rationalized World (Greenwood Press, 1984)
Craig Over, ‘No one’s beard is safe!’, Law and Justice, 2Sts May 2015 (La Trobe Law School Blog, http://law.blogs.latrobe.edu.au/)