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The High Court And Constitutional Interpretation Notes

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The High Court and Constitutional Interpretation: A Preengineers The division of legislative power

* The Australian constitution assigns to the Commonwealth Parliament a specified list of powers in the placita of s 51 o

The residual powers not assigned are left to the States - much like in the United Stateso

Contrast the approach of Canada which gives the Dominion Parliament residuals powers not exclusively assigned to the Provinces and the Constitution of India to the national Parliament

Furthermore the Australian arrangement is one of concurrent powers - even where the Commonwealth has a grant of power the States can legislate but in the event of a conflict the Commonwealth is to prevail (s 109 of the Constitution)There are exceptions as listed in the Constitution - e.g. the power to levy excise duties are exclusively the power of the CommonwealthInitially it was thought that concurrency would imply that each level of government could bind one another - but the HCA denied this possibility due to the "implied immunity of instrumentalities" doctrineHowever, after the Engineer's Case this idea was swept away

Implied immunity of instrumentalities

* This doctrine asserted that if two levels of government occupied the same geographical territory then they are immune from one another's laws; rather than emanating from the Constitution this was said to be necessarily implied in the very idea of Federalism D'Emden v Pedder (1904) 1 CLR 91 Facts: D'Emden, the CTH Deputy PMG for TAS gave a receipt for his CTH salary to a CTH office without paying stamp duty required by TAS law. It was held that the State law couldn't apply because CTH officers were necessarily immune from State laws. Griffith CJ (for the Court):

*

Each of the powers of the CTH and State is, within the ambit of its authority as a sovereign state, subject only to the restrictions imposed by the Imperial connection and to the provisions of the Constitution - express or necessarily implied

*

The CTH has with respect to s 51 sovereign power subject to such limitations - but

the idea of sovereignty subject to extrinsic terms is contradictory

*

o

Hence it is the essence of the Constitution that the CTH is entitled, within its authority, to exercise its legislative and executive powers in absolute freedom without any interference except as in the Constitution

o

Hence if a State attempts to give its legislative/executive authority an operation which would fetter/control/interfere with the free exercise of the legislative/executive power of the CTH, the attempt, unless expressly authorized by the Constitution, is invalid and inoperative

A similar argument was applied by Griffith CJ in Deakin v Webb (1904) 1 CLR 585 to hold that a CTH cabinet Minister was not liable to State income tax. The argument had added force in AU, his honour ruled, because: o

Income taxes in several states are unequal and are imposed at State discretion; hence to give effect to provisions of federal laws regulating officer salaries it would be necessary to make special provision to adjust their incomes when transferred from on State to another.

o

State taxation of federal salaries is also objectionable also because:It diminishes the recompense allotted by the CTH to its officersIt interferes with the freedom of action of the CTH in the transfer of its officers from state to state

*

In both of these cases Griffith CJ relied heavily on American Authority

*

In a different context in the Municipal Rates Case, O' Connor J gave a more fuller explanation of the "implied immunities" doctrine o

In his judgement he adverted to the circumstances of the convention and the simultaneous development of US law at the time which 'must be taken' to have been in the mind of the Convention. The US courts rested their reasoning on principles of the Constitution and what was necessarily involved in granting sovereign powers*

He ruled "From the very nature of the Constitution, and the relation of States and Commonwealth, in the distribution of powers, it became necessary to provide that the sovereignty of each within its sphere should be absolute, and that no conflict of authority within the same sphere should be possible"

The CB writers refer to the fact that the Privy Council ruled contrary to the doctrine in Webb v Outtrim (a decision heard bypassing the HCA) but later in Baxter v Comm. Of Tax the HCA ruled they spoke without jurisdiction and hence confirmed the implied immunities doctrine

*

o

In an alternative basis in Baxter (the case involving the application of a state income tax to a CTH customers officer) Isaacs J ruled that the State income tax didn't interfere with the CTH's constitutional function but merely required the officer to pay his just share for the burden of his fellow citizens in return for the protection the state offers him

o

The problem was eventually fixed by (the constitutionally valid) Commonwealth Salaries Act which gave power to states to legislate (if tax immunity was a CTH privilege they could give it up - Chaplin's Case)

The reciprocal idea, that State agencies would be shielded from CTH laws was hinted at earlier by Griffith CJ and in the Railway Servants' Case was held to be so in the context of the Commonwealth Conciliation and Arbitration Act

Federal Amalgamated Government Railway and Tramway Service Association v New South Wales Railway Traffic Employees Association (Railway Servants' Case) (1906) 4 CLR 488

In argument Higgins KC (then A-G) put to the Court that the immunities doctrine did not extend to instrumentalities used for the purpose of commerce. Griffith CJ, however, disagreed on the basis that State railways were always recognized as a function of government.

Griffith CJ in his judgement placed emphasis on the many references to State railways in the Constitution

*

His honour emphasised that the root of the immunity of instrumentalities doctrine stemmed from the 'interference or control' that one level of government exercises over the other o

*

Whether or not the exercise of the power would be beneficial was an irrelevant question for parliament

In addressing the argument that the State Railways was not an instrumentality his honour emphasised it's governmental character threefold: o

That the 'execution or administration of the laws of the state in the strictest sense is a governmental function'

o

That construction and maintenance of roads as a means of communications (according to ancient and modern authority) is a function of government - and railways are a form of highway subject to certain kinds of regulation

o

When the Constitution was adopted - construction of railways was generally regarded as a governmental function

Hence it was held that the doctrine was sufficient to exclude the power to regulate

conciliation and arbitration contained in s 51(xxxv) to State railways

*

After Isaacs and Higgins KC were admitted to the Bench a series of dissents on the doctrine emerged and awkward concessions were made

Attorney-General of NSW v Collector of Customs for NSW (Steel Rails Case) (1908) 5 CLR 818 Facts: The CTH imported a shipment of wire netting and lengths of steel railway from England - the CTH customs duty on both were disputed on two grounds - the inapplicability of the CTH customs Act to the Crown and the implied immunities doctrine - both failed. In this case Griffith CJ reasoned that the doctrine depended on implication and therefore could not override the express words of the constitution. Griffith CJ:

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If a power conferred upon the Commonwealth in express terms is of such a nature that its effective exercise manifestly involves control of some State government operation - the doctrine has no application

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Laws with respect to trade and commerce (like quarantine, weights and measures) necessarily involve such control - taxation by customs is a mode of regulating trade

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It was hence the legislature's intention that the right of States to import goods is subject to CTH control

Barton J pointed out that the power to impose customs duties was expressly exclusive by s 90 - and though s 51(i) [trade and commerce] was not - it was inherently exclusive in the sense that no one State can speak for Australia as a whole. Implied in this reasoning is where the CTH has exclusive power the doctrine does not apply - only when there is concurrent powers does it apply.

R v Sutton (Wire Netting Case) (1908) 5 CLR 789 Facts: As above Isaacs J (in dissent):

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In distributing powers the Constitution regards the CTH and States as distinct and separate organisms for several function - this was necessary for governments operating in the same area on the same people.

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But no doctrine of law can, if inconsistent with the dominant purpose of the Federal Constitution can be allowed to prevail.

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Hence any theory which permits States to claim an exemption from federal law regulating matters of national concern which could frustrate the legislation or render it ineffective is inadmissible.

*

The main inroads to the immunity doctrine flowed from Higgins' argument in the Railway Servants Case - even though it was rejected, Griffith CJ's suggestion that railways were a governmental function provided a foothold for a change in the Engine Driver's Case o

Facts: The case concerned the scope of the federal arbitration system (again) - the Melbourne City Council used "land engines" in connection with the supply of electricity, the sale of manure etc. Assuming the instrumentalities doctrine it should have been exempt from any Commonwealth interference

o

The distinction between commercial and non-commercial that Higgins sought to establish was accepted in this case

*

This trend was carried further in the Municipalities Case where it was held that for the purpose of industrial arbitration, municipal councils had no immunity from commonwealth interference in the making and control of lighting for public streets

*

The CB makes some reference to the quirks of Higgins' recollection of challenging the doctrine in the Engineer's Case- mostly irrelevant

Reserved State Powers

* This doctrine was directed to the interpretation of Commonwealth grants of legislative power. The idea was that the Commonwealth impliedly 'reserved' states traditional areas of lawmaking power therefore Commonwealth lawmaking power must be narrowly construed to not encroach on these traditional powers of the state R v Barger (1908) 6 CLR 41 Facts: s 2 of the Excise Tariff Act imposed excise on various agricultural impliments - it provided that the excise didn't apply to goods manufactured under conditions where remuneration of labour was declared as 'fair and reasonable' by both houses of parliament or where in accordance with the CTH CAA Act Held: Section 2 cannot be supported by s 51(ii of the Constitution - the power to pass such an act must be vested either in the Commonwealth or states Griffith CJ, Barton and O' Connor JJ began their judgement by noting that the Constitution's scheme was to confer definite powers on the CTH and to reserve to the states all powers not expressly conferred.

In this matter it wasn't contested that labour conditions are a State affair except insofar as it can fit into s 51.

*

A state legislature can clearly regulate conditions of labour employed in manufacturing agricultural implements o

In doing so - it could readily impose a pecuniary burden on everyone who did not conform to them

o

Such a burden need not be levied in the form of an excise - his honour went on to conjecture a number of possible ways this could be done (penalty for non-conforming, license fees etc.)Hence the exclusive power of the Commonwealth to impose excise duties cannot be taken as depriving states of the exclusive power to make such enactments

*

But if the Act is not imposing an excise duty, then what is it doing? We think it regulates conditions of manufacture of agricultural implements, rather than being an exercise of the taxation power

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Isaacs and Higgins dissented using an analogy to the distribution of a will - one can't construe a will by determining the scope of the residuary legacy and then determine the content of specific bequests. o

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The specific bequest must be dealt with first - similarly the powers in the Constitution must be dealt with first before analysing the residual

The most remarkable part of the judgement was the sleight of hand from exclusive commonwealth powers as to excise and exclusive power of the states as to labour conditions o

The CB writers conjecture a number of possibilities where such an exclusive power such as this could come from

*

See also Union Label Case - a "workers" trade mark "made with union labour" was not a "trade mark" within the power conferred by s 51(xviii) since those words have to be confined to their meaning as at 1990

*

See also Huddart Parker - Commonwealth could not, nunder its corporation power , invade the field of State law as to domestic trade

The Engineers Case Amalgamated Society of Engineers v Adelaide Steamship Co Ltd (Engineer's Case) (1920) 28 CLR 129 Facts: The case arose from a claim by a union of engineers in the CTH Court of CAA for an award applying to 843 employers (incl. 3 government ones). The question was whether the CTH law made under the CAA power (s 51(xxxv)) could authorize the making of an award binding these 3.

Knox CJ, Isaacs, Rich and Starke JJ: The first portion of the judgement emphasises the need to hark back to settled rules of construction rather than any conception of implication by 'necessity' which varies according to a standard personal to every judge.

Their honours criticized the rule in D'Emden v Pedder as being destructive of, rather than supportive of states. Their logic was that - authorities set up by States that claimed to be an executive authority and which, if exempt from Commonwealth legislation, DOES fetter the free exercise of the legislative power of the CTH under s 51(xxxv) UNLESS:The placitum is not as complete as its words in their natural meaning indicateSince s 107 applies to State concurrent powers, as well as exclusive powers - every CTH legislative power, however complete in itself, is subject to the unrestricted operation of every State Act

Their honours criticized Griffith CJ's approach based on the 'intention' to give a sphere of government power - but this 'intention' was discerned in a vague conception of the 'spirit' of the document. They disagreed with this method of interpretation as it does not provide a secure foundation for CTH or State Action and would lead to more and more divergences and inconsistencies.

Their honours further went to criticize the application of American cases to the Australian context - distinguishing it on two primary grounds, which highlight its uniqueness to the Australian contextThe common and indivisible Sovereignty of all parts of the British Empire and;The institution of responsible government by which the Executive is a creature of the Legislature

Their honours then went on to discuss the settled rules of construction:The Golden Rule - judges do not stray into interpreting the 'desire' of a country - their province is one of construing the language finally expressed. The only consideration is the state of the law when the statute was passed and the "light to be got" by reading the statute

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