FOUNDATIONS OF AUSTRALIAN FEDERALISM AND THE
ROLE OF JUDICIAL REVIEW
STEPHEN GAGELER*
The High Court . . . is properly termed the "keystone of the federal arch".
- Alfred Deakin 1
I take it as an incontrovertible axiom that responsible government is to be the keystone
of this federal arch.
- Isaac Isaacs 2
INTRODUCTION
Federalism inevitably involves a dynamic of centripetal and centrifugal
forces: 3 a tension between competing tendencies of centralization and decentralization. Throughout the greater part of the history of the Commonwealth of
Australia, the underlying assumption of scholars and practitioners of constitutional law has been that these forces, if left unchecked, would tend towards
the impairment or destruction of the federal system through implosion or
explosion. The maintenance of the "federal balance" has been seen to be the
province of the High Court. The Australian experience has thus often been said
to exhibit one of the characteristics identified by Albert Venn Dicey more than a
century ago as the essential indicia of federalism. "Federalism", wrote Dicey,
means "legalism", which he defined in part to mean "the predominance of the
judiciary in the constitution". 4
As a description of contemporary Australian constitutional law, however,
Dicey's statement is apt to be misleading. The publicity now being given to the
role of the High Court in constitutional adjudication and its discovery as a
"political" institution, 5 have tended to obscure a major consequence of its recent
* B Ec, LL B (Hons) (ANU); LL M (Harvard). I wish to thank Mr Geoffrey Lindell, Dr James
Thomson and Dr Gary Rumble for their comments on the draft of this article. All errors and
omissions are entirely my own.
1 Commonwealth Parliamentary Debates Vol 8, 10967 (1902); quoted in Bennett, Keystone of the
Federal Arch (1980) iii.
2 Official Report of the National Australasian Convention Debates, Adelaide, March 22- May 5,
1897 (1897) 169.
3 Menzies, Central Power in the Australian Commonwealth: An Examination of the Growth of
Commonwealth Power in the Austraian Federation (1967) 2-3.
4 Dicey, The Law of the Constitution (lOth ed 1960) 175. References to Dicey's use of the term
"legalism" are legion in writings on Australian Constitutional Law. Eg Zines, The High Court and
the Constitution (2nd ed 1987) ix; Wynes, Legislative, Executive and Judicial Powers in Australia
(4th ed 1970) 3; Else-Mitchell (ed), Essays on the Australian Constitution (2nd ed 1961) xxix;
Bailey, "The Working of the Australian Constitution Since Federation" in Portus (ed), Studies in the
Australian Constitution (1933) Ch II; Clark, Studies in Australian Constitutional Law (2nd ed 1905)
5; Clark, "The Supremacy of the Judiciary under the Constitution of the United States, and under the
Constitution of the Commonwealth of Australia" (1903) 17 Harv L Rev I. The other part of Dicey's
definition of "legalism", "the prevalence of a spirit of legality among the people", has always been of
doubtful applicability to Australia. The Constitutional Commission has commented that the "level of
awareness of our Constitution among Australians has been abysmally low": Constitutional Commission Media Release December 31 1987.
5 See Galligan, Politics of the High Court (1987); Galligan, "The 'Dams' Case: A Political
Analysis" in Sornarajah (ed), The South West Dam Dispute: the Legal and Political Issues (1983)
102; Galligan, "Legitimating Judicial Review: The Politics of Legalism" (1981) 8 Journal of
Australian Studies 33.
1987]
Foundations of Australian Federalism -Judicial Review
163
decisions. By broadening its interpretation of Commonwealth legislative power6
and by loosening the constraints on government action affecting inter-state trade
imposed by s 92/ the High Court has displayed an increasing tendency to leave
the final determination of the "federal balance" to the political and not the legal
process. Moreover, the political process is increasingly proving itself to be a
means through which the centripetal and centrifugal forces of federalism tend
towards equilibrium.
This theme strikes at the root of the standard lawyer's conception of the role of
the High Court in Australian federalism. If it is not the Court, through legalism,
but the political process, through the ordinary workings of government, which is
emerging as the foundation upon which the contemporary federal order is based,
then some re-assessment of the position of the High Court within Australian
federalism is called for.
This article does not seek to support empirically the observation that a federal
political equilibrium exists in Australia, nor to justify the level at which
equilibrium may be reached. Although its detailed analysis awaits further study,
the existence of a political equilibrium within the federal system has become the
subject of increasing comment. 8 The question of the efficacy of its level at any
given time is inseparable from the wider question of the functional justification
for federalism and is an issue which has traditionally caused divisions along
party-political lines. 9
This article rather focuses on the position of the High Court and the institution
of judicial review under the Australian Constitution and presents an historical
and jurisprudential argument for its re-orientation. The argument is that, in the
6 Eg Constitution, s 51 (xx) (corporations power); Actors & Announcers Equity v Fontana Films
Pty Ltd (1982) ISO CLR 169; Fencott v Muller (1983) 142 CLR 570; Commonwealth v Tasmania
(the Tasmanian Dam case) (1983) 158 CLR I; Richardson v The Forestry Commission 0988) 77
ALR 237; Constitution. s 51 (xxix) (external affairs power); Koowarta v Bjelke-Petersen (1982) 153
CLR 168; the Tasmanian Dam case. Constitutions 51 (xxxv) (conciliation and arbitration power);
Reg v Coldham: ex parte Australian Social Welfare Union (1983) 153 CLR 297; Reg v Ludeke; ex
parte Queensland Electricity Commission (1985) 159 CLR 178; Re Lee; ex parte Harper (1986) 160
CLR 430. The cases on s 51 (xxi) (marriage power) and (xxii) (divorce and matrimonial cau~s
power) constitute an exception to this trend: In the Marriage of Cormick (1984) 156 CLR 170; Reg v
Cook; ex parte C (1985) 156 CLR 249; Re F; ex parte F (1986) 161 CLR 438.
7 Constitution s 92: "On the imposition of uniform duties of customs, trade, commerce, and
intercourse among the states ... shall be absolutely free." See especially, David Miller vTCN
Channel Nine (1986) 161 CLR 556, 570-571, 617-618. See now Cole v Whitfield (1988) 78 ALR
42, decided after the preparation of the text of this article.
&rite pioneering work was Partridge, "The Politics of Federalism" in Sawer (ed), Federalism: An
Australian Jubilee Study (1952) 174. See now: Scott, "Australian Federalism Renewed" in Patience
and Scott (eds), Australian Federalism: Future Tense (1983) I-ll; Sharman, "The Australian Senate
as a States House" in Jaensch (ed) The Politics of "New Federalism" (1977) 64-75; Holmes and
Sharman, The Australian Federal System (1977); Holmes "The Australian Federal Process" in Mayer
and Nelson (eds), Australian Politics: A Fourth Reader (1976) 327-346. In a speech at the dinner to
mark the publication of Volume 14 Nos 3 and 4 of the Federal Law Review in Canberra on April 24
1985, the Secretary of the Commonwealth Attorney-General's Department, Mr Pat Brazil, said: "I
believe that the 'federal balance' under the Australian Constitution will continue to be, as it has
always been, heavily dependent upon the political processes and forces within Australia at the
·
relevant time."
9 See generally: Head, ''The Political Crisis of Australian Federalism" in Patience and Scott (eds),
supra n 8, 75-79, 81-82. Maddox, "The Federal Environment of Australian Politics" in Hanley and
Cooper (eds) Man and the Austraian Environment ( 1982) 295-301. For the survey of the literature on
arguments for and against the maintenance of the federal system in Australia, see McMillan, Evans
and Storey (eds), Australia's Constitution: Time for Change? (1983) 138-140.
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[VOLUME 17
institution of responsible government, the political process is recognized in the
Australian Constitution as a mechanism of constitutional constraint capable of
operating in relation to issues of federalism, and that it is to the primacy of the
political process that the institution of judicial review is most appropriately
adapted.
This argument is developed in several stages. Part I identifies potentially
competing notions of constitutionalism in the Australian Constitution: one based
on legalism and the separation of powers and the other based on the primacy of
the political process. Part II argues that the "strict and complete legalism", often
advocated by the High Court in the past and still clung to in a residuary way, is of
its nature incapable of generating satisfactory outcomes to constitutional disputes. Part III examines the Engineers' case 10 and subsequent developments in
the interpretation of Commonwealth legislative powers in the light of the
perception of responsible government as a mechanism of constitutional con. straint. It also surveys significant developments in American constitutional
thought. Finally, Part IV advocates a role for the judiciary which is one of
policing rather than containing the political process.
1 COMPETING CONSTITUTIONALISMS
The Australian Constitution embodies two constitutional traditions. While
modelled partly on the Constitution of the United States, it incorporates the
British notion of responsible government. That these traditions are in tension is
widely recognized and has been portrayed as a source of the constitutional crisis
of 1975. 11 The significance of this tension for the role of the judiciary in the
interpretation of Commonwealth and State legislative powers, however, has been
generally ignored by legal scholars. Its appreciation requires some explanation of
the history and character of the two traditions.
The Constitution of the United States, formed in the period of post-revolutionary unrest which followed the American War of Independence, was conceived in
an atmosphere of fear: fear of despotism by a ruling elite unresponsive to the
needs of the people - the experience which had led to war with Britain - and
also fear of majoritarian tyranny and factionalism within popularly elected local
assemblies- the immediate post-war experience of a number of the liberated
American colonies under the loosely formed Articles of Confederation. 12 Writing
10 Amalgamated Society of Engineers v Adelaide Steamship Co Ltd (the. Engineers' case) ( 1920) 28
CLR 129.
11 Howard and Saunders, "The Blocking of the Budget and Dismissal of the Government" in Evans
(ed) Labor and the Constitution 1972-1975 (1977) 251-287. The authors state:
The fundamental cause of the constitutional troubles which came upon Australia in 1975 lies in
the self-contradictory character of our machinery of government. The framers of the Australian
Constitution wished both to create a federal structure and to preserve parliamentary government
of the British kind. These two aims were, and are, incompatible.
See also Thompson, "The 'Washminster' Mutation" in Weller and Jaensch (eds), Responsible
Government in Australia ( 1980) 32-40; Mallory, "Politics by Other Means: the Courts and the
Westminster Model in Australia" ( 1979) 17 The Journal of Commonwealth and Comparative Politics
3. On a more general level see Moffat, "Philosophical Foundations of the Australian Constitutional
Tradition" (1965-1967) 5 Syd UL Rev 59. Contrast Reg v Kirby: ex parte Boilermakers' Society of
Australia (1956) 94 CLR 254, 275.
12 See generally Wood, The Creation of the American Republic 1776-1787 (1969); Mcilwain,
Constitutionalism and the Changing World (1939) 245-6.
1987]
Foundations of Australian Federalism -Judicial Review
165
his famous defence of the Constitution in Federalist No 10, 13 James Madison
identified "the unsteadiness and injustice with which a factious spirit has tainted
our public administration" as a principal cause of the "prevailing and increasing
distrust of public engagements and alarm for private rights which are echoed
from one end of the continent to the other. " 14 The intention of the framers was to
establish institutions to contain these tendencies and to ensure that government
would act to promote the general welfare. "To secure the public good and private
rights against the danger" of a majority "united and actuated by some common
impulse of passion, or of interest, adverse to the rights of other citizens, or to the
permanent and aggregate interests of the community" while "at the same time
preserving the spirit and form of popular government", wrote Madison, "is . . .
the great object to which our inquiries are directed." 15 To this end, the framers,
drawing on the currents of eighteenth century political philosophy, 16 enshrined
three basic mechanisms in the Constitution which they established in the name of
"the People" and prescribed as the "supreme Law of the Land." 17
The first was representative government. Whereas democracies, relying on the
direct participation of citizens in government, had "ever been spectacles of
turbulence and contention", the system of republican government established by
the Constitution was to involve "the delegation of the government . . . to a small
number of citizens elected by the rest." 18 This would make it possible "to refine
and enlarge the public views by passing them through the medium of a chosen
body of citizens" whose wisdom and virtue would lead them to be least likely to
be motivated by factional or sectarian considerations. 19 By increasing the number
of citizens brought within the compass of a national republican government, the
potential for factionalism would be further reduced. Not only would the
representatives of the nation be more likely to hold "enlightened views and
virtuous sentiments" than those of the states comprising it, but "greater security"
would be "afforded by a greater variety of parties, against the event of any one
party being able to outnumber and oppress the rest. " 20
The second mechanism, the separation of governmental powers, was built
upon the first. In Federalist No 51, 21 Madison referred to the "great difficulty" in
"framing a government which is to be administered by men over men": "you
must first enable the government to control the governed; and in the next place
oblige it to control itself. ' 722 Although "dependence on the people" was "the
primary control on the government", "experience" had taught "the necessity of
auxiliary precautions." Those precautions lay in the establishment of separate
organs of government each with the power to check the other. "Ambition must be
made to counteract ambition" and so to supply "by opposite and rival interests,
Hamilton, Madison and Jay, The Federalist Papers (New American Library ed, 1961) 77-84.
Ibid 77-78.
15 Ibid 78, 80.
16 See generally, Wood, supra n 12; Bailyn, The Ideological Origins of the Ameican Revolution
(1967); Vile, Constitutionalism and the Separation of Powers (1967) Ch VI.
17 United States' Constitution, Preamble and Art VI.
18 Madison, Federalist No 10, supra n 13, 81-82.
19 Ibid 82.
20 Ibid 83-84.
21 Hamilton, Madison and Jay, supra n 13, 320-325.
22 Ibid 322.
13
14
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[VOLUME 17
the defect of better motives. " 23 The aspiration was thus towards a form of
"balanced government" in the classical eighteenth century sense of checking
"interest with interest, class with class, faction with faction, and one branch of
government with another in a harmonious system of mutual frustration. " 24
In a federated republic, the separation of government powers could occur on
two planes. On a vertical plane, the allocation of functions between federal and
state governments would ensure that no one government would be in a position
completely to dominate its citizens. On a horizontal plane, the diffusion of
governmental power among legislature, executive and judiciary would further
moderate its exercise. Madison explained:
In the compound republic of America, the power surrendered by the people is first
divided between two distinct governments, and then the portion allotted to each
subdivided among distinct and separate departments. Hence a double security arises
to the rights of the people. The different governments will control each other, at the
same time each will be controlled by itself. 25
Because of its peculiar capacity to predominate even in a divided system, the
legislature was to be further subdivided and its different branches rendered "by
different modes of election and different principles of action, as little connected
with each other as the nature of their common functions and their common
dependence on society will admit. " 26 At the federal level, there was to be a
bicameral legislature, consisting of a House of Representatives and a Senate
exercising co-ordinate powers. Only members of the House were to be chosen by
"the People". 27 Senators were to be chosen by the legislatures of the States, 28 as
much to filter popular passions as to ensure regional representation. Finally, the
President, in whom was to vest the executive power of the United States and who
himself was to be elected through the indirect means of an electoral college, was
to be given power to veto legislation. 29
The third mechanism was judicial review, according to which the federal
judiciary was to have power to declare void any act of the legislature or executive
in contravention of the Constitution. Although nowhere explicit in the text of the
Constitution, judicial review was central to the scheme of the framers and was
emphatically, if controversially, asserted in the early years of the operation of the
Supreme Court in the opinion of Chief Justice Marshall in Marbury v Madison. 30
While not a necessary corollary of representative government and the separation
of powers, in the atmosphere which gave rise to those mechanisms it seemed to
/d.
Hofstadter, "The Founding Fathers: An Age of Realism" in Horwitz (ed), The Moral
Foundations of the American Republic (2nd ed 1979) 62-74, 67. But compare recent scholarship
attempting to emphasise the more deliberative aspects of the federalist scheme: Sunstein, "Interest
Groups in American Public Law" ( 1985) 38 Stan L Rev 29; Michelman, "Foreword: Traces of SelfGovernment" (1986) 100 Harv L Rev 4.
25 Hamilton, Madison and Jay, supra n 13, 323.
26 Ibid 322.
27 United States' Constitution, Art I, s 2.
28 Ibid, Art I, s 3.
29 Ibid, Art II.
30 I Cranch 137 (1803).
23
24
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Foundations of Australian Federalism -Judicial Review
167
follow naturally enough from them. 31 If the separate departments of government
were established by the Constitution merely as representatives of "the People", it
followed that the powers conferred upon them by the Constitution could only be
delegated powers. The Constitution, expressing the will of "the People", was to
be fundamental law. It was not to be supposed, in the words of Alexander
Hamilton in Federalist No 78, 32 to be intended to "enable the representatives of
the people to substitute their will to that of their constituents." 33 That the
judiciary was the appropriate department of government to act as interpreter of
the Constitution seemed almost too plain to be contested. From the very nature of
its functions, the judiciary was necessarily the department "least dangerous to the
political rights of the Constitution", having "neither FORCE nor WILL but
merely judgment. " 34 In any case in which the validity of a legislative or
executive act was called into question, its sole function was to lay the Act beside
the text of the Constitution and, in a case of conflict, to prefer "the intention of
the people to the intention of their agents. " 35
To the modem Australian observer, two features of this pattern emerge as
particularly significant. The first is that under the Constitution of the United
States federalism did not beget legalism. Federalism and judicial review were
related mechanisms which arose out of a particular conception of the political
process. Government was inherently dangerous, and the involvement of ordinary
people in politics was especially to be feared. In the name of "the People" the
government was to be removed from the people and once removed it was to be
divided within itself. "In questions of power," wrote Thomas Jefferson, "let no
more be heard of confidence in man, but bind him down from mischief by the
chains of the Constitution. " 36 The second is that, in line with the justification for
judicial review repeatedly asserted in the Australian High Court, judicial review
was seen as the appropriate method of policing the separated organs of
government precisely because of its legalism. Of its nature, judicial review was
fundamentally different from politics. The "judgment" of the judiciary consisted
simply in its application of the predetermined standards of the Constitution to the
case before it. Were the judiciary to fail in its quest to discern those standards or
to exercise "will" and not merely "judgment", the justification for its role would
be called into question.
In Australia, as the federation movement gained momentum in the final
decades of the nineteenth century, there had been no revolution. Nor was there
fear of government; much less fear of government by the people. Federation
sprang rather from the comparatively mundane recognition within the Australian
colonies of the desirability of unified action in matters of common concern,
31 Levy, Judgments: Essays on American Constitutional History (1972) 26. See generally, Wood,
supra n 12; Bai1yn, supra n 16; Corwin, "The 'Higher Law' Background of American Constitutional
Law" (1928) 42 Harv L Rev 149, 365; Currie, "The Constitution in the Supreme Court: The Powers
of the Federal Courts, 1801-1835" (1982) 49 Univ Chicago L Rev 646.
32 Hamilton, Madison and Jay, supra n 13, 464--472.
33 Ibid 467.
34 Ibid 465.
35 Ibid 467.
36 Quoted in Dixon, Jesting Pilate ( 1965) 44.
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[VOLUME 17
overarched by a sense of common destiny. 37 Yet in turning to the task of
designing a federal constitution, the framers of the Australian Constitution,
influenced by James Bryce's recently published American Commonwealth, 38
were drawn ineluctably towards the United States' precedent. As Sir Owen
Dixon said, the framers "could not escape from its fascination. Its contemplation
dampened the smouldering fires of their originality. " 39 They borrowed its form,
particularly its allocation of specific heads of legislative power to the national
government leaving the residuary with the States, and a good deal of its
terminology.
In incorporating the notion of responsible government, however, the framers
of the Australian Constitution drew upon a tradition of British and colonial
constitutional development with which they were well familiar. Although then,
as now, the term "responsible government" defied precise definition, its core
conception lay in the relationship of the executive to the legislature. 40 Its earliest
recorded official use was in the report of Lord Durham into the affairs of British
North America in 1839. 41 In that report, Lord Durham identified the "constant
warfare" between locally elected representative assemblies exercising legislative
power and imperially appointed governors exercising executive power as a
significant cause of the popular unrest and governmental "irresponsibility" which
had plagued the Canadian colonies. 42 Lord Durham's prescription was to adapt to
colonial use the previously unarticulated conventions governing the relationship
of the Crown and Parliament which had been developing under the unwritten
British Constitution during the previous century. He proposed that, except in
matters of imperial concern, a governor should be instructed to entrust his
administration entirely to those who could command a majority in the local
assembly. In other words, in the exercise of executive power in relation to local
affairs, the Crown's local representative should act only through and on the
advice of ministers of state drawn from and answerable to the local legislature. In
Lord Durham's usage, such government would be "responsible" in at least three
senses. 43 First, the executive would be responsible to the legislature in that
ministers would be continually accountable for their actions. 44 Secondly,
37 See generally, McMinn, A Constitutional History of Australia (1979) Ch V; La Nauze, The
Making of the Australian Constitution (1972) ChI; Moore, The Constitution of the Commonwealth of
Australia (2nd ed 1910) Ch II.
38 Bryce, The American Commonwealth (1888). According to La Nauze, supra n 37, 18-19, 273,
Bryce's book lay "on the Table" throughout the proceedings of the 1897-1898 National Australasian
Convention and had a profound influence on the delegates to both that convention and the 1891
Convention.
39 Dixon, Supra n 36.
40 Winterton, Parliament, The Executive and the Govenor-General (1983) 2:
Essentially ... while the core of the British principle of responsible government is clear, the
edges are fuzzy and ill-defined. Clearly, ... when the (executive] government loses a vote of
confidence in the House of Commons it must advise a general election or resign. But as one
moves from that core . . . the position becomes steadily less clear.
See also Parker, "Responsible Government in Australia" in Weller and Jaensch (eds) supra n II, 1122; Archer, "The Theory of Responsible Government in Britain and Australia" in Weller and Jaensch
(eds), supra n II, 23-31; Birch, Representative and Responsible Government (1964) Ch I.
41 Lucas (ed), Lord Durham's Report on the Affairs of British North America (1912). See also,
Keith, Responsible Government in the Dominions (2nd ed 1927) Vol I, 11-14.
42 Ibid Vol II 79, 84.
43 Cf Birch, supra n 40, 17-21.
44 Lucas (ed), supra n 41, Vol II, 81.
1987]
Foundations of Australian Federalism -Judicial Review
169
members of the legislature would be themselves obliged to act responsibly, with
due regard to the consequences of their activities. No longer could a "colonial
demagogue" express wild opinions and appeal "to the most mischievous passions
of the people, without any apprehension of having his sincerity or prudence . . .
questioned. "45 The weight of government if he should command a majority, or
the potentiality of government if he should not, would lead to restraint. Thirdly,
through the medium of a representative assembly, both the legislature and the
executive would be responsible, in the sense of being responsive, to the public. 46
In short, the system would lay "the foundation of an efficient and popular
government, ensure harmony, in place of collision, between the various powers
of the State, and bring the influence of a vigorous public opinion to bear on every
detail of public affairs. " 47 Lord Durham's report came to form the basis of British
administrative policy towards self-governing colonies generally. Its system of
responsible government was implemented in several of the Australian colonies in
the 1850's and was an engrained feature of them all by the 1890's. 48
But while Lord Durham's prescription for colonial government was largely
descriptive of the emergent constitutional order of Britain, it was not until the
second half of the nineteenth century that its features came to be more fully
explored. In The English Constitution, published in 1867, Walter Bagehot
dismissed as a fiction the idea that any true separation of govenmental powers
existed in Britain and disclosed the "efficient secret" of the Constitution to be
"close union, the nearly complete fusion, of the executive and legislative
powers."49 To Dicey, who first published his Law of the Constitution in 1885,
the central characteristic was the legal sovereignty of Parliament, behind which
lay the political power of the electorate. 50 The progressive enfranchisement of
the population and the associated decline in influence of the House of Lords had
led to the predominance within Parliament of the House of Commons and, in
effect, to a view of the near fusion of the legislature and the electorate. The
executive was answerable to the legislature and the legislature was answerable to
the electors in periodic elections. The system, at least in its idealized late
nineteenth century form, was therefore premised on a linear concentration of
power, the whole purpose of which was to ensure that the will of the electors
would "by regular and constitutional means always in the end assert itself as the
predominant influence in the country. " 51 Within such a system the Courts had
little or no role to play beyond the interpretation of Acts of Parliament and the
exposition of those areas of the common law left to them by Parliament,
including those common law rules limiting executive power. Sovereignty lay
formally with the Crown, legally with Parliament (technically the Crown in
Parliament) and politically with the electorate, and balance was achieved through
the electoral and internal Parliamentary processes.
Ibid 82.
Ibid 217.
47 Ibid 27fr277.
48 McMinn, supra n 37, Cbs III and IV; Melbourne, "The Establishment of Responsible
Government" in Rose, Newton and Benians (eds), The Cambridge History of the British Empire
(1933) Vol VII, Pt I, Ch X.
49 Bagehot, The English Constitution (1964) 65.
so Dicey, supra n 4, Ch I.
SI Ibid 73. See generally, Birch, supra n 40, 72-78. CfMacKinnon, The Crown in Canada ( 1976)
Ch I.
4s
46
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[VOLUME 17
The contrast between this view of government and the theory which had
underlain the establishment of the United States' Constitution is stark. If
constitutionalism is defined as the negation of despotism by limitation of
government, 52 the contrast between the American and British systems may be
stated in terms of the difference between potentially competing notions of
constitutionalism. It is the difference between government separated from the
people and limited by law and an internal separation of powers, and government
emanating from the people and limited by a need to appeal constantly to the
support of a broadly based electorate drawn from the people it governs.
In the Australian colonies, apart from difficulties caused by the duality of
governors' allegiances in matters of imperial and local concern 5 3 and the
existence in some colonies of elected upper houses whose submission to their
more popularly constituted lower house counterparts was not always readily
forthcoming, the system of government which developed following the introduction of responsible government was very much in line with that of Britain. 54 In
respect of the relationship between legislatures and electorates, an extremely
rapid expansion of the franchise in each of the Australian colonies was
indicative, if anything, of a commitment to rule in accordance with the will of a
broadly based democratic majority which was even stronger than that in Britain.
In respect of the relationship between legislatures and courts, the complications
which arose at first from the subordinate status of colonial legislatures were
largely settled by the Colonial Laws Validity Act of 1865 which declared that
colonial laws were to be invalid only to the extent to which they were repugnant
to a law applying in a colony made by or under the authority of the British
Parliament. 55 This was followed by a series of decisions of the Privy Council in
the 1870's and 1880's which established that colonial legislatures were not to be
regarded as delegates of the British Parliament but possessed plenary power
within their fields of legislative competence. 56 In effect, this meant that colonial
legislatures in Australia were confined only to the extent of their territorial
jurisdiction. 57 By the 1890's, as the prospect of the control of one democracy by
another became increasingly less tolerable, it was clear that the British
Parliament would act in relation to Australian colonial affairs only where
requested. 58 Effective power lay with colonial legislatures and ultimately with
the Australian people.
52 Mcilwain, Constitutionalism Ancient and Modern (revised ed 1947) 21. Cf James (ed), The
Constitutional Challenge: Essays on the Australian Constitution, Constitutionalism and Parliamentary Practice (1982) 3.
53 See generally: Zines, "The Growth of Australian Nationhood and its Effect on the Powers of the
Commonwealth" in Zines (ed), Commentaries on the Australian Constitution (1977) Ch I, 1-15.
54 McMinn, supra n 37, Ch IV. This is not to deny the existence of significant local variations: See
Finn, Law and Government in Colonial Australia (1987).
55 Colonial Laws Validity Act 1865 (UK), ss 2,3. See generally, Campbell, "Colonial Legislation
and the Laws of England" (1964-1967) 2 Tas UL Rev 148.
56 Reg v Burah (1878) 3 AC 889; Hodge v The Queen (1883) 9 AC 117; Powell v Apollo Candle
Company (1885) 10 AC 282.
57 Macleod v Attorney-Genera/for New South Wales [1891] AC 455. It had been earlier held in the
Supreme Court of Victoria that even a plainly unconstitutional law should be administered by local
courts: Reg v Call; ex parte Murphy (1881) 7 VLR 113. See also Salmond, "The Limitations of
Colonial Legislative Power" (1917) 33 LQR 117.
58 Allin, The Early Federation Movement in Australia (1907); cf Mcilwain, The High Court of
Parliament and its Supremacy (1910) 39~392.
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Foundations of Australian Federalism -Judicial Review
171
So it was that the preliminary resolution of the National Australasian
Convention held in Adelaide in 1897, while made on the assumption that an
Australian federal constitution should be enacted by the British Parliament so as
to be legally binding in each of the colonies, declared that the purpose of
federation was "to enlarge the powers of self-government of the people of
Australia. "59 The resolution went on to state as the first condition for the creation
of a federal government "that the powers, privileges and territories of the several
existing colonies shall remain intact, except in respect of such surrenders as may
be agreed upon to secure uniformity of law and administration in matters of
common concern". 60 Sir Robert Garran later explained that the declaration was
intended "to direct the attention of opponents and lukewarm supporters to the fact
that, though federation involved the surrender by the Governments of the several
colonies of certain rights and powers, yet as regards each individual citizen there
was no surrender, but only a transfer of those rights and powers to a plane on
which they could be more effectively exercised". 61 He explained that the first
condition was similarly intended "to quiet the fears and doubts of provincialists
who shrank from the idea of control by a national government". 62 Of course, the
first condition also reflected a conception of a distribution of legislative powers
which was clearly based on the United States' model. However, when read
against the background of the development of colonial government in Australia,
that conception takes on a somewhat different significance. The declaration
contained in the preliminary resolution together with Sir Robert Garran's
explanation of it confirms that a strongly democratic and even instrumental view
of government was shared in large measure by opponents and supporters of
federation alike. Writing less than a decade after federation, Bernard Wise went
some way towards capturing this attitude and illustrating its difference from the
underlying philosophy of the United States' Constitution when he noted the
overwhelmingly working class character of Australian society and Australian
politics and continued:
The dominant idea of the average voter is to make Australia a better country to live in
for men of his own class - for he has learnt by experience that men of wealth and
ability are well able to look after themselves, - and, so far from mistrusting
Governmental action, he draws legislation into his service as a ready and effective
instrument of reform. This does not imply any adherence on his part to a particular
theory of the State; for the Australian is a voter and not a philosopher and his
democracy is not so much a reasoned creed but an instinct. 6
The professed motivation of the supporters of Australian federation was not to
divide or weaken government or to further remove it from the people but rather to
make it a more effective instrument of the popular will.
The intention of the framers of the Australian Constitution was to create a
federal government, albeit of limited jurisdiction, which would be responsive to
the popular will in specified matters of national concern and to superimpose it
Official Report, supra n 2, 17.
/d.
61 Garran, "The Federation Movement and the Founding of the Commonwealth" in Rose, Newton
and Benians (eds) supra n 48, Ch XV, 455.
59
60
~M
Wise, The Commonwealth of Australia (1909) 51. See also Pearson, National Life and
Character (2nd ed 1894) 18-19.
63
.
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upon existing colonial or state governments which were seen as each adequately
responsive to the popular will within their respective territorial constituencies. In
relation to the distribution of legislative powers, the key provisions which came
to be embodied in the text of the Constitution were: s 51, setting out the thirtynine specified subjects with respect to which the Commonwealth Parliament was
to have power to make laws; s l 07, preserving the powers of State Parliaments
except to the extent to which such powers were by the Constitution withdrawn
from them or vested exclusively in the Commonwealth; and s l 09, providing that
in the event of inconsistency between State and Commonwealth laws the latter
should prevail and the former should be invalid to the extent of the inconsistency.
In relation to the structure of government at the federal level, while the
Constitution followed its United States' prototype in dealing in separate chapters
with legislative, executive and judicial powers, the inclusion of the institution of
responsible government created the British heart in an otherwise American
federal body. Although the single direct reference to responsible government in
the text of the Constitution came to lie in the provision of s 64 that "no Minister
of State shall hold office for a longer period than three months unless he is or
becomes a senator or a member of the House of Representatives", 64 it is clear that
behind this simple provision lay an intention to incorporate much more of the
spirit of government with which the framers were familiar than could be
comprehended by the mere accountability of one branch of government to
another. In The Coming Commonwealth, 65 published shortly before the Adelaide
Convention of 1897, the young Robert Garran had warned against any attempt to
lay down any fixed pattern for responsible government in the Constitution as
being destructive of its chief merits of flexibility and responsiveness to the
popular will. In elaborating this position, he stated:
Some fundamental principles must be fixed by the Constitution (subject to a more or
less difficult process of amendment); whilst the great mass of merely accidental, and
not essential characteristics of government may be left at large, to be controlled from
time to time by the Parliament and the will of the people, as is the case to-day in Great
Britain and in every self-governing colony. 66
In a similar vein, Edmund Barton referred to the provision during the debates at
the Adelaide Convention as constituting "the hold by which Parliament . . .
would make [ministers] responsible to the people."67
An indication of the breadth of the connotation which the framers of the
Australian Constitution attached to responsible government is provided by the
debate concerning the relationship between the House of Representatives and the
Senate. While there was never any real doubt that senators should be elected
directly by the people of each state, rather than in strict accordance with the
United States' precedent of appointment by state governments, it was treated by
the smaller colonies as the price of federation that the states should be equally
represented irrespective of the size of their populations. But in a regime in which
the Senate was to have equal power with the House of Representatives, this
Oblique reference is also made in s 44 and possibly s 62.
Garran, The Coming Commonwealth (1897).
66 Ibid 149. See also Garran, "The Development of the Australian Constitution" (1924) 40 LQR
202, 217.
67 Convention Debates. Adelaide (1897) 913.
64
65
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would mean that the will of the majority of Australians - as represented by that
House- could be constantly frustrated by the will of a minority - as might be
represented by a bare majority in the Senate. 68 Indeed, Sir Robert Garran later
wrote that the "fundamental problem of the federal system" was "how to
reconcile the principles of government by the will of the majority of the people,
and government by the will of a majority of the States. " 69 It was in this context
that it was repeatedly exclaimed during the conventions preceding federation that
either "responsible government will kill federalism or federalism will kill
responsible government". 70 Notwithstanding the protests of some that the Senate
would be representative of the people as much as the House of Representatives,
the issue remained of central importance. In the end a compromise was reached.
The Senate was given equal power with the House of Representatives in respect
of all proposed laws except that it could not originate or amend bills appropriating revenue or moneys or imposing taxation. In the event of an extended
disagreement by the Senate to a law imposed by the House of Representatives,
provision was made for the simultaneous dissolution and re-election of both
Houses. 71 If agreement still could not be reached, a joint sitting of the two
Houses could be called at which the proposed law could be carried by a bare
majority of members present. 72
The repeated references to "the people" are significant. The framers of the
United States' Constitution had invoked "the People" in a remote and abstracted
sense as providing the higher law justification for the establishment of a
constitutional system by which the people in their ordinary political dealings
were to be governed. The use of the term by the framers of the Australian
Constitution was much more concrete and immediate. It was not "the People" in
some transcendent sense or the people acting only in rare moments of
constitution-making or constitutional revision to which they appealed when
considering the legitimacy of political institutions or government action, 73 but
the people expressing their will from time to time through the ordinary political
process. The idea stemmed from, and is arguably inherent in, the notion of
responsible government itself. Far from being something to be feared and
contained, ordinary politics was seen as the primary means by which people
exerted real, tangible and ongoing control over government.
Perhaps surprising in the light of this general attitude is the readiness with
which the framers of the Australian Constitution were prepared to concede a role.
to the High Court and the institution of judicial review as it related to the
respective powers of the Commonwealth and the States. Although the High
Court was initially conceived simply as an appellate tribunal to hear appeals from
State supreme courts in matters of general law, 74 there appears to have been a ·
68 See generally, McMinn, supra n 37; La Nauze, supra n 37, Ch IX; Galligan, "The Founders'
Design and Intentions Regarding Responsible Government" in Weller and Jaensch (eds) supra n II,
1-10.
69 Garran, supra n 61, 343.
70 Eg, Official Report, supra n 2, 28. See generally: La Nauze, supra n 37, 41-42, Ch IX;
Galligan, supra n 68, 4.
71 Australian Constitution, s 53.
72 Australian Constitution, s 57.
73 Cf Ackerman, "The Storrs Lectures: Discovering the Constitution" (1984) 93 Yale U 1013.
74 La Nauze, supra n 37. 35.
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growing appreciation as federation approached that the Court would also play a
significant role in the settlement of disputes arising under the Constitution. 75 But
in contrast to the position in the United States where judicial review, although
central to the federalist scheme, had been nonetheless controversial from the
beginning, in Australia it engendered little debate. While nowhere explicitly
stated in the Constitution, its necessity and propriety were never really in
dispute. After all, the Constitution was to be in form an Act of the British
Parliament whose superior legal authority at the time of federation was
unquestioningly accepted. 76 Furthermore, the framers of the Constitution, or at
least the lawyers among them, were awart> in general terms of the precedent
established by the Supreme Court in relation to the United States' Constitution. 77
This carried the understanding that the judiciary would give effect to the division
of powers in the Constitution by preventing encroachments by either the
Commonwealth or the States into their respective fields of operation. 78 The later
claim by the High Court that judicial review, and even the principle in Marbury v
Madison, 79 was accepted in Australia as "axiomatic" is therefore not without
justification. 80
The nature and form of judicial review, however, and particularly its
relationship to the deeper traditions associated with responsible government,
appear to have escaped the attentions of the framers almost entirely. James
Bryce's book gave the traditional explanation of judicial review in the United
States as involving a mechanical comparison of statutes with the words of the
Constitution. 81 Isaac Isaacs indicated a more realistic understanding by pointing
out that the United States' experience showed that judicial review would result in
the Australian Constitution being adapted over time to meet the changing needs
of the nation. 82 However, there seemed little need for this idea to be developed.
Any significant changes were to be brought about by amendment. 83 The
amendment process embodied ins 128 of the Constitution, appealing directly to
the Australian people and not to the States, was thought to be considerably more
flexible than the American model. 84 It is text book history that this has not been
the case and that the Australian Constitution has experienced a high level of
textual rigidity. 85
75 Ibid 130-131; see generally Thomson, "Constitutional Authority for Judicial Review: A
Contribution from the Framers of the Australian Constitution" in Craven (ed). The Convention
Debates 1891-1898: Commentaries Indices and Guide (1986) 173-202.
76 Lindell, "Why is Australia's Constitution Binding?- The Reasons in 1900 and Now, and the
Effect of Independence" (1986) 16 FL Rev 29, 30-33.
77 Sawer, "The Record of Judicial Review" in Sawer (ed) supra n 8, 211; Galligan, "Judicial
Review in the Australian Federal System: Its Origin and Function" (1979) 10 FLRev 367.
78 There is, moreover, evidence that the provisions of the Australian Constitution dealing with the
control of inland waters were cast in deliberately broad language in the expectation that their detailed
appliction would be worked out in the Courts: Galligan, supra n 74, 388-392.
79 I Cranch 137 (1803).
80 Australian Communist Party v Commonwealth (1951) 83 CLR I, 262-263; Victoria v
Commonwealth (1975) 134 CLR 338, 379.
8 ' Bryce, supra n 38, 323.
82 Record of the Debates of the Australian Federal Convention, 20 January - 17 March, 1898
(1898) 283.
83 La Nauze, supra n 37, 286-287.
84
/d.
See generally, Crisp, Australian National Government (1983) Ch 2. CfMachiavelli, The Prince
(Penguin ed 1961) 51:" ... there is nothing more difficult to handle, more doubtful of success, and
more dangerous to carry through than initiating changes in a state's constitution."
85
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Foundations of Australian Federalism -Judicial Review
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2 THE FAILURE OF LEGALISM
The dominant approach of the High Court to judicial review under the
Australian Constitution has been termed "legalism". Its most concise statement is
found in the address of Sir Owen Dixon upon assuming the office of Chief
Justice in 1952:
Federalism means a demarcation of powers and this casts upon the Court a
responsibility of deciding whether legislation is within the boundaries of allotted
powers. Unfortunately that responsibility is very widely misunderstood ... and it is
not sufficiently recognized that the Court's sole function is to interpret a constitutional
description of power or restraint upon power and say whether a given measure falls on
one side of a line consequently drawn or on the other . . . Such a function has led us
all I think to believe that close adherence to legal reasoning is the only way to
maintain the confidence of all parties in federal conflicts. It may be that the Court is
thought to be excessively legalistic. I should be sorry to think that it is anything else.
There is no other safe guide to judicial decisions in great conflicts than a strict and
complete legalism. 86
The statement was repeatedly endorsed by Sir Garfield Barwick. 87
Constitutional legalism as described by Sir Owen Dixon has two elements.
The first relates to the function of the High Court in the federal system. It is the
assumption that federalism necessarily requires the Court to play a unique role in
determining the constitutionality of government action. In this sense, it is a
version of the idea of legalism advanced by Dicey: that federalism, of its nature,
involves the constitutional predominance of the judiciary. 88 The second relates to
the manner in which the Court exercises this constitutional function. It is the
projection of the judicial role as simply involving the interpretation and
enforcement of limitations on government power set out in the text of the
Constitution. In this sense, it is aligned with the justification for judicial review
advanced by Hamilton and Marshall and accepted by Bryce in the context of the
United States' Constitution: that the judiciary, of its nature, exercises only
judgment in the interpretation of higher law. 89
The two elements are closely inter-related. The second is premised upon the
first but also provides its justification. The "Court's sole function" of drawing
lines to contain government power based on its interpretation of a constitutional
description of power or restraint upon power justifies it being the "Court's sole
function" to do so. The peculiar institutional capacity of the judiciary to draw
lines according to the dictates of "strict and complete legalism" justifies its
predominant role in the Constitution.
86 Dixon, "Address upon taking the oath of office in Sydney as Chief Justice of the High Court of
Australia on 21st April, 1952", reprinted in Dixon, supra n 36, 245-249, 247. Cf United States v
Butler, 297 US l, 62-63 (1936).
87 Eg, Attorney-General (Cth); ex rei McKinlay v Commonwealth (1975) 135 CLR l, 17; Barwick,
Book Review (1981) 4 UNSW U 131, 134; Barwick, "Foreword" in Bennett, supra n l, vi-vii.
88 Dicey, supra n 4, 175. See also Reg v Kirby; ex parte Boilermakers' Society of Australia (1956)
94 CLR 254, 267-268: "The conception of independent governments existing in the one area and
exercising powers in different fields of action carefully defined by law could not be carried into
practical effect unless the ultimate responsibility of deciding upon the limits of the respective powers
of the governments were placed in the federal judicature."
89 Supra text at nn 30-35, 77.
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Despite occasional suggestions to the contrary, constitutional legalism has not
meant literalism. 90 The High Court has readily resorted to implications in
determining the scope of government power. Nor has legalism meant a denial of
the broadly political nature of constitutional argument. In another well known
passage, Sir Owen Dixon explained: "It is not a question whether the considerations are political, for nearly every consideration arising from the Constitution
can be so described, but whether they are compelling. " 91 Clearly, he had in mind
that constitutional argument should be compelling in the eyes of the Court.
What legalism has meant is the persistence of a practice of constitutional
argument based on the belief that the Constitution sets definite substantive limits
on government power and that it is possible for the judiciary to determine those
substantive limits simply by a process of interpretative judgment based on the
letter and spirit of the constitutional text. It has involved the belief that the Court
can and must draw lines to contain government power and that adherence to the
strict analytical and conceptual techniques of formal legal argument provides the
only sure method of approaching what is necessarily a sensitive political
function.
It has been the lesson of history, however, that "strict and complete legalism"
has failed to provide a "safe guide to judicial decisions". In terms of doctrinal
development, High Court interpretation of the Constitution divides into two
distinct periods, the turning point being the Engineers' case92 in 1920. Although
throughout each period the Court has seldom claimed to be doing anything more
than drawing lines through a process of constitutional interpretation, the periods
produced radically different conceptions of the manner in which the lines were to
be drawn.
During the period prior to the Engineers' case, in accordance with the then
prevailing view within the Supreme Court of the United States, 93 the Constitution was interpreted as establishing the Commonwealth and the States each as
"sovereign" within their respective spheres. The function of the Court was to
arbitrate between these "sovereigns", preventing either from encroaching on the
other. 94 The lines were therefore walls separating rival players. Of "necessity"
two separate but related doctrines were said to arise from the nature of the
Constitution: the doctrine of "implied prohibitions", according to which neither
the Commonwealth nor the States could burden or control the activities of the
other; 95 and the doctrine of "reserved powers", according to which s 107 of the
Constitution was interpreted as reserving to the States a discrete area of
legislative competence into which the legislative power of the Commonwealth
90 See generally, Zines, supra n 4, 341-348; Cooray, Conventions, The Australian Constitution
and the Future (1979) 1-10.
91 Melbourne Corporation v Commonwealth (the State Banking case) (1947) 74 CLR 31, 82.
92 Amalgamated Society of Engineers' v Adelaide Steamship Co Ltd (the Engineers' case) (1920)
28 CLR 129.
93 See especially, McCulloch v Maryland 4 Wheat 316 ( 1819) as interpreted in Collector v Day II
Wall 113 (1870); United States v EC Knight Co 156 US I (1895).
94 See generally, Zines, supra n 4, 1-7.
95 Eg D'Emden v Pedder (1904) I CLR 91; Deakin v Webb (1904) I CLR 585; Federated
Amalgamated Government Railway and Tramway Service Association v New South Wales Railway
Traffic Employees Association (the Railway Servants' case) (1906) 4 CLR 488.
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Foundations of Australian Federalism -Judicial Review
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under s 51 could not intrude. 96 In practice these doctrines were incapable of
providing precise answers in all cases and a number of distinctions and
exceptions were established. Being founded on necessity, they were forced to
undergo modification wherever necessity pointed in another direction. 97
In the Engineers' case a partly re-constituted High Court administered the
coup de grace to the doctrine of implied prohibitions, and by implication, to the
doctrine of reserved powers. In the leading judgment, delivered by Mr. Justice
Isaacs, the process of implication upon which the doctrine of implied prohibitions was based was criticized as depending "on a vague individual conception of
the spirit of the compact", 98 as having produced "entanglement and uncertainty"99 and as having led inevitably "to divergences and inconsistencies more
and more pronounced as the decisions accumulate". 100 The principle of necessity
was said to be "referable to no more definite standard than the personal opinion
of the Judge who declares it". 101 The word "necessity" had been employed in "a
political sense" and was "incapable of consistent application": 102
Not only is the judicial branch of the Government inappropriate to detemine political
necessities but experience, both in Australia and America, evidenced by discordant
decisions, has proved both the elusiveness and inaccuracy of the doctrine as a legal
standard. 103
The new constitutional orthodoxy was declared to be that Commonwealth
powers as "ascertained by the ordinary principles of construction" were to be
given their full operation, even with respect to State instrumentalities, in the
absence of express constitutional provisions to the contrary. 104 It was declared to
be "a fundamental and fatal error to read s l 07 as reserving any power from the
Commonwealth that falls fairly within the explicit terms of an express grant in
s 51, as that grant is reasonably construed, unless that reservation is explicitly
stated." 105 State legislation otherwise within the power preserved by s 107
would, by virtue of s 109, be invalid to the extent to which it conflicted with
valid Commonwealth legislation.
But the potentially radical departure from constitutional legalism signalled by
the Engineers' case, which will be explored in the next section of this article,
was short lived. The "ordinary principles of construction" referred to as a basis
for liberation from old doctrines were seized upon in later generations as
themselves being a means of containing government power. The High Court
entered a new phase of legalism from which it has yet fully to emerge. It no
longer purported to build walls between rivals, but it saw, and to an extent
continues to see, its function as being to erect boundaries around the perimeters
96 Eg Attorney-Genera/ (New South Wales) v Brewery Employees Union of New South Wales (the
Union Label case) (1908) 6 CLR 469.
97 Eg Attorney-Genera/ (New South Wales) v Collector of Customs (the Steel Rails case) (1908) 5
CLR 818.
98 Supra n 10.
99 Ibid 142.
100 Ibid 145.
101 Ibid 142.
102 Ibid 151.
103 /d.
104 Ibid 154.
105
/d.
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of government power. In accordance with the precepts of legalism, the Court's
interpretation, and the Court's interpretation alone, of the meaning of the words
of the Constitution must prevail.
The difficulty is that a purely judge-based interpretation of the wording of ·
constitutional powers and restraints is necessarily open to the same criticism as
was employed in the Engineers' case to consign the old doctrines to oblivion.
This is not to suggest that legalism is a mere cloak for blatantly political action.
Nor is it to deny that precedents can develop over a period of time into a coherent
body of doctrine capable of generating reasonably determinate outcomes to
constitutional problems. It is simply to say that legalism is incapable of fulfilling
its own agenda: that a neutrally based a priori approach to constitutional line
drawing is in its own terms impossible and that the High Court's acknowledged
readiness to depart from old doctrine where it considers it misconceived or
inappropriate means that the choice between any number of reasonable alternative positions assumes an air of arbitrariness.
With few exceptions, the powers and restraints stated in the Constitution are
cast in broad terms. The plain and natural meaning of the words furnish little
guidance to the constitutional decision-maker. The perceived need for the
judiciary nevertheless to draw lines to contain government power has led to the
erection of intermediate criteria for interpretation. This is illustrated by the
process of "characterization" - of determining whether a Commonwealth law
falls within the perimeters of Commonwealth constitutional power. It is divided
into two stages. First, meaning is attributed to the defining words of a grant of
Commonwealth power and then a determination is made of whether the
particular law falls within the description of being "with respect to" the grant of
power as defined. 106 Formal guidelines or canons of construction exist at each
stage. Their purpose is to guide the judgment of the judiciary so as to negate
personal choice or value judgment. Yet when these guidelines or canons are
examined it becomes clear that they are inadequate to achieve that purpose.
Vagueness within each guideline and conflict between them makes some element
of choice unavoidable.
Within the first stage of attributing meaning to the defining words of a grant of
Commonwealth power, two notions vie for acceptance. One relies on the
philosophical distinction between connotation and denotation. It holds that the
connotation of a word used in the Constitution, (the essential characteristics of
the idea it embodies) remains frozen at the time of its enactment in 1900 but that
its denotation (matters displaying these characteristics and so falling within the
ambit of the idea) may vary through time. 107 The other relies on an understanding
of the Constitution as an organic instrument and of its words as having a
deliberately variable content. It calls to mind that the judiciary is "interpreting a
Constitution broad and general in its terms, intended to apply to the varying
conditions which the development of our community must involve." 108 As
Eg Zines, supra n 4, Ch 2.
Reg v Commonwealth Conciliation and Arbitration Commission; ex parte Association of
Professional Engineers ( 1959) 107 CLR 208, 267.
108 The Jumbunna Coal Mine, No Liability v The Victorian Coal Miners' Association (1908) 6
CLR 309, 367-368; Australian National Airways Pty Ltd v Commonwealth (1945) 71 CLR 29, 81;
Reg v Coldham; ex parte Australian Social Welfare Union, supra n 6, 581.
106
101 Eg
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ordinarily invoked, the former notion justifies a restrictive interpretation of the
defining words of a head of power and the latter an expansive interpretation.
Neither is capable of definitive guidance. The inadequacy of the former notion is
illustrated by the division which occurred within the High Court on the question
whether radio services fell within the constitutional description of "Postal,
telegraphic, telephonic, and other like services". 109 The contrast between the
majority holding that radio was a "like service" because it shared the essential
characteristic of being a means of communication and the dissent that radio was
not a "like service" because it lacked the essential characteristic of being a means
of inter-communication can be explained at best only in terms of a variation
between the personal intellectual convictions of the judges as to the nature of the
services involved. 110 The inadequacy of the latter notion is evident from the
extreme selectivity of its invocation. If pressed to its limit, it could be seen as
suggesting that no construction of a grant of Commonwealth power should be
rejected that the words are reasonably capable of bearing at any given time. In
practice, it is invoked only to support a broad interpretation. It is ignored where
the Court rejects an argument for a broader interpretation than it is prepared to
give.
Within the second stage of determining whether a law meets the description of
being "with respect to" an enumerated grant of Commonwealth power, it is now
reasonably settled that a law which selects as its legal criteria a matter falling
within the constitutional description of a grant of power will be with respect to
that power irrespective of its policy or consequential effects. 111 However, where
the nexus with a grant of power is dependent upon the practical operation or
purpose of a law or upon its degree of connection with the central conception of
the subject matter of the grant, the question of whether a judicially drawn line
will include or exclude the law is often fraught with uncertainty. Again, two
notions vie for acceptance. One view is that the Court must see a reasonable
proportionality between the ends of the law claimed to be within power and the
means chosen to attain those ends. 112 In other words, it must see that the law is
appropriate and adapted towards achieving a purpose which lies within the
constitutional competence of the Commonwealth. In its own terms, this involves
questions of degree. These questions of degree are to some extent mitigated by
the exclusion of certain factors as legally irrelevant to the establishment of the
requisite nexus. The traditional judicial hostility towards cognisance of economic
effects in relation to the inter-state trade and commerce power provides a ready
example. 113 Another view is that provided a law is enacted as a means of
effectuating a desired end which is within power, questions of degree and
proportionality are for Parliament to decide. 114 Again, if pressed to its logical
extreme, this would mean that the Court would never hold a Commonwealth law
R v Brislan; ex parte Williams (1935) 54 CLR 262.
Zines, supra n 4, 17-18.
111 Murphyores Incorporated Pty Ltdv Commonwealth (1976) 136 CLR I; Herald & Weekly Times
Ltd v Commonwealth (1966) 115 CLR 418.
112 Eg Marcus Clarke & Co Ltd v The Commonwealth (1952) 87 CLR 177, 215-216; the
Tasmanian Dam case, supra n 6, 545.
113 Eg, Airlines of New South Wales Pty Ltd v New South Wales [No 2] (1965) 113 CLR 54.
114 Eg, Herald & Weekly Times Ltd v Commonwealth, supra n 9, 437; the Tasmanian Dam case,
supra n 6, 488.
109
110
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to be invalid where its purpose of furthering an end within power could be
demonstrated. It has been ignored in cases where the Commonwealth has been
held to have transgressed judicially drawn bounds of constitutional propriety.
Similar difficulties of vagueness and conflict are encountered when an attempt
is made to tum from formality to policy as the guiding principle of constitutional
line drawing. Here the battle lines have been drawn between the concept of
"federalism" or "the federal balance" as providing a reason for preferring a
restrictive interpretation of Commonwealth power and the concept of "nationhood" or "the national interest" as providing a reason for preferring an expansive
interpretation. The inherent irreconcilability of these concepts and the necessary
indeterminacy of each of them has been demonstrated by Professor Zines. 115
Beyond necessarily involving the continued existence of the Commonwealth and
the States as separate governmental entities, federalism is a concept in search of a
meaning. 116 The federal balance is in a constant state of change. Its freezing by
the Court at a particular moment in history, if justifiable at all, can be so only by
reference to criteria drawn from outside the Constitution. "[T]he broad notion of
federalism has nothing to say - and can have nothing to say - as to what
powers and how much power must remain with the States. The judge is left to his
own intuitions or predilections or to a familiar or historical state of affairs." 117
Nationhood suffers a similar affliction. There is no topic capable of generating
significant government interest at the Commonwealth level that cannot be cast as
a matter of national concern. The inclusion by a judge of some topics and the
exclusion of others is at best a question of degree and at worst a matter of
personal impression.
The single area of doctrine in which the concept of federalism has given rise to
a clear rule limiting Commonwealth power provides perhaps the best illustration
of its indeterminacy in the absence of an underlying normative judgment. The
High Court has reaffirmed the statement of Sir Owen Dixon in the State Banking
case 118 that:
the efficacy of the Australian federal system logically demands that, unless a given
legislative power appears from its content, context or subject matter so to intend, it
should not be understood as authorizing the Commonwealth to make a law aimed at
the restriction or control of a State in the exercise of its executive authority. In
whatever way it may be expressed an intention of this sort is . . . to be plainly seen in
the very frame of the Constitution. 119
The very language of this statement betrays its weakness. In truth, the demands
of logic in legal discourse are minimal. As Felix Cohen has said: "Rules of logic
can no more produce legal or moral doctrines than they can produce kittens. On
the whole, it is safe to assume that those legal doctrines that claim to be the
offspring of logic are either not proud or not aware of their real parents. " 120 The
115 Zines, "The State of Constitutional Interpretation" (1984) 14 FL Rev 277. See also, Coper,
"The High Court and the World of Policy" (1984) 14 FL Rev 294.
116 See generally, Davis, The Federal Principle (1978). For a general discussion within the
Canadian context see Monahan "At Doctrine's Twilight: The Structure of Canadian Federalism"
(1984) 34 University of Toronto Law Journal 47.
117 Supra n 115, 284.
118 Supra n 91. See Queensland Electricity Commission v Commonwealth of Australia (1985) 59
AUR 694.
119 State Banking case, Supra n 91, 83.
12° Cohen (ed), The Legal Conscience- Selected Papers of Felix S Cohen (1960), 25-26.
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Foundations of Australian Federalism -Judicial Review
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efficacy of the federal system may possibly be said to demand the doctrine laid
down in the statement only if it is assumed that the Commonwealth government
is antagonistic to the interests of the States, that the maintenance of a level of
State executive autonomy is an essential part of federalism and that there is no
other mechanism of constitutional constraint providing an adequate safeguard
against Commonwealth aggression. These assumptions are in accord with the
animating concerns of the framers of the Constitution of the United States and
with Sir Owen Dixon's own philosophy, but they are seen plainly in the frame of
the Australian Constitution only in the light of the projection of that particular
political vision.
In the end, legalism wholly fails. It does so because it cannot achieve the level
of objectivity upon which its legitimacy depends. The general description of a
power or restraint on power simply cannot dictate the drawing of a line in a
particular concrete case. Nor can general concepts be neutrally derived from the
nature of the federal system. There is always an element of choice.
3 TRUSTING THE POLITICAL PROCESS
A Looking Again at the Engineers' case 121
The basis of modem Australian constitutional jurisprudence, and indeed the
basis of legalism, is generally acknowledged to lie in the approach of the High
Court in the Engineers' case. Yet despite its prominence the case remains
enigmatic.
As normally interpreted 122 , the Engineers' case substituted one form of
legalism for another. More specifically, it substituted a more legalistic approach
- one based on the "ordinary principles of construction" - for a less legalistic
approach - one involving vague and unworkable implications. The difficulty
with this interpretation is that, while it may more or less adequately account for
the rejection of the doctrine of implied prohibitions, it cannot fully explain the
rejection of the related doctrine of reserved powers. The enumeration of grants of
Commonwealth legislative power in s 51 of the Constitution is prefaced by the
words "[s]ubject to this Constitution". The saving of the power of State
Parliaments in s 107 is not so qualified. The strict rules of statutory construction,
if applied independently of wider considerations, would not unquestioningty
dictate an expansive reading of s 51 at the expense of s 107. A strong argument
could be made that they point in the other direction.
A more sophisticated view has been to see the Engineers' case in its historical
context as a milestone along the path of Australian nationhood, reflecting "a
growing realization that Australians were now one people and Australia one
country and that national laws might meet national needs." 123 Although the
importance of the emerging sense of national identity following the First World
War cannot be understated, as a complete explanation of the Engineers' case it
Amalgamated Society of Engineers' v Adelaide Steamship Co Ltd (1920) 28 CLR 129.
Eg Zines supra n 4, 7-9; Cooray and Ratnapala, "The High Court and the ConstitutionLiteralism and Beyond" in Craven (ed), supra n 76, 210-211.
123 Victoria v The Commonwealth (1971) 122 CLR 353, 396. See also, Queensland Electricity
Commission v Commonwealth of Australia (1985) 61 ALR I, 40; Zines, supra n 4, 15; Windeyer,
Some Aspects of Australian Constitutional Law (1972) 36-39.
121
122
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ignores several important facts. First, and most importantly, it is a consideration
which finds no explicit support in the reasoning of the Court. Secondly, the case
was decided at a time when there was no significant push within the Australian
community towards the enhancement of national power. 124 Thirdly, the arguments actually advanced by Isaacs J in the leading judgment were not new.
They reflect a line of reasoning which he had advanced as counsel before the
High Court in 1904, 125 and with which he had on the whole persisted in dissent
for some thirteen years after being appointed to the Court. 126
The obscurity of the judgment in the Engineers' case is largely attributable to
its style. It has been justifiably described as "one of the worst written and
organised in Australian judicial history" 127 and as having been "written with
more fervour than clarity". 128 This has made penetration of its reasoning
problematic. The repeated references in the judgment to the plain meaning of the
text of the Constitution and to the duty of the Court to proceed according to the
"ordinary principles of construction" 129 have been given emphasis subsequently
to the exclusion of all else. Even more prominent in the judgment are references
to responsible government and the indivisibility of the Crown as the principal
reasons for rejecting the old doctrines based on American precedents.
Commenting on the case in 1933, 130 Sir Harrison Moore obviously did not find
these references difficult to understand. He saw responsible government in much
the same way as I have described it in Part 1: as part of the system of
parliamentary government which had developed in the Australian colonies prior
to federation. He drew a contrast between the judicial respect for legislative
enactments this entailed and the prevalent view in the United States:
In the United States, the essentials of federalism were developed in conditions which
precluded any exaggerated respect for the acts of Legislatures as such. Succeeding the
colonial Legislatures, which were themselves subject to various restraints based on
their dependent condition or on an individualistic political philosophy, legislative
bodies were conceived of even legally as holding their powers not as inherent but as
derived from the people and upon a trust. These considerations reinforced the express
limitations upon Federal and State Legislatures alike, with which the constitutions
abound. In Australia, these conditions were absent, and her Legislatures had grown
up in an atmosphere of parliamentary sovereignty, with the traditional attributes of
British parliamentary institutions, so far as these were possible in a non-sovereign
community . . . Part of this system also was responsible government, the responsibility of the executive to the Legislature, a principle which, in the words of Lord
Haldane in the House of Commons in 1900, permeated the constitution. 131
Sawer, Australian Federal Politics and Law 190I-I929 (1956) 329.
Deakin v Webb (1904) I CLR 585, 592-600.
126 See generally, Cowen, Isaac Isaacs (1967), Ch VII.
127 Sawer, Australian Federalism in the Courts (1967) 130.
128 Zines, supra n 4, 10.
129 The Engineers' case (1920) 28 CLR 129, 155.
130 Moore, "The Constitution and its Working" in Rose, Newton and Benians (eds), supra n 48, Ch
XVI.
l3 I I bid 48(}...481 .
124
125
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He saw the question of the effect of these differences on the interpretation of the
Australian Constitution as ultimately one of degree:
[I]f the parliamentary nature of the constitution and the responsible government which
"permeates" it are informing matters which may guide its interpretation, not less must
that be true of its federal nature and scheme, which is at least as explicitly stated in the
text. All three in fact appear to be relevant: the weight that may attach to each is not
capable of statement in general form; and there remains the question - in case of
conflict, which prevails? The state of the authorities points to the predominance of the
British parliamentary principle as against federalism as interpreted in the United
States. rl 2
To later generations of legalists, however, such insights were either lost or
deliberately ignored. Sir Owen Dixon made it known that, while he supported
the rejection of the old doctrines, he regarded much of the reasoning in the
Engineers' case as fallacious. 133 To Sir John Latham, writing in 1961, 134 the
references to responsible govenment and the indivisibility of the Crown were
unfathomable:
It is difficult to see precisely what effect these cardinal principles had upon the
decision in the Engineers' case or in any other case. The common sovereignty of the
British Commonwealth lends itself to Athanasian distinctions. The Crown is single
and indivisible: but it has many manifestations. Its manifestations are different
governments . . . . As to responsible government, it is not easy to discover a case in
which the construction of a statute has been affected by the fact that it was passed by a
legislature which contained executive ministers as members and which had the power
of bringing about a resignation or dismissal of such ministers. 135
The lone voice in an otherwise legalist wilderness has been Professor Sawer
who, in an article in 1962, 136 defended the coherence of the argument presented
in the Engineers' case judgment:
Fairly treated by reference to its history in the development of the Constitution, the
whole of its argument hangs together and there is little surplusage. For example, the
references to responsible government can support an argument that in the Australian
system, as distinct from the American, the Courts can and should leave more of the
problems of adjustment in a federal system to the decision of the electorate . . . .
Similarly, the view that the Crown is indivisible is used to exclude the ... approach
... that the respective executive governments of the Commonwealth and the States
should be treated as completely independent juristic persons. 137
Ibid 482.
Dixon, supra n 36, II~ 117. At 171: "We are next exhorted by the judges to bear in mind two
cardinal features of our political system, namely the unity of the Crown and the principle of
responsible government, and these are said radically to distinguish it from the American Constitution.
And so of course they do; but in no relevant aspect."
134 Latham, "Interpretation of the Constitution" in Else-Mitchell (ed) Essays on the Australian
Constitution (2nd ed 1961) Ch I.
135 Ibid 28-29.
136 Sawer, "State Statutes and the Commonwealth" (1962) I Tas UL Rev 580.
137 Ibid 585.
132
133
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Unfortunately, the tentative suggestion contained in this passage was not
developed in later writings. 138 However, its consistency with the earlier view of
Sir Harrison Moore 139 is evident. It points to the possibility of reading the
Engineers' case in a fundamentally different way from its received interpretation;
as recognising the existence of political constraints within the Constitution and as
enjoining the judiciary to assume a substantially lower profile in the resolution of
constitutional disputes.
This article goes further in developing this theme and suggests that the legalist
and even centralist labels placed on the Engineers' case are unwarranted. In the
view of this writer, the judgment is properly read as being consistent with the
understanding that the central conception of responsible government - the
political process acting as a mechanism of constitutional constraint - is capable
of application to issues of federalism and that the political process should be
given primacy in the Australian Constitution, judicial review playing a subsidiary role. In other words, it is the political process and not the judiciary which
should be predominant. So interpreted, the case supports the ascendancy of one
form of constitutionalism over another.
The substantive part of the Engineers' case judgment begins with a statement
of the role of the High Court in constitutional adjudication. 140 The Constitution is
stated to be a legal, but also a political document:
That instrument is the political compact of the whole of the people of Australia,
enacted into binding law by the Imperial Parliament, and it is the chief and special
duty of this Court faithfully to expound and give effect to it according to its own
terms, finding the intention from the words of the compact, and upholding it
throughout precisely as framed. 141
English authority is then cited for the proposition that "a judicial tribunal has
nothing to do with the policy of any Act which it may be called upon to interpret"
and that it is the one duty of a court "to expound the language of [an] Act in
In a later work, Professor Sawer appears to have recanted:
... the reason given for disregarding U.S. decisions is irrelevant. Neither the existence of
responsible government nor the supposed indivisibility of the Crown affect the basic similarity
between the Australian and U.S. documents on the point which is relevant to the general
argument - namely the distribution of powers between centre and states. There are plenty of
reasons for disregarding U.S. decisions but Engineers' stated only bad ones.
Sawer, Australian Federalism in the Courts (1967) 198. The suggestions in Sawers' 1962 article
(supra n 136) have been dismissed by a number of writers: eg Zines, supra n 4, 10-11; Sackville
'The Doctrine of Immunity of Instrumentalities in the United States and Australia: A Comparative
Analysis" (1969) 7 Melb UL Rev 15, 41-42. Professor Cowen has quoted part of the passage set out
in the text accompanying note 137 with the comment: "If Isaacs meant this when he spoke of
responsible government, his point was quite comprehensible, but he would have done better to phrase
it differently". Cowen, supra n 126, 162.
139 Supra text at nn 130--132.
140 I am concerned here only with the principal constructive reasoning in the judgment. The critical
aspects of the judgment are dealt with in Part 2. The more technical aspects of the judgment are not
material to my discussion.
141 The Engineers' case (1920) 28 CLR 129, 142.
138
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accordance with the settled rules of construction". 142 It is clear from what
follows, however, that the Court did not see the "settled rules of construction" 143
as leading to a literalist or formalist approach to constitutional intepretation. The
twin factors of the indivisibility of the Crown and responsible government are
stated to be critical to an understanding of the Australian Constitution and to
make inapposite the undiscriminating use of American authorities:
For the proper construction for the Australian Constitution it is essential to bear in
mind two cardinal features of our political system which are interwoven in its texture
and, notwithstanding considerable similarity of structural design, including the
depositary of the residual powers, radically distinguish it from the American
Constitution. Pervading the instrument, they must be taken into account in determining the meaning of its language. One is the common sovereignty of all parts of the
British Empire; the other is the principle of responsible government. The combined
effect of these features is that the expression "State" and the expression "Commonwealth" comprehend both the strictly legal conception of the King in right of a
designated territory, and the people of that territory considered as a political
organism. 144
The references to responsible government in the speech of Lord Haldane in
seeking to introduce the bill for the enactment of the Australian Constitution in
the British House of Commons are quoted with approval. Lord Haldane spoke of
the bill as being "permeated through and through with the spirit of the greatest
institution which exists in the Empire" and said that the principle of responsible
government meant that it had "nothing akin to the Constitution of the United
States except in its most superficial features. " 145 There then follow further
references to the "settled rules of construction" and quotations from English and
Privy Council authorities. 146 With respect to the interpretation of a written
constitution, the approach of the Privy Council in relation to the constitutional
document of India is endorsed:
The established Courts of Justice, when a question arises whether the prescribed
limits have been exceeded, must of necessity determine that question; and the only
way in which they can properly do so, is by looking to the terms of the instrument by
which, affirmatively, the legislative powers were created, and by which, negatively,
they are restricted. If what has been done is legislation, within the general scope of the
142 /bid quoting Vacher & Sons Ltd v London Society of Compositors [1913] AC 107, 118. In
context, these words are much more a statement of judicial deference to legislative will than they are
a statement of a strict or literal method of statutory construction. The words were uttered by Lord
Macnaghten in the course of a speech in the House of Lords holding that a provision of the Trade
Disputes Act 1906 (UK) withdrawing from the jurisdiction of any Court "an action against a trade
union . . . in respect of any tortious act alleged to have been committed by or on behalf of the trade
union" (s 4(1)) was general in its application and should not be limited to tortious acts committed in
contemplation or furtherance of a trade dispute. In the same paragraph of his speech, Lord
Macnaghten said:
Some people may think the policy of the Act unwise and even dangerous to the community. Some
may think it at variance with principles which have long been held sacred . . . that may be a
matter for private judgment. ... It is, I apprehend, as unwise as it is unprofitable to cavil at the
policy of an Act of Parliament, or to pass a covert censure on the Legislature.
143 Supra n 141, 142.
144 The Engineers' case (1920) 28 CLR 129, 146-147.
145 Ibid 147.
146 Ibid 148-152.
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affirmative words which give the power, and if it violates no express condition or
restriction by which that power is limited . . . , it is not for any Court of Justice to
inquire further, or to enlarge constructively those conditions and restrictions. 147
All this is preliminary to the Court turning to the actual task of interpreting the
Australian Constitution. Before getting to that point, however, the Court further
elaborates its reasons for rejecting the American doctrines which had been
incorporated under the doctrine of "necessity". 148 In attacking the vagueness and
"political" 149 nature of that doctrine, it turns to the meaning of "necessity":
It means the necessity of protection against the aggression of some outside and
possibly hostile body. It is based on distrust, lest powers, if once conceded to the least
degree, might be abused to the point of destruction. 150
In an important passage which must be linked with the previous statements about
the indivisibility of the Crown and responsible government, the Court continues:
But possible abuse of powers is no reason in British law for limiting the natural force
of the language creating them . . . . The non-granting of powers, the expressed
qualifications of powers granted, the expressed retention of powers, are all to be taken
into account by a Court. But the extravagant use of the granted powers in the actual
working of the Constitution is a matter to be guarded against by the constituencies and
not by the Courts. When the people of Australia, to use the words of the Constitution
itself, "united in a Federal Commonwealth," they took power to control by ordinary
constitutional means any attempt on the part of the national Parliament to misuse its
powers. If it be conceivable that the representatives of the people of Australia as a
whole would ever proceed to use their national powers to injure the people of
Australia considered sectionally, it is certainly within the power of the people
themselves to resent and reverse what may be done. No protection of this Court in
such a case is necessary or proper. 151
There are then a number of statements and citations designed to reinforce the
point that the indivisibility of the Crown prevented any notion of dual
sovereignty from arising under the Australian Constitution. The Constitution and
laws validly made under it "bind, so far as they purport to do so, the people of
every State considered as individuals or as political organisms called States - in
other words, bind both Crown and subjects". 152 The reasons for rejecting the
doctrine of immunity of instrumentalities are then summarised:
The nature and principles of legislation . . . , the nature of dominion self-government
and the decisions just cited entirely preclude . . . an a priori contention that the grant
of legislative power to the Commonwealth Parliament as representing the will of the
whole of the people of all States of Australia should not bind within the geographical
area of the Commonwealth and within the limits of the enumerated powers,
ascertained by the ordinary process of construction, the States and their agencies as
representing separate sections of the territory. 153
147
148
149
!5o
151
152
!53
Ibid
Ibid
Ibid
Id.
Ibid
Ibid
Id.
149, quoting R v Burah (1878) 3 AC 889, 904-905.
15{}-151.
151.
151-152.
153.
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Foundations of Australian Federalism -Judicial Review
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In an important, but much neglected passage, it is then stated:
It is undoubted that those who maintain the authority of the Commonwealth
Parliament to pass a certain law should be able to point to some enumerated power
containing the requisite authority. But we also hold that, where the affirmative terms
of a stated power would justify an enactment, it rests upon those who rely on some
limitation or restriction upon the power, to indicate it in the Constitution. 154
Finally, for present purposes, there follows the already quoted statement that it is
"a fundamental and fatal error to read s.l07 as reserving any power of the
Commonwealth that falls fairly within the explicit terms of an express grant in
s.51, as that grant is reasonably construed, unless that reservation is as explicitly
stated. " 155
Far from being limited to a strict literalism or formalism, the "settled rules of
construction" 156 have led by the end of the Engineers' case to a consideration of
"the nature of dominion self-government". 157 The references to the indivisibility
of the Crown and responsible government are not mere rhetoric. They speak to
the heart of that conception. In Commonwealth v Kreglinger & Fernau Ltd 158
Isaacs J referred again to the responsible government as "part of the fabric on
which the written words of the Constitution are superimposed" 159 and as a
principle which must "be taken into account by a Court of Jaw in construing
every modem Constitution of a self-governing British community." 160 In the
Woo/tops case 161 he noted the "impossibility of regarding the mere written words
of the Constitution as affording the only test of validity": 162
Those written words have to take into account the circumstances of the moment and
the extent of constitutional development. The doctrine of responsible government, for
instance, is invisibly but none the less inextricably and powerfully interwoven with
the texture of the written word, and any interpretation of the document which
disregarded the implication of that doctrine would be false and misleading. 163
The failure to appreciate the significance of responsible government and the
indivisibility of the Crown to the Engineers' case decision has stemmed, I think,
from an unduly narrow understanding of what responsible government means
and from an unduly abstracted conception of the indivisibility of the Crown. The
specific relationship of the executive to the legislature has no direct bearing on
the judicial review of legislative powers. But the relationship of each to the
Crown, and most importantly, to the people, have significant implications when
applied to the federal system. The critical point is that in the Australian federal
system it is the same people and the same Crown who constitute the Commonwealth and the States. The people acting in one political capacity are not likely to
seek to cause harm to themselves in another political capacity. If they do then it
Ibid 154.
/d.
156 Ibid 142.
157 Ibid 153.
158 (1926) 37 CLR 393.
159 Ibid 413.
160 Ibid 411.
161 Commonwealth v Colonial Combing and Weaving Co Ltd (the Woo/tops case) ( 1922) 31 CLR
421.
162 Ibid 446.
163 /d.
154
155
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[VOLUME 17
is well within their own power to remedy the situation. Responsible government
is representative government writ large. It is government constrained by the
political process and not by an internal division of functions. The expression of
the will of the people in the normal workings of the political process constitutes
the "ordinary constitutional means" of policing government.
This recognition holds important consequences for the position of the judiciary
within the constitutional framework. In R v Hibble; ex parte Broken Hill
Proprietary Co Ltd 164 decided in the same year as the Engineers' case Issacs J
and Rich J said:
Beyond controversy, the Constitution controls Parliament. But it also controls this
Court; and it controls this Court in various ways. First, it is unquestionably our duty,
where occasion strictly calls for it, to declare regardless of consequences the preeminence of the Constitution over any attempted legislation unauthorized. But it is
equally the duty of the Court where its judicial action is invoked, to respect and, if
necessary, to enforce the directions of Parliament as the sole interpreter of the national
will unless such directions are upon due occasion and argument solemnly adjudged to
be invalid. 165
No-one could disagree. But, of course, it is a question of emphasis. In that case,
their Honours were concerned to de-emphasize the position of the High Court. In
a later case, Federal Commission ofTaxation v Munro, 166 Isaacs J re-emphasized
the position of the legislature.
The Constitution, it is true, has broadly and, to a certain extent, imperatively
separated the three great branches of government, and has assigned to each, by its
own authority, the appropriate organ. But the Constitution is for the advancement of
representative government, and contains no word to alter the fundamental features of
that institution. 167
In a vitally important but almost forgotten passage in the same case, his Honour
continued:
It is always a serious and responsible duty to declare invalid, regardless of
consequences, what the national Parliament, representing the whole people of
Australia, has considered necessary or desirable for the public welfare . . . .
Nullification of enactments and confusion of public business are not lightly to be
introduced. Unless, therefore, it becomes clear beyond reasonable doubt that the
legislation in question transgresses the limits laid down by the organic Jaw of the
Constitution, it must be allowed to stand as the true expression of the national will. 168
He stated the question for the Court in approaching challenged Commonwealth
legislation as being: "Has Parliament, on the true construction of the [legislative]
enactment, misunderstood and gone beyond its constitutional powers?" 169 In
other words, where there is doubt about the limits of constitutional power, the
national Parliament should be given the benefit of the doubt. The Court should
act on the presumption that Parliament did not intend to enact unconstitutional
(1920) 28 CLR 456.
Ibid.
166 (1926) 38 CLR 153.
167 Ibid 178.
168 Ibid 180. This statement was specifically approved by the Privy Council: Shell Company of
Australia Ltd v The Federal Commissioner of Taxation ( 1930) 44 CLR 530, 545. See also The Queen
v Quinn; ex parte Consolidated Foods Corporation (1977) 138 CLR I, 8.
169 /d.
164
165
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Foundations of Australian Federalism -Judicial Review
189
legislation and that presumption should prevail unless the language of the statute
is so "intractible" as to be incapable of being consistent with it. 170
This approach is very different from Sir Owen Dixon's legalism. 171 It accepts
the essential fact that legalism purports to deny: that there may be doubt as to
whether legislation transgresses constitutional limits. The boundaries of power
are not always clear and the judiciary cannot always draw rigid lines of
demarcation between the constitutional and the unconstitutional. It places
representative government at the centre of the Constitution and imbues it with a
capacity for constitutional judgment which must be respected by the Courts. To
hold an act of the national Parliament invalid is a serious matter. It must be
approached not on the basis of a rarified comparison of Act and Constitution, but
on the basis of reviewing a constitutional decision already made by a responsible
organ of government representing the whole of the people of Australia. Such
constitutional decisions should not be disturbed unless they are manifestly
unsupportable. Commonwealth legislation should be upheld unless it is "clear
beyond reasonable doubt" 172 that it cannot be sustained within constitutional
limits.
The wider implications of responsible government - trust of the political
process and judicial deference to legislative will - and their significance for the
interpretation of the Australian Constitution have never been entirely lost since
the departure of Isaacs 1 173 from the High Court bench in 1931. In the First
Uniform Tax case 174 decided ten years later, the Court upheld a legislative
scheme which effectively allowed for the financial dominance of the Commonwealth over the States. Although he saw the possibility of such a scheme
bringing about "the end of the political independence of the States", 175 Latham
CJ made it clear that he did not see a legal remedy as necessary or appropriate:
Such a result cannot be prevented by any legal decision. The determination of the
propriety of any such policy must rest with the Commonwealth Parliament and
ultimately with the people. The remedy for alleged abuse of power to promote what
are thought to be improper objects is to be found in the political arena and not in the
Courts. 176
The same attitude continues to underlie the general rule that it is not for the
Courts to inquire into the wisdom or propriety of government action within an
acknowledged area of legislative power. 177 It can be seen in the narrow
interpretation given by the High Court to the few guarantees of civil liberties
contained in the Constitution 178 and its refusal to follow United States'
/d.
Supra n 133.
172 Federal Commissioner of Taxation v Munro (1926) 38 CLR 153, 180.
173 Sir Isaac Isaacs served as Chief Justice from March 31 , 1930 to January 21, 1931.
174 South Australia v Commonwealth (the First Uniform Tax case) (1942) 65 CLR 373.
175 Ibid 429.
176 /d. Sir Owen Dixon was absent from the bench at the time as ambassador to Washington.
Although upholding the essentials of the scheme in Victoria v Commonwealth (the Second Uniform
Tax case) (1957) 99 CLR 575, Sir Owen hinted that had the matter been before the Court afresh, he
would have inclined to a narrower view of Commonwealth power: Ibid 609.
177 Murphyores Incorporated Pty Ltd v Commonwealth (1976) 136 CLR I; Actors and Announcers
Equity Association of Australia v Fontana Films Pty Ltd (1982) 150 CLR 169.
178 Australian Constitution, s 80 (trial by jury) R v Federal Court of Bankruptcy; ex parte
Lowenstein (1938) 59 CLR 556; Kingswell v R (1985) CLR 264, s 116 (freedom of religion) A-G
(Vic) ex rei Black v Commonwealth (1981) 146 CLR 559.
170
171
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precedents suggesting that section 24, which requires members of the House of
Representatives to be "directly chosen by the people of the Commonwealth",
should be interpreted as requiring equal voting power for electors. 179 It is also
consistent with the reluctance of the Court to grant interlocutory injunctions in
cases where Commonwealth legislation is challenged. 180 However, it is the
legacy of the long period of revived legalism under Sir Owen Dixon that the
wider implications of responsible government remain largely ignored in the
reasoning of the High Court. Despite its increasing willingness to give an
expansive interpretation to Commonwealth legislative power, and with the
exception of a self-conscious exploration of alternative approaches under section
92, 181 the Court still tends to cast its decisions in the language of legalism. The
Court continues to draw lines. The lines continue to expand, but they purport to
mark a defined perimeter.
2) Lessons from the Experience of the United States
The era of constitutional interpretation in the United States during which the
Commonwealth of Australia came into being, and from which the early High
Court took its lead, was one of limited duration. In its federalism aspects its
origins may be seen to lie in the separatist tensions of the Civil War and in the
earlier writings and oratory of John C. Calhoun, although in its wider context it is
generally associated with the rise of legal formalism and the dominance of
laissez-faire liberalism in the second half of the nineteenth century. 182 Its demise
came more than a decade after the Engineers' case in the New Deal period of the
1930s. Ironically, the precise methodology which was rejected in the Engineers'
case as being "political" and indeterminate was rejected in the United States as
being excessively formal and mechanistic. 183 As I have tried to show in the
Australian context, it was necessarily both.
What is significant for present purposes, however, is the pattern of thinking
about federalism which has prevailed apart from that era. That pattern is the one
established by Marshall CJ in McCulloch v Maryland 184 and Gibbons v
179
Attorney-Genera/ (Cth); ex re McKinlay v Commonwealth, (1975) 135 CLR I, 23-24.
°Castlemaine Tooheys Ltd v South Australia (1986) 161 CLR 543; Davids Holdings Pty Ltd v
18
Byrnes (1987) 71 ALR 251. It may further be consistent with the argument of Murphy 1 for the
existence of a presumption of constitutionality; the Tasmanian Dam case ( 1983) 158 CLR I, 502504. (See generally Burmester, "The Presumption of Constitutionality" (1983) 13 FL Rev 277) and
the occasional suggestions by Brennan J that some issues of characterization should be regarded as
"political questions" eg Gerhardy v Brown (1985) 159 CLR 70, 137-139.
181 Eg North Eastern Dairy Co Ltd v Dairy Industry Authority of New South Wales (1975) 134 CLR
559; Permewan Wright Consolidated Pty Ltd v Trewhitt ( 1979) 145 CLR I. See now Cole v Whitfield
(1988) 78 ALR 42, decided after the preparation of the text of this article.
182 Corwin, The Commerce Power versus States' Rights (1936); McCurdy, "Justice Field and the
Jurisprudence of Government- Business Relations: Some Parameters of Laissez Faire Constitutionalism 1863-1897" in Friedman and Scheiber (eds) American Law and the Constitutional Order
(1978), 246-265.
183 Eg Freund, "Umpiring the Federal System" (1954) 54 Columbia L Rev 561.
184 17 US 159 (1819). Unfortunately, McCulloch v Maryland has received a very bad press in
Australia because of its association with pre-Engineers' case doctrines; eg Higgins, "McCulloch v
Maryland in Australia" (1905) 18 Harv L Rev 559. However, the case as interpreted in Collector v
Day, supra n 89, is very different from the case as now interpreted; eg Stone, Seidman, Sunstein and
Tushnet, Constitutional Law (1986), 58-61.
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Foundations of Australian Federalism -Judicial Review
191
Ogden. 185 Having asserted the legitimacy of judicial review in Marbury v
Madison, 186 Marshall demonstrated in these cases that its application to issues of
federalism would vary between State and national powers. National powers were
to be broadly construed and great deference was to be paid to the judgment of
Congress. State powers infringing on matters of national concern were to be
strictly curtailed. The justification for this discrepancy, according to Marshall,
was twofold. First, national powers were specifically enumerated in the
Constitution and were stated in broad and general terms. It was in the nature of a
constitution as an enduring charter of government that they should receive a
liberal construction. 187 State powers were not so enumerated and were referred to
in the Constitution only in a residuary way. Secondly, there was a difference in
the nature of the constituencies of national and State legislatures. The national
legislature, representing the nation as a whole, ordinarily could be expected to
pay due regard to all constituent regional interests. 188 State legislaures, representing only their local regions, ordinarily could not be expected to duly consider
national interests. 189
Twentieth century developments reflect this broad understanding. In Wickard
v Filburn 190 in dealing with Congressional power under the commerce clause, 191
the Supreme Court said that Marshall had described that power in Gibbons v
Ogden "with a breadth never yet exceeded" and had "made emphatic the
embracing and penetrating nature of this power by warning that effective
restraints on its exercise must proceed from political rather than judical
processes." 192 In a later case, Heart of Atlanta Motel v United States, 193 the court
stated the only questions to be considered in determining whether Congressional
legislation fell within the ambit of the commerce clause to be ( 1) whether
Congress had a "rational basis" for finding that the particular activity regulated
by the legislation affected commerce, and (2) if so, whether the means it selected
to eliminate the evil it saw were reasonable and appropriate. 194 This must be
contrasted with the attitude of close scrutiny adopted by the Court in relation to
the detemination of the constitutionality of State action capable of infringing the
national interest in the freedom of interstate movement protected by the dormant
area of the commerce clause 195 and the privileges and immunities clause of
Article IV of the Constitution. 196
185
9 Wheat I (1824).
186
Supra n 30.
McCulloch v Maryland 17 US 159 202-207 (1819); Gibbons v Ogden 9 Wheat I 187-191
187
(1824).
188 McCulloch v Maryland 17 US 159 198-199, 209-211 (1819).
189 Ibid 209-211.
190 317 US Ill (1942).
191 United States' Constitution, Art I, s 8.
192 317 US Ill 120 (1942).
193 us 241 (1964).
194 Ibid 258-259. See also Hodel v Virginia Surface Mining & Reclamation Association 452 US
264 (1981).
195 Eg Philadelphia v New Jersey 437 US 617 (1978); Hunt v Washington Apple Advertising
Commission 432 US 333 (1977).
196 United States' Constitution, Art IV, s 2. Eg Supreme Court of New Hampshire v Piper 470 US
274 (1985).
192
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The formulation adopted by the Supreme Court in Heart of Atlanta v United
States 197 owes much to the influence of James Bradley Thayer's 1893 article
"The Origin and Scope of the American Doctrine of Constitutional Law". 198
Thayer, described by Felix Frankfurter as the "great master of constitutional
law", 199 was the first to attack openly the view of the role of the judiciary as
involving the exposition and articulation of a single constitutional truth. His
emphasis was on the inevitability of choice in constitutional adjudication and on
the consequences which the recognition of such choice had for the manner of
exercise of judicial review:
If [the judiciary's] duty were in truth merely and nakedly to ascertain the meaning of
the text of the constitution and of the impeached Act of the legislature, and to
determine as an academic question, whether in the court's judgment the two were in
conflict, it would, to be sure, be an elevated and important office, one dealing with
great matters, involving large public considerations, but yet a function far simpler
than it really is. Having ascertained all this, yet there remains a question- the really
momentous question- whether, after all, the court can disregard the Act. It cannot
do this as a mere matter of course - merely because it is concluded that upon a true
and just construction the law is unconstitutional. ... it can only disregard the Act
when those who have the right to make laws have not merely made a mistake, but
have made a very clear one- so clear that it is not open to rational question. That is
the standard of duty to which the courts bring legislative acts; that is the test which
they apply - not merely their own judgment as to constitutionality, but their
conclusion as to what judgment is permissible to another department which the
constitution has charged with the duty of making it. 200
For Thayer, as later for Isaacs in Australia, a distaste for the predominance of a
purely judicial choice was accompanied by an assertion of the constitutional
competence of the legislature:
This rule recognizes that, having regard to the great, complex ever-unfolding
exigencies of government, much which will seem unconstitutional to one man, or
body of men, may reasonably not seem so to another; that the constitution often
admits of different interpretations; that there is often a range of choice and judgment;
that in such cases the constitution does not impose upon the legislature any one
specific opinion, but leaves open this range of choice; and that whatever choice is
rational is constitutional. . . .
[A] court cannot always ... say that there is but one right and permissible way of
construing the constitution. When a court is interpreting a writing merely to ascertain
or apply its true meaning, then, indeed, there is but one meaning allowable; namely,
what the court adjudges to be its true meaning. But when the true question is not that,
but whether certain acts of another department, officer, or individual are legal or
permissible, then this is not true. In the class of cases which we have been
considering, the ultimate question is not what is the true meaning of the constitution,
but whether legislation is sustainable or not. 201
470 us 274 (1985).
(1893) 7 Harv L Rev 129.
199 Quoted in Levy (ed), Judicial Review and the Supreme Court (1967) 43.
200 JB Thayer, "The Origin and Scope of the American Doctrine of Constitutional Law "( 1893) 7
Harv L Rev 129, 143-144.
201 Ibid 144, 150.
197
198
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Foundations of Australian Federalism -Judicial Review
193
Thayer's "ultimate question" is closely related to Isaacs J's question in
Federal Commissioner of Taxation v Munro 202 whether Parliament has "misunderstood and gone beyond its constitutional powers", 203 and the statement in the
Engineers' case that "where the affirmative terms of a stated power would justify
an enactment, it rests upon those who rely on some limitation or restriction upon
the power, to indicate it in the Constitution. " 204
In another influential academic article, published in 1954, Herbert Wechsler
went further towards articulating a theory of judicial restraint applicable
specifically to issues of federalism. If Thayer's argument was a development of
Marshall's first justification for a deferential judicial attitude towards the
exercise of national legislative power (the broad and general nature of the words
ofthe Constitution), Wechsler's argument was a development ofthe second. The
article, entitled "The Political Safeguards of Federalism", 205 emphasized the
institutional structure of federalism, and particularly the role of the States in the
composition and selection of national government, as a far more important
determinant of the actual extent of national intervention in local affairs than the
formal distribution of power. His conclusion was that the national political
process in the United States was intrinsically well adapted to restraining the
untoward expansion of national power into the domain of the States, and that the
role of the Supreme Court was necessarily restricted. He wrote:
The prime function envisaged for judicial review - in relation to federalism - was
the maintenance of national supremacy against nullification or usurpation by the
individual states, the national government having no part in their composition of their
councils .... And except for the brief interlude that ended with the crisis of the
thirties, it is mainly in the realm of such policing of the states that the Supreme Court
has in fact participated in determining the balances of federalism. This is not to say
that the Court can decline to measure national enactments by the Constitution when it
is called upon to face the question in the course of ordinary litigation . . . It is rather
to say that the Court is on its weakest ground when it opposes its interpretation of the
Constitution to that of Congress in the interests of the states, whose representatives
control the legislative process and, by hypothesis, have broadly acquiesced in
sanctioning the challenged Act of Congress. 206
Primary authority for managing the federal system lay with Congress, the role of
the Supreme Court being secondary and limited.
The recent pronouncement of the Supreme Court on the issue of the ambit of
the commerce power is a powerful affirmation of this view. In Garcia v San
Antonio Metropolitan Transit Authority207 the majority of the Court employed
language reminiscent of that in the Engineers' case to overrule "as unsound in
principle and unworkable in practice"208 a recent line of authority which had
sought to mark out an area of state immunity from national regulation by
202
(1926) 38 CLR 153.
203
Ibid 180.
The Engineers' case (1920) 28 CLR 129, 154. Isaacs J appears to have been well aware of
204
developments in the United States and at times referred to those developments in support of his own
views: eg the Engineers' case, 28 CLR 129, 146; Federal CommissionerofTaxation v Munro (1926)
38 CLR 153, 180.
205 (1954) 54 Columbia L Rev 543.
206 Ibid 559.
207 469 us 528 (1985).
208 Ibid 546.
194
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reversion to the concept of "traditional governmental functions". 209 The reliance
on the vagaries of history inherent in such a concept was said to result in
"linedrawing of the most arbitrary sort"210 and to invite "an unelected federal
judiciary to make decisions about which state policies it favors and which ones it
dislikes." 211 In the Court's opinion, state interests "are more properly protected
by procedural safeguards inherent in the structure of the federal system than by
judicially created limitations on federal power." 212 Echoing Wechsler, the Court
stated that "the principal and basic limit on the federal commerce power is that
inherent in all congressional action - the built-in restraints that our system
provides through state participation in federal governmental action." 213 While
not denying that substantive restraints on the federal commerce power may exist,
the Court stated that any such restraint must find its justification in the procedural
nature of that basic limitation and must be tailored to compensate for the possible
failings of the national political process. 214
This centralizing of the political process in the resolution of federalism issues
has occurred in the United States in spite of the strong historical commitment
within that country to judicial review and the separation of governmental powers
and in spite of continued adherence to the concept of separate state and federal
sovereignty. Although sovereignty in the case of both the nation and the states is
said to lie with "the People", a highly abstracted understanding of who "the
People" are continues to inhibit the overt recognition of a common political
sovereignty. 215 The argument is normally cast in terms of the states themselves
being represented in the composition and selection of the national government, 216
ignoring the important fact that amendments to the United States' Constitution in
this century increasingly have meant that it is more correctly the people grouped
by States who are represented. 217 The political process has remained central to
thinking about issues of federalism in the post-New Deal period notwithstanding
increased judicial activism in the enforcement of civil rights under the Constitution.218
Ibid See National League of Cities v Usery 426 US 833 (1976).
Ibid 544.
211 Ibid 546.
212 Ibid 552.
213 Ibid 556.
214 Ibid 554.
215 Rapaczynski, "From Sovereignty to Process: The Jurisprudence of Federalism after Garcia"
(1985) 8 The Supreme Court Review 341, 346-359.
216 Eg Garcia v San Antonio Metropolitan Transit Authority 469 US 528 (1985), 55~551;
Wechsler, ''The Political Safeguards of Federalism" (1954) 54 Columbia L Rev 543, 558.
217 United States' Constituion, especially Amendments XVII, XIX, XXIV. Cf Ely, Democracy
and Distrust (1980) 98-99.
218 Commencing with Brown v Board of Education 347 US 483 (1954). The problem of
reconciling this judicial activism with democratic traditions (Alexander Bickel's "countermajoritarian difficulty") is the starting point for modem constitutional theory: Bickel, The Least
Dangerous Branch (2nd ed 1968) 16. For two recent influential attempts at reconciliation, see, Ely,
Democracy and Distrust (1980) 98-99 (arguing for a representation reinforcing model of judicial
review) and Perry, The Constitution, the Courts, and Human Rights (1982) (seeking to cast the
Supreme Court in the role of the high priesthood of a form of civil religion). See generally, Thomson,
"An Endless but Productive Dialogue: Some Reflections on Efforts to Legitimize Judicial Review"
(1982) 61 Texas Law Review 743. For a critique despairing of any solution see Brest, ''The
Fundamental Rights Controversy: The Essential Contradictions of Normative Constitutional Scholarship" (1981) 90 Yale U 1063.
209
210
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Foundations of Australian Federalism -Judicial Review
195
The experience in the United States strengthens the argument for the approach
to constitutional interpretation claimed to be implicit in the Engineers' case. If
the institutional political process is capable of recognition as a mechansim of
constitutional constraint operating in federalism issues under the very constitution which was used as a model for the federalism aspects of the Australian
Constitution, then the idea that federalism inherently requires an active judicial
role in the Constitution becomes untenable. Furthermore, if the ordinary politics
of federalism can be viewed in such a benign way even under a constitution
conceived largely as a means of keeping the forces of politics in check and even
in spite of a strong ongoing commitment to judicial intervention in democratic
processes, the embracing of such a view of federal politics in a system otherwise
committed, in accordance with the precepts of responsible government, to the
acceptance of ordinary political outcomes is hardly revolutionary. 219 Finally, if
such a view is possible even where State and national governments are conceived
as having separate sovereignty, it could only be more acceptable where there is
an understanding of common sovereignty, and especially of the common
political sovereignty of the national electorate.
4 CONCLUSIONS AND SPECULATIONS
The traditional legalist explanations of the scope and purpose of judicial
review in Australia are inadequate, first because they rely on a model of neutral
judicial decision-making which is impossible to achieve, and, secondly, because
they ignore the nature and structure of the political system to which the legal
powers and restraints are attached.
The problem presented is one of developing a theory of judicial review which
is consistent with the dual nature of the Australian Constitution and the
respective natures of the legal and political processes. Constitutional adjudication does not permit the complete separation of law and politics. However, to
maintain legitimacy in a democratic society, law must be seen to be in some way
different from politics. Strict and complete legalism is unlikely to continue to
maintain the confidence of parties to constitutional disputes. On the other hand,
the "racy dogmatism" advocated some years ago as an alternative by Gareth
Evans 220 is wholly objectionable. It makes law too much like politics. Even
worse, it makes representative government openly susceptible to the whims of an
unelected elite.
219 I am aware of the argument that the existence of responsible government and a strong party
system in Australia may result in the political system affording less protection to state interests than in
the United States, thereby making judicial review more necessary in Australia (eg Zines, supra n 4,
384-385; Barrett, "A Parliamentary System of Government in a Federation; The Australian
Expeience" (1985) 19 UC Davis L Rev 153). To some extent, the argument rests on assumptions I am
seeking to attack: that the Australian federal system follows that of the United States in seeking to
provide a check on political power and that there is an "appropriate" federal balance which the
judiciary can discern and enforce. Beyond that, the argument assumes that the legislative outcomes of
individual representatives and senators acting relatively independently in the Congressional deliberative process will better reflect state concerns than will those of a cohesive Parliamentary party
sensitive to regional electoral responses.
220 Evans, "The Most Dangerous Branch? The High Court and the Constitution in a Changing
Society" in Hambly and Goldring (eds) Australian Lawyers and Social Change (1976) 13-76.
196
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Australian constitutional law seeks neutrality. Yet it cannot avoid the necessity
of coming to grips with the reality of the choices it currently leaves to the
judiciary. So much has been tacitly acknowledged by the present Chief Justice,
Sir Anthony Mason. In his recently published lecture on the role of a
constitutional court in a federation, 221 he has spoken of the need for the High
Court, if it is to continue its present tentative moves away from legalism, to
proceed by way of providing "objective and principled elaboration" for its
decisions. He explained the phrase "objective and principled elaboration" to
mean "reasons that deal fairly and impartially with the competing considerations,
resting wherever possible on a principle of appropriate generality, even though
the full reach of the principle must be left for later examination". 222
This prescription bears a close resemblance to the argument of Herbert
Wechsler in the United States in his appeal for "neutral principles" in constitutional adjudication. 223 Wechsler argued that in facing what he saw as the
inescapable choice among competing values in deciding constitutional issues,
"the main constituent of the judicial process is precisely that it must be genuinely
principled, resting with respect to every step that is involved in reaching
judgment on analysis and reasons quite transcending the immediate result that is
achieved". 224
The great difficulty is to give substantive content to such a prescription. It
requires at a minimum that a court proceed in constitutional cases in accordance
with principles which it is prepared to apply in other cases raising similar issues
and not according to ad hoc evaluation. But if no more could be said of
"objective and principled elaboration", 225 then it could take us little further than
legalism. If values such as "the national interest" and "the federal balance" each
possess appropriate generality to found a principled decision then there remains,
in the words of Alexander Bickel, "to ask the hardest questions. Which values,
among adequately neutral and general ones, qualify as sufficiently important or
fundamental or what-have-you to be vindicated by the Court against other values
affirmed by legislative acts? And how is the Court to evolve and apply them?" 226
There would be a stripping away of a legalist facade only to expose openly the
recurring dilemma of a choice of substantive policies. The guidance provided to
the judiciary in performing its function could be minimal. In this respect, there
could be little more than a restatement of the problem, much less a solution.
If, however, it were possible to discern values or policies in the constitution
which transcend the inevitable tension between centralist and decentralist
tendencies and if those values or policies were capable of offering at least some
guidance to the judiciary in approaching the task of constitutional adjudication,
then the search for a meaningful measure of judicial neutrality as informing
"objective and principled elaboration" 227 will not have been in vain. If,
221 Mason, "The Role of a Constitutional Court in a Federation: A Comparison of the Australian
and the United States Experience" (1986) 16 FL Rev I.
222 Ibid 28.
223 Wechsler, "Toward Neutral Principles of Constitutional Law" in Wechsler, Principles, Politics
and Fundamental Law (1961) ~8.
224 Ibid 21.
225 Mason, supra n 221, 28.
226 Bickel, The Least Dangerous Branch (2nd ed 1968) 55.
227 Mason, supra n 221, 28.
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Foundations of Australian Federalism- Judicial Review
197
furthennore, those paramount values or policies could be derived from or
otherwise related to the nature of the political process in its operation as a
mechanism of constitutional constraint, then we might also have moved closer to
a reconciliation of the two deep constitutional traditions embodied in the
Australian Constitution.
My reading of the Engineers' case and of the experience in the United States
(remember it was the same Wechsler who spoke of the need for neutral principles
in constitutional adjudication who also stressed the political safeguards of
federalism) suggest that the starting point lies in the recognition of the centrality
of the political process in the Australian Constitution. With the people of
Australia acting by "ordinary constitutional means" finnly acknowledged as the
principal constraint on government power, the judicary is relieved of the
continuing necessity of mapping out rigid lines of demarcation.
Such an approach need hardly be considered controversial. In the fonn of
responsible government, the political process occupies a position far more
central within the Australian Constitution than it does within the Constitution of
the United States. Attribution to Commonwealth and State Parliaments of the
capacity to make responsible decisions relating to the extent of their constitutional powers would be merely to accord to them in constitutional cases a
small measure of the judicial respect to which they are otherwise automatically
due.
A next step may be to recognize the limitations of the political process and to
consider whether judicial review might not be fashioned to accommodate them.
The political constraints inherent in responsible government have weaknesses
which become heightened when applied to a federal context. Representative
government carries the danger that the interests of those who are not represented
will not be taken into account. Majoritarian government carries the danger that
minority interests will not be given sufficient weight in decision-making. Taken
together, these weaknesses may be seen to underlie a number of the specific
restraints on government power written into the Australian Constitution and
could be used to provide guidance in relation to their interpretation. 228
The judiciary might in this way be freed to assume a role closer to that which
the tenn "judicial review" initially suggests: a role of reviewing rather than
containing the decisions of other responsible government actors. In relation to
the review of Commonwealth legislation, the adoption of a deferential standard
of review might ordinarily be appropriate. In the absence of special considerations to the contrary, it should be sufficient to sustain Commonwealth legislation
that there appears to be a reasonable and demonstrable connection with an
affinnative grant of power in the Constitution, the words of which are reasonably
capable of bearing a construction which would uphold its validity. 229 A Court
should not lightly substitute its own view for that of the Commonwealth
Parliament which is representative of and responsive to the whole of the
Australian people. In relation to State legislation impinging on matters of
228 Eg Section 90 (making Commonwealth power over customs, excise and bounties exclusive);
s 92 (requiring trade, commerce and intercourse among the States to be "absolutely free"); s 99
(prohibiting certain preferential Commonwealth laws, see infra o 231); and s 117 (prohibiting
discrimination on the basis of State residence).
229 Supra text at on 199-200.
198
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national or inter-state concern, a less deferential standard of review might be
called for. A State Parliament might not generally be expected to consider the
interests of the nation as a whole. So, for example, in determining whether a law
unduly impedes the national interest in the freedom of inter-state trade guaranteed by section 92, there may be a strong argument for treating Commonwealth
legislation as having prima facie a greater claim to validity than corresponding
State legislation. 230
There may, however, be cause for closer judicial scrutiny of Commonwealth
legislation in cases where there is a danger of minority interests being given
insufficient weight in decision-making. 231 The implied prohibition in the State
Banking case 232 against Commonwealth laws singling out State governments or
their instrumentalities for special burdens could possibly be assimilated on this
basis. However, the mere fact of discrimination could not be decisive. It would
merely call for a closer examination of the law by the judiciary in the light of the
interests seen to be protected by the particular constitutional doctrine under
consideration.
As a matter of institutional capacity, the judiciary is adequately adapted to
such a role. Mr Justice Brennan has pointed out that judges are generally much
more comfortable dealing with matters of fairness and procedure than with
matters of substantive policy. 233 Their familiar roles in areas such as administrative law and the oversight of fiduciaries furnish ready examples.
In summary, the role advocated for the High Court is one which seeks to
reconcile the potentially competing forms of constitutionalism identifiable within
the Australian Constitution but which in doing so, accepts the institution of
responsible government as foundational. The judiciary would on this view accept
the primacy of the federal political process but be prepared to be responsive to its
weaknesses.
°
23 Cf Permewan Wright Consolidated Pty Ltd v Trewhitt (1979) 145 CLR I, 37-38. See now Cole
v Whitfield (1988) 78 ALR 42, decided after the preparation of the text of this article.
231 Eg there may be cause for re-examination of the presently almost obsolete prohibition in s 99 of
Commonwealth laws or regulations of trade, commerce or revenue giving preference to one State or
part of a State over another State or part of a State: Rose, "Discrimination, Uniformity and
Preference" in Zines (ed), Commentaries on the Australian Constitution (1977) 219-229.
232 Supra n 91.
233 Brennan, "The Purpose and Scope of Judicial Review" (1986) 2 Australian Bar Review 93, 9596 (dealing with judicial review of the executive branch of government).