Australias constitutional government 9780409341126, 0409341126

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AUSTRALIA’S CONSTITUTIONAL GOVERNMENT Professor Jack Richardson AO (1920–2011) Edited by Matthew Stubbs

LexisNexis Butterworths Australia

2016

AUSTRALIA

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National Library of Australia Cataloguing-in-Publication entry Author: Title: ISBN: Notes: Subjects: Other Authors/Contributors: Dewey Number:

Richardson, J. E. (Jack Edwin), 1920–2011. Australia’s constitutional government. 9780409341126 (pbk). 9780409341133 (ebk). Includes index. Constitutional history — Australia. Constitutional law — Australia. Australia — Constitutional history. Australia — Politics and government. Stubbs, Matthew, editor. 342.94029

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Foreword It is a singular privilege for me to be asked to make introductory remarks about this new literary work.

The Work The author, Jack Richardson, was a good friend. Shortly before his death we were celebrating his 90th birthday. He told me that he had been working on a book on constitutional law soon to be published. His death intervened. Knowing the spectrum of his life I expected it would be very special. Having now received a copy edited by Matthew Stubbs and reviewed it I find it a seminal work about Australia’s constitutional development. It will surely find its way as a resource onto the shelves of practising and academic constitutional lawyers. It should also be a required and welcome resource for students studying law. Indeed all practising lawyers should welcome it. Our Constitution is fundamental to the Rule of Law and every practising lawyer should have access to a work which provides not only a broad overview of our constitutional development but also an in-depth and highly reliable analysis of the parliamentary, executive and judicial powers and the mechanics of government designed to underpin and make our democracy work. I believe this work will admirably fill that space. It was the author’s objective, I am sure, to address his subject in as simple English as it would allow. I think he had in mind, in doing so, that his work could be read and understood by ordinary Australians and others who were not lawyers who wanted a clear, reliable and if needed detailed account of our Constitution, its development and place in our progress as a nation. I think he

has succeeded in this objective.

The Author The quality of such a work will always depend on the degree of excellence the author brings to it. Jack’s life and work as legal adviser to government, law professor and dean, writer, barrister, and our first Ombudsman, quite apart from the strength of his personality and the breadth of his active life, were of such high quality that it ensured it would be expressed in this, his final literary work. I first met Jack shortly after I became Commonwealth Solicitor-General in 1969. I chaired a Committee set up by Attorney-General Nigel Bowen to review the Judiciary Act. Jack and Professor Leslie Zines were already members. I was confronted by two of the most brilliant minds in constitutional law in the country! Jack’s intelligence, considerable powers of communication and attractive personality impressed me. The committee’s work took several years. Legislative amendments met its objectives. In the early 1970s Jack retired as dean of the Faculty of Law at the Australian National University (ANU). He had accepted, in 1960, the position of Professor of Public Law at the then newly established Faculty of Law. It was a daunting task. The faculty had only 78 mostly part-time students, five full-time staff and a small library. Some would have thought the enterprise was fruitless. However, by dint of his academic excellence which ensured the quality of its teaching, his considerable administrative skills and the sheer strength of his persuasive personality he was able to leave the faculty with a new building, a large library, 500 students with a high academic level of entry and its own journal, the Federal Law Review. He laid the foundation for what is clearly one of the leading law faculties in Australia. A survey of Jack’s professional life will show that it was marked by spontaneity, diversity and enterprise. Others recognised these attributes, along with the required intellectual capacity and administrative skills, when they engaged him. In his early years he had a flair for the avant garde. Professor Zines said that he first met him in 1954 in the Attorney-General’s Department: ‘He was a wiry,

energetic and dashing man in his mid-thirties who drove an MG car and wore a beret in the French manner.’ He was one of the most highly regarded lawyers in the department. When I came to know him in 1970 much of that flair was still there. He was extrovert, optimistic and driven by seemingly boundless energy in achieving his goals or the task in front of him. He had in abundance practical common sense and tact. He was a highly competitive first grade tennis player. In later years he became closely involved in running a horse stud with his wife, Grace. He remained a visiting fellow at the ANU Law Faculty, as Professor Zines reported it, ‘taking part in seminars and conferences, writing articles and chapters on various aspects of public law. His advice was often sought by members of the legal profession’. His professional life in the 1950s demonstrates the diversity and versatility of his legal expertise: •

He studied air and space law at McGill University in Canada and became a leader in Australia in this increasingly important aspect of law. From 1952 to 1957 he was a member of the Legal Committee of the International Civil Aviation Organization. The expertise he introduced in this area led him to introduce at the ANU the first course in air law in Australia.

•

He was appointed Legal Secretary to the 1956–59 Joint Parliamentary Committee on Constitutional Review. He wrote the report embodying its recommendations. On political grounds these turned out to be controversial and few were implemented. Nevertheless, his appointment recognised the regard in which he was held as a constitutional lawyer.

•

In 1960 Attorney-General Sir Garfield Barwick chose him as chief assistant and adviser in preparing legislation to prevent restrictive trade practices and monopolistic behaviour. They travelled abroad to observe what had happened in that respect in other countries. Barwick thought highly of him. In his biography, A Radical Tory, he wrote of him:

To do the footwork I took with me Mr Richardson an officer of my Department who was later to have a distinguished career as Professor of Law. … He was a very competent and well-furnished lawyer and keen to work with me. I found him careful in the collection of material and level headed

in his judgments. [p 146]

And, I was able to discuss all this legislation and the manner of its operation with Richardson. In the end we devised a scheme of our own … [p 147]

Knowing Barwick well, as I did, this was no small compliment. Late in 1973 I resigned as Solicitor-General, returning to private practice. I had two rooms in my chambers but only needed one. I was aware that in other countries it was common for leading academic lawyers to practise in their courts. I offered Jack the spare room. He took it and practised at the New South Wales Bar for two years, including appearing for the Commonwealth in the landmark Seas and Submerged Lands case. In 1976 the Fraser Government established the office of Ombudsman under the Ombudsman Act 1976 (Cth) and under the Prime Minister’s authority. I was Attorney-General at the time and took a keen interest in the first appointment. I thought Richardson had all the qualities needed. I rang him and asked whether, if offered, he would accept. He said yes. It was to change his life. There was a tussle in cabinet. The Prime Minister also had a nominee! Jack was accepted and he occupied the office until 1985. The office of Ombudsman was strongly resisted by the upper echelons of the Commonwealth Public Service. John Wood, a Deputy Ombudsman, thought Jack was ideally suited to take on ‘the hitherto secretive mandarins’ who headed the major departments. By sheer force of personality, knowledge, intellect and administrative skill Jack steadily won the battle. By his retirement in 1985 he had established the office as one of the great pillars of administrative reform in Australia — a magnificent achievement.

The Constitution and the Nation Our Constitution actually originated in British Imperial legislation but in reality it was a blueprint for our nation. The Statute of Westminster 1931 and the implementation of the Balfour Declaration ensured our emergence. Debate surrounds the exact moment when Australia stood as a fully fledged nation. It certainly happened no later than Prime Minister Curtin recalling the 2nd AIF

and declaring war on the Japanese and our militia fighting the battle of the Kokoda Trail. With the passage of the Australia Act 1986 (Cth) all possible legal shackles remaining fell off. In reality the Constitution governs and directs our daily lives under the Rule of Law. This is because our lives are lived in community. As a nation we are really unique. A new race of people is evolving on an island continent. It began over 40,000 years ago with the arrival of our Indigenous people. We live and breathe in a free democratic and liberal society — all because our Constitution is a living instrument for change. We need to appreciate it much more than we do. Our young people should be educated with a much deeper knowledge of it. There is much mystery, fear and ignorance which obscures our appreciation of the Australian Constitution. We as a people are entitled to mould our future under its terms and this needs to be done by our people, not by so-called experts in conclave. We need to really own it. Jack Richardson’s work provides a platform of knowledge on which we can build an understanding and appreciation of our Constitution. This fine book is a resource for informed teachers in our schools and for ourselves at home to deepen that knowledge. It will enlighten the dynamic of our times — we are a new people evolving with a charter for freedom in our world and nurturing its oldest continent. Bob Ellicott QC Former Solicitor-General and Attorney-General of the Commonwealth of Australia 2 August 2016

Editor’s note Jack Richardson’s expertise in Australian public law deserves to remain accessible to all Australians. We should all be interested in the operation of our Constitution, and the system of representative and responsible government which functions under it. Few could claim as intimate an acquaintance with the workings of this system as Emeritus Professor Jack Richardson AO. In this book, Jack Richardson combines his academic expertise in the law with the practical insights gained from a lifetime of involvement in the key public law developments in Australia. His unique experience of Australia’s constitutional government is expressed in a way that makes it accessible to a broad audience, while offering insights that will be valuable even to specialist practitioners of constitutional and administrative law. It has been a pleasure and a privilege to attend to the ‘completing’ and updating of the manuscript as it stood at the death of Jack Richardson in 2011. Naturally, there are always questions of how far an editor should go in preparing a manuscript for publication in these circumstances. I have endeavoured to preserve, as far as possible, what I believe to have been the views of the author on the operation of the Constitution, while updating relevant cases and statutes that have changed or consolidated the law since the late author’s consideration of it. Of course, there are (limited) areas where one might disagree with Richardson’s views. In any instances where I was unable to agree with the learned author’s conclusions, I have not disturbed them, but instead have attempted to make the reader aware of any important alternative perspectives. This book should bring Australian public law within the grasp of all Australians, who now have the opportunity to learn about our system of constitutional government from one of its most distinguished and influential participants.

I thank Matthew Richardson for entrusting this project to me on behalf of the Richardson family, and for assisting to ensure his father’s views remained faithfully represented; Shauna Roeger for outstanding research assistance; Emeritus Professor Geoffrey Lindell AM (also a colleague of Jack Richardson) for his generosity in reading the entire manuscript in draft and providing many expert comments and suggestions which were of great assistance; the team at LexisNexis, especially Dr Pamela O’Neill and Mary-Jane Oliver; and the Honourable Bob Ellicott QC for his generous and illuminating foreword. Matthew Stubbs Adelaide Law School The University of Adelaide South Australia

Acknowledgments Almost to the time of his death, Jack Richardson was working vigorously on this book. My father’s expectation that physical illness would cut short the output of his unflagging mental powers gave him the motivation he needed to complete it almost entirely, and to pass on instructions as to a numerous but fairly trifling array of loose ends. Those loose ends, as well as the business of making the parts written at different times consistent, and drawing them together to match his plan, left his family with a large task in order to ready the work for publication. It was a task shared by a number of people who deserve warm gratitude. In addition, while he was working he relied on individuals he would certainly have acknowledged properly, given the opportunity. I wish I knew all their names. Significant among them are those who typed in most of the text as he was writing, with remarkable accuracy and a marvellous gift for deciphering arcane handwriting. The College of Law of the Australian National University provided research and office facilities for writing the book, and colleagues and surroundings conducive to legal scholarship. There and elsewhere Jack took ready advantage of opportunities to consult friends who have been leaders in fields that he examined, such as Professor Leslie Zines, Professor Patrick Keyzer and Professor Dennis Pearce. His former ANU colleague, Professor Geoffrey Lindell of the University of Adelaide, played an important role in reviewing parts of the text, and in introducing Matthew Stubbs, to whom we’re particularly grateful for taking on the role of editor and for ensuring the book is up to date. My father did not have the advantage of meeting him, but I’m sure would have been glad such important tasks were in his hands. And for the foreword to this book Jack would eagerly have endorsed his family’s gratitude to Bob Ellicott QC — a staunch sponsor of his career long ago and even today — who, as Attorney-General, played a crucial role in implementing reforms that brought Australian government into its modern age.

Amongst those who helped me get the text ready are generous colleagues at Halstead Press, including Alana Ayliffe and Giorgia Ortolani. Others are knowledgeable family members and friends, including Anthea McGeary, Simon Disney, Elizabeth Sivell and Rebecca Richardson. At LexisNexis, Serena Cubie was the enthusiastic promoter who made sure the book would be published; subsequently, Pamela O’Neill has ably managed its publication. Other members of the publisher’s team have carried out their work with efficient professionalism; we don’t know them but can see their effectiveness in the finished standard. Not being able to identify everyone who helped detracts quite a lot from these acknowledgments. I hope those whose names really ought to be here will believe that we are sincerely grateful, and feel welcome to make contact. Matthew Richardson

Table of Cases References are to page numbers A Abebe v Commonwealth (1999) 197 CLR 510; 162 ALR 1; [1999] HCA 14 …. 160 Actors and Announcers Equity Association v Fontana Films Pty Ltd (1982) 150 CLR 169; 40 ALR 609 …. 199, 233 Adamson’s case (R v Judges of the Federal Court of Australia; Ex parte Western Australian National Football League) (1979) 143 CLR 190; 23 ALR 439 …. 231, 232 Adelaide Company of Jehovah’s Witnesses Inc v Commonwealth (Jehovah’s Witnesses case) (1943) 67 CLR 116; [1943] ALR 193 …. 250, 507 Air Caledonie International v Commonwealth (1988) 165 CLR 462; 82 ALR 385 …. 211, 212, 213 Airlines of New South Wales Pty Ltd v New South Wales (No 2) (1965) 113 CLR 54; [1965] ALR 984 …. 198, 273, 403, 514 Airservices Australia v Canadian Airlines International Ltd (1999) 202 CLR 133; 167 ALR 392; [1999] HCA 62 …. 198 Alqudsi v R (2016) 332 ALR 20; [2016] HCA 24 …. 503 Amalgamated Society of Engineers v Adelaide Steamship Co Ltd (Engineers’ case) (1920) 28 CLR 129; 26 ALR 337 …. 59, 154, 155, 163, 164, 239, 377 Andrews v Howell (1941) 65 CLR 255; [1941] ALR 185 …. 248, 249 Ansett Transport Industries (Operations) Pty Ltd v Wardley (1980) 142 CLR

237; 28 ALR 449 …. 407 APLA Ltd v Legal Services Commissioner of New South Wales (2005) 224 CLR 322; 219 ALR 403; [2005] HCA 44 …. 494 Assistant Commissioner Condon v Pompano Pty Ltd (2013) 252 CLR 38; 295 ALR 638; [2013] HCA 7 …. 388 Attorney-General (Cth) v MacFarlane (1971) 18 FLR 150; [1972] ALR 619 …. 89 — v R (Boilermakers’ case) (1957) 95 CLR 529; [1957] AC 288; [1957] ALR 489 …. 65, 290 — v Schmidt (1961) 105 CLR 361; [1961] ALR 806 …. 161, 498 Attorney-General for New South Wales v Trethowan (1931) 44 CLR 394; [1931] ALR 101 …. 384 Attorney-General (NSW) v Collector of Customs (NSW) (Steel Rails case) (1908) 5 CLR 818; 14 ALR 516 …. 214 — v Homebush Flour Mills Ltd (1937) 56 CLR 390; [1937] ALR 161 …. 212 — v Quin (1990) 170 CLR 1; 93 ALR 1 …. 66 — v Trethowan (1932) 47 CLR 97; [1932] AC 526 …. 384 Attorney-General (NT) v Chaffey (2007) 231 CLR 651; 237 ALR 373; [2007] HCA 34 …. 500 — v Emmerson (2014) 253 CLR 393; 307 ALR 174; [2014] HCA 13 …. 388 Attorney-General (Qld) v Lawrence [2014] 2 Qd R 504; (2013) 306 ALR 281; [2013] QCA 364 …. 389 — v Riordan (1997) 192 CLR 1; 146 ALR 445 …. 293 Attorney-General (Vic); Ex rel Victorian Chamber of Manufactures v Commonwealth (1935) 52 CLR 533; [1935] ALR 246 …. 245 Attorney-General (Vic); Ex rel Black v Commonwealth (1981) 146 CLR 559 …. 507

Attorney-General (WA) v Marquet (2003) 217 CLR 545; 202 ALR 233; [2003] HCA 67 …. 384, 412 Attorney-General (WA) (ex rel Ansett Transport Industries (Operations) Pty Ltd) v Australian National Airlines Commission (1976) 138 CLR 492; 12 ALR 17 …. 195, 196 Austin v Commonwealth (2003) 215 CLR 185; 195 ALR 321; [2003] HCA 3 …. 166, 292 Australian Boot Trade Employees Federation v Whybrow & Co (Whybrow’s case) (1910) 11 CLR 311; 16 ALR 513 …. 290, 396 Australian Broadcasting Commission v Industrial Court of South Australia (1977) 138 CLR 399; 15 ALR 609 …. 406 Australian Capital Television Pty Ltd v Commonwealth (Capital Television case) (1992) 177 CLR 106; 108 ALR 577 …. 490 Australian Coastal Shipping Commission v O’Reilly (1962) 107 CLR 46; [1962] ALR 502 …. 170, 196 Australian Communist Party v Commonwealth (Communist Party case) (1951) 83 CLR 1; [1951] ALR 129 …. 171, 258, 261, 458, 459 Australian Education Union, Re; Ex parte Victoria (1995) 184 CLR 188; 128 ALR 609 …. 165, 281 Australian Mutual Provident Society v Goulden (1986) 160 CLR 330; 65 ALR 637 …. 398, 407 Australian National Airways Pty Ltd v Commonwealth (1945) 71 CLR 29; [1946] ALR 1 …. 195, 200 Australian Tape Manufacturers Association Ltd v Commonwealth (1993) 176 CLR 480; 112 ALR 53 …. 213 Australian Transport Industries (Operations) Pty Ltd v Wardley (1980) 142 CLR 237; 28 ALR 449 …. 399 B

Baker v R (2004) 223 CLR 513; 210 ALR 1; [2004] HCA 45 …. 387 Bank of New South Wales v Commonwealth (Bank Nationalisation case) (1948) 76 CLR 1; [1948] 2 ALR 89 …. 312, 313, 499 Bank Nationalisation case (Bank of New South Wales v Commonwealth) (1948) 76 CLR 1; [1948] 2 ALR 89 …. 312, 313, 499 Bank Nationalisation case (Commonwealth v Bank of New South Wales) (1949) 79 CLR 497; [1949] ALR 925; [1950] AC 235 Bardolph’s case (New South Wales v Bardolph) (1934) 52 CLR 455; [1935] ALR 22 …. 460, 461, 462 Barger’s case (R v Barger) (1908) 6 CLR 41; 14 ALR 374 …. 59, 163, 211 Barley Marketing Board (NSW) v Norman (1990) 171 CLR 182; 96 ALR 524 …. 318 Barton v Commonwealth (1974) 131 CLR 477; 3 ALR 70 …. 419, 420, 421, 427, 456 Bath v Alston Holdings Pty Ltd (1988) 165 CLR 411; 8 ALR 669 …. 318 Bayside City Council v Telstra Corporation Ltd (2004) 216 CLR 595; 206 ALR 1; [2004] HCA 19 …. 170, 394 Beal v Marrickville Margarine Pty Ltd (1966) 114 CLR 283; [1967] ALR 76 …. 313, 316, 321 Berwick Ltd v Deputy Commissioner of Taxation (1976) 133 CLR 603; 8 ALR 580 …. 300 Betfair Pty Ltd v Racing New South Wales (2012) 249 CLR 217; 286 ALR 221; [2012] HCA 12 …. 153, 320 — v Western Australia (2008) 234 CLR 417; 244 ALR 32; [2008] HCA 11 …. 153, 320 Blackley v Devondale Cream (Vic) Pty Ltd (1968) 117 CLR 253; [1968] ALR 307 …. 398 Boilermakers’ case (R v Kirby; Ex parte Boilermakers’ Society of Australia)

(1956) 94 CLR 254; ALR 163 …. 65, 109, 290, 511 Boilermakers’ case (Attorney-General v R) (1957) 95 CLR 529; [1957] AC 288; [1957] ALR 489 …. 65, 290 Bonser v La Macchia (1969) 122 CLR 177; [1969] ALR 741 …. 382 Botany Municipal Council v Federal Airports Corporation (1992) 175 CLR 453; 109 ALR 321 …. 170 Bourke v State Bank of New South Wales (1990) 170 CLR 276; 93 ALR 460 …. 161 Bradken Consolidated Ltd v Broken Hill Proprietary Co Ltd (1979) 145 CLR 107; 24 ALR 9 …. 422 Brandy v Human Rights and Equal Opportunity Commission (1995) 183 CLR 245; 127 ALR 1 …. 65, 109 Bropho v Western Australia (1990) 171 CLR 1; 93 ALR 207 …. 420, 422 Brown v R (1986) 160 CLR 171; 64 ALR 161 …. 503 Brownlee v R (2001) 207 CLR 278; 180 ALR 301; [2001] HCA 36 …. 504 Buck v Bavone (1976) 135 CLR 110; 9 ALR 481 …. 317 Burmah Oil Company (Burma Trading) Ltd v Lord Advocate [1965] AC 75 …. 423 Burton v Honan (1952) 86 CLR 169; [1952] ALR 553 …. 158, 502 Burwood Cinema Ltd v Australian Theatrical and Amusement Employees’ Association (1925) 35 CLR 528; 31 ALR 282 …. 290 Butler v Attorney-General (Vic) (1961) 106 CLR 268; [1961] ALR 650 …. 395 Byrnes v R (1999) 199 CLR 1; 164 ALR 520 …. 503 C Cameron v Deputy Federal Commissioner of Taxation (Tas) (1923) 32 CLR 68; 29 ALR 119 …. 207

Capital Duplicators Pty Ltd v Australian Capital Territory (1992) 177 CLR 248; 109 ALR 1 …. 296 — v — (No 2) (1993) 178 CLR 561; 118 ALR 1 …. 226, 302 Capital Television case (Australian Capital Television Pty Ltd v Commonwealth) (1992) 177 CLR 106; 108 ALR 577 …. 490 Castlemaine Tooheys Ltd v South Australia (1990) 169 CLR 436; 90 ALR 371 …. 153, 319 Cheatle v R (1993) 177 CLR 541; 116 ALR 1 …. 503, 504 Church of the New Faith v Commissioner of Pay-roll Tax (Vic) (Scientology case) (1983) 154 CLR 120; 49 ALR 65 …. 505 Cigamatic case (Commonwealth v Cigamatic Pty Ltd (in liq) (1962) 108 CLR 372; [1963] ALR 304 …. 168, 169, 329, 381, 420 Clarke v Commissioner of Taxation (2009) 240 CLR 272; 258 ALR 623; [2009] HCA 33 …. 166, 292 Clough v Leahy (1904) 2 CLR 139; 11 ALR 32 …. 462 Clunies-Ross v Commonwealth (1984) 155 CLR 193; 55 ALR 609 …. 298 Clyde Engineering Co v Cowburn (1926) 37 CLR 466; 32 ALR 214 …. 396, 397, 398 Coe v Commonwealth (No 2) (1993) 118 ALR 193 …. 186 Cole v Whitfield (1988) 165 CLR 360; 78 ALR 42 …. 153, 200, 234, 314, 316, 318, 319, 321, 322, 504 Coleman v Power (2004) 220 CLR 1; 209 ALR 182; [2004] HCA 39 …. 493, 494 Colonial Sugar Refining Co v Commonwealth (1912) 15 CLR 182; 18 ALR 556 …. 145 Colvin v Bradley Bros Pty Ltd (1943) 68 CLR 151; [1944] ALR 35 …. 398 Commissioner of Taxation v Clyne (1958) 100 CLR 246; [1958] ALR 474 …. 211

Commonwealth v Australian Capital Territory (Same Sex Marriage case) (2013) 250 CLR 441; 304 ALR 204; [2013] HCA 55 …. 403, 404 — v Australian Commonwealth Shipping Board (1926) 39 CLR 1; 33 ALR 61 …. 245, 246, 459 — v Bank of New South Wales (Bank Nationalisation case) (1949) 79 CLR 497; [1949] ALR 925; [1950] AC 235 — v Bogle (1953) 89 CLR 229; [1953] ALR 229 …. 167, 168, 169 — v Cigamatic Pty Ltd (in liq) (Cigamatic case) (1962) 108 CLR 372; [1963] ALR 304 …. 168, 169, 329, 381, 420 — v Colonial Combing, Spinning and Weaving Co Ltd (1922) 31 CLR 421; 29 ALR 138 …. 459 — v Mewett (1997) 191 CLR 471; 146 ALR 299 …. 421 — v Tasmania (Tasmanian Dam case) (1983) 158 CLR 1; 46 ALR 625 …. 68, 142, 165, 201, 235, 240, 271, 275, 276, 279, 280, 328 — v WMC Resources Ltd (1998) 194 CLR 1; 152 ALR 1 …. 500 Communist Party case (Australian Communist Party v Commonwealth) (1951) 83 CLR 1; [1951] ALR 129 …. 171, 258, 261, 458, 459 Concrete Pipes case (Strickland v Rocla Concrete Pipes Ltd) (1971) 124 CLR 468; [1972] ALR 3 …. 69, 230 Conroy v Carter (1968) 118 CLR 90; [1968] ALR 545 …. 206 Cooper v Stuart (1889) 14 App Cas 286 …. 177, 178 Cormack v Cope (1974) 131 CLR 432; 3 ALR 419 …. 117 Cram, Re; Ex parte New South Wales Colliery Proprietors’ Association Ltd (1987) 163 CLR 117; 72 ALR 161 …. 292 Credit Tribunal, Re; Ex parte General Motors Acceptance Corporation Australia (GMAC case) (1977) 137 CLR 545; 14 ALR 257 …. 404, 405 Criminal Proceeds Confiscation Act 2002, Re [2004] 1 Qd R 40; [2003] QCA 249 …. 387, 388

Cudgen Rutile (No 2) Pty Ltd v Chalk (1974) 4 ALR 438; [1975] AC 520 …. 464, 465 CYSS case (R v Coldham; Ex parte Australian Social Welfare Union) (1983) 153 CLR 297; 47 ALR 225 …. 291, 292 D Daintree Rainforest case (Queensland v Commonwealth) (1989) 167 CLR 232; 86 ALR 519 …. 277 Dao v Australian Postal Commission (1987) 162 CLR 317; 70 ALR 449 …. 406 Davies & Jones v Western Australia (1905) 2 CLR 29; 11 ALR 73 …. 508, 509, 510 Davis v Commonwealth (1988) 166 CLR 79; 82 ALR 633 …. 419, 421, 426 Dawson v Commonwealth (1946) 73 CLR 157; [1946] ALR 461 …. 253 Day v Australian Electoral Officer for South Australia [2016] HCA 20 …. 99 Delohery v Permanent Trustee Co of New South Wales (1904) 1 CLR 283; 10 ALR (CN) 37 …. 4 D’Emden v Pedder (1904) 1 CLR 91; 10 ALR (CN) 30 …. 58, 157, 162, 196 Dennis Hotels Pty Ltd v Victoria (1960) 104 CLR 529; [1960] ALR 129 …. 225, 226 Deputy Commissioner of Taxation v Truhold Benefit Pty Ltd (1985) 158 CLR 678; 59 ALR 431 …. 215 — v W R Moran Pty Ltd (Flour Tax case) (1939) 61 CLR 735; [1939] ALR 357 …. 218 Deputy Federal Commissioner of Taxation v State Bank of New South Wales (1992) 174 CLR 219; 105 ALR 161 …. 214 Dickenson’s Arcade Pty Ltd v Tasmania (1974) 130 CLR 177; 2 ALR 460 …. 152

Dickson v R (2010) 241 CLR 491; 270 ALR 1; [2010] HCA 30 …. 405 Dignan v Australian Steamships Pty Ltd (1931) 45 CLR 188; [1931] ALR 213 …. 109 Dingjan, Re; Ex parte Wagner (1995) 183 CLR 323; 128 ALR 81 …. 156, 236, 239, 240 Drake and Minister for Immigration and Ethnic Affairs (No 2), Re (1979) 2 ALD 634 …. 471 E E v Australian Red Cross Society (1991) 27 FCR 310; 99 ALR 601 …. 232 Eastman v R (2000) 203 CLR 1; 172 ALR 39; [2000] HCA 29 …. 303 Egan v Willis (1998) 195 CLR 424; 158 ALR 527 …. 467 Elliott v Commonwealth (1936) 54 CLR 657; [1936] ALR 174 …. 206, 210, 211 Engineers’ case (Amalgamated Society of Engineers v Adelaide Steamship Co Ltd) (1920) 28 CLR 129; 26 ALR 337 …. 59, 154, 155, 163, 164, 239, 377 F F, Re; Ex parte F (1986) 161 CLR 376; 66 ALR 193 …. 157 Fairfax v Federal Commissioner of Taxation (1965) 114 CLR 1; [1966] ALR 1073 …. 155, 204, 221 Fardon v Attorney-General (Qld) (2004) 223 CLR 575; 210 ALR 50; [2004] HCA 46 …. 387, 389 Farey v Burvett (1916) 21 CLR 433; 22 ALR 201 …. 247, 420 Federated Amalgamated Government Railway and Tram Service Association v New South Wales Railway Traffic Employees Association (Railway Servants’ case) (1906) 4 CLR 488; 13 ALR 273 …. 57, 58, 162 Federal Roads case (Victoria v Commonwealth) (1926) 38 CLR 399 …. 217,

326 Federated State School Teachers’ Association of Australia v Victoria (1929) 41 CLR 569; 35 ALR 129 …. 291 Fencott v Muller (1983) 152 CLR 570; 46 ALR 41 …. 232 Finemores Transport Pty Ltd v New South Wales (1978) 139 CLR 338; 19 ALR 289 …. 317 First Territory Senators’ case (Western Australia v Commonwealth) (1975) 134 CLR 201; 7 ALR 159 …. 82, 118 First Uniform Tax case (South Australia v Commonwealth) (1942) 65 CLR 373; [1942] ALR 186 …. 204, 219, 326, 327 Flour Tax case (Deputy Commissioner of Taxation v W R Moran Pty Ltd) (1939) 61 CLR 735; [1939] ALR 357 …. 218 Fortescue Metals Group Ltd v Commonwealth (2013) 250 CLR 548; 300 ALR 26; [2013] HCA 34 …. 209 Fox v Robbins (1909) 8 CLR 115; 15 ALR 112 …. 307 G Garnishee case (New South Wales v Commonwealth) (1932) 46 CLR 155; 5 ALJ 433 …. 333, 433 Gerhardy v Brown (1985) 159 CLR 70; 57 ALR 472 …. 395 GMAC case (Re Credit Tribunal; Ex parte General Motors Acceptance Corporation Australia (1977) 137 CLR 545; 14 ALR 257 …. 404, 405 Goryl v Greyhound Australia Pty Ltd (1994) 179 CLR 463; 120 ALR 605 …. 510 Gove Island Land Rights case (Milirrpum v Nabalco Pty Ltd) (1971) 17 FLR 141 …. 178 Goya Henry case (R v Burgess; Ex parte Henry) (1936) 55 CLR 608; [1936] ALR 482 …. 197, 269, 272, 273, 275, 420, 514

Governor, Goulburn Correctional Centre, Re; Ex parte Eastman (1999) 200 CLR 322; 165 ALR 171; [1999] HCA 44 …. 304 Graham v Paterson (1950) 81 CLR 1; [1950] ALR 324 …. 410 Grain Pool of Western Australia v Commonwealth (2000) 202 CLR 479; 170 ALR 111; [2000] HCA 14 …. 156 Grannall v Marrickville Margarine Pty Ltd (1955) 93 CLR 55; [1955] ALR 331 …. 157 Gratwick v Johnson (1945) 70 CLR 1; [1945] ALR 167 …. 253 Gypsy Jokers Motorcycle Club Inc v Commissioner of Police (2008) 234 CLR 532; 242 ALR 191; [2008] HCA 4 …. 387 H H C Sleigh Ltd v South Australia (1977) 136 CLR 475; 12 ALR 449 …. 225 H V McKay, Ex parte (Harvester case) (1907) 2 Commonwealth Arbitration Reports 1 …. 56, 289, 293 Ha v New South Wales (1997) 189 CLR 465; 146 ALR 355 …. 152, 226, 328, 373 Harper v Victoria (1966) 114 CLR 361; [1966] ALR 731 …. 212 Harvester case (Ex parte H V McKay) (1907) 2 Commonwealth Arbitration Reports 1 …. 56, 289, 293 Health Insurance Commission v Peverill (1994) 179 CLR 226; 119 ALR 675 …. 499 Heart of Atlanta Motel v United States 379 US 241 (1964) …. 195 Henderson’s case (Re Residential Tenancies Tribunal (NSW); Ex parte Defence Housing Authority) (1997) 190 CLR 410; 146 ALR 495 …. 167, 168, 169, 170, 329, 330 Henry v Boehm (1973) 128 CLR 482; 1 ALR 181 …. 208, 509, 510 Hogan v Hinch (2011) 243 CLR 506; 275 ALR 408; [2011] HCA 4 …. 494

Horta v Commonwealth (1994) 181 CLR 183; 123 ALR 1 …. 281 Huddart, Parker & Co Pty Ltd v Moorehead (Moorehead’s case) (1909) 8 CLR 330; 15 ALR 241 …. 57, 69, 229, 230, 240 Hughes & Vale Pty Ltd v New South Wales (No 1) (1954) 93 CLR 1; [1954] ALR 1069 …. 310, 321 — v — (No 2) (1955) 93 CLR 127; [1955] ALR 525 …. 311, 321 I ICM Agriculture Pty Ltd v Commonwealth (2009) 240 CLR 140; 261 ALR 653; [2009] HCA 51 …. 501 Incorporation case (New South Wales v Commonwealth) (1990) 169 CLR 482; 90 ALR 355…. 234 Industrial Lighting Regulations case (Victorian Chamber of Manufactures v Commonwealth) (1943) 67 CLR 413; [1943] ALR 325…. 252 Industrial Relations Act case (Victoria v Commonwealth) (1996) 187 CLR 416; 138 ALR 129 …. 165, 267, 271, 278, 279, 280, 281, 283, 288 International Finance Trust Co Ltd v New South Wales Crime Commission (2009) 240 CLR 319; 261 ALR 220; [2009] HCA 49 …. 388 J James v Commonwealth (1928) 41 CLR 442 …. 206 — v — (1936) 55 CLR 1; [1936] AC 578; [1936] ALR 333 …. 309, 321 James v Cowan (1930) 43 CLR 386; [1930] ALR 125 …. 308, 309, 322 — v — (1932) 47 CLR 386; [1932] AC 542; [1932] ALR 334 …. 308, 309 Jehovah’s Witnesses case (Adelaide Company of Jehovah’s Witnesses Inc v Commonwealth) (1943) 67 CLR 116; [1943] ALR 193 …. 250, 507 John Pfeiffer Pty Ltd v Rogerson (2000) 203 CLR 503; 172 ALR 625 …. 394 Johnson v Kent (1975) 132 CLR 164; 5 ALR 201 …. 461

Johnston, Fear & Kingham v Commonwealth (1943) 67 CLR 314; [1943] ALR 278 …. 502 Joseph v Colonial Treasurer (NSW) (1918) 25 CLR 32; 24 ALR 185 …. 466 JT International SA v Commonwealth (2012) 250 CLR 1; 291 ALR 669; [2012] HCA 43 …. 501 Jumbunna Coal Mine NL v Victorian Coal Miners’ Association (1908) 6 CLR 309; 14 ALR 701 …. 291, 382 K Kable v Director of Public Prosecutions (NSW) (1996) 189 CLR 51; 138 ALR 577 …. 304, 386, 387, 388, 389, 390, 511 Kartinyeri v Commonwealth (1998) 195 CLR 337; 152 ALR 540; [1998] HCA 22 …. 188 K-Generation Pty Ltd v Liquor Licensing Court (2009) 237 CLR 501; 252 ALR 471; [2009] HCA 4 …. 387 Kirk v Industrial Relations Commission (NSW) (2010) 239 CLR 531; 262 ALR 569; [2010] HCA 1 …. 390 Kirmani v Captain Cook Cruises Pty Ltd (No 1) (1985) 159 CLR 351; 58 ALR 29 …. 147 — v — (1985) 159 CLR 461; 58 ALR 108 …. 145 Koowarta v Bjelke-Petersen (1982) 153 CLR 168; 39 ALR 417 …. 274, 275, 280 Kruger v Commonwealth (Stolen Generations case) (1997) 190 CLR 1; 146 ALR 126 …. 175, 303, 508 L Laforest (Clerk of the House of Representatives) v Cargill (1959) 1 West Indian Reports 178 …. 80 Lamshed v Lake (1958) 99 CLR 132; [1958] ALR 388 …. 300, 303

Lane v Morrison (2009) 239 CLR 230; 258 ALR 404; [2009] HCA 29 …. 263 Lange v Australian Broadcasting Corporation (1997) 189 CLR 520; 145 ALR 96 …. 394, 491, 492, 493, 494, 496 Langer v Commonwealth (1996) 186 CLR 302; 134 ALR 400 …. 493 Leask v Commonwealth (1996) 187 CLR 579; 140 ALR 1 …. 205 Levy v Victoria (1996) 189 CLR 579; 146 ALR 248 …. 492 Lipohar v R (1999) 200 CLR 485; 168 ALR 8 …. 394 Lloyd v Wallach (1915) 20 CLR 299; 21 ALR 353 …. 246, 259 Luton v Lessels (2002) 210 CLR 333; 187 ALR 529; [2002] HCA 13 …. 213 M Mabo v Queensland (1988) 166 CLR 186; 83 ALR 14 …. 397 — v — (No 2) (1992) 175 CLR 1; 107 ALR 1 …. 4, 177, 178, 180, 182, 183, 185 MacCormick v Federal Commissioner of Taxation (1984) 158 CLR 622; 52 ALR 53 …. 215 Mansell v Beck (1956) 95 CLR 550; [1956] ALR 1121 …. 316 Maritime Union of Australia, Re; Ex parte CSL Pacific Shipping Inc (2003) 214 CLR 397; 200 ALR 39; [2003] HCA 43 …. 156 Martino v Michigan Window Cleaning Co 327 US 173 (1946) …. 195 Matthews v Chicory Marketing Board (1938) 60 CLR 263; [1938] ALR 370 …. 211 McArthur v Queensland (1920) 28 CLR 530; 27 ALR 130 …. 307, 308, 309, 310 McCarter v Brodie (1950) 80 CLR 432; [1950] ALR 385 …. 310 McClintock v Commonwealth (1947) 75 CLR 1; [1947] ALR 530 …. 501 McCloy v New South Wales (2015) 325 ALR 15; [2015] HCA 34 …. 491,

496 McGinty v Western Australia (1996) 186 CLR 140; 134 ALR 289 …. 391 Mclean, Ex parte (1930) 43 CLR 472; 36 ALR 377 …. 396 Melbourne Corporation v Commonwealth (State Banking case) (1947) 74 CLR 31; [1947] ALR 377 …. 164, 166, 167, 169, 281, 292, 394 Milirrpum v Nabalco Pty Ltd (Gove Island Land Rights case) (1971) 17 FLR 141 …. 178 Miller v TCN Channel Nine Pty Ltd (1986) 161 CLR 556; 67 ALR 321 …. 313 Minister of State for the Army v Dalziel (1944) 68 CLR 261; [1944] ALR 89 …. 498, 499 Mobil Oil Australia Pty Ltd v Victoria (2002) 211 CLR 1; 189 ALR 161; [2002] HCA 27 …. 383, 384 Momcilovic v R (2011) 245 CLR 1; 280 ALR 221; [2011] HCA 34 …. 405, 406, 512 Monis v R (2013) 249 CLR 92; 295 ALR 259; [2013] HCA 4 …. 495 Moore v Commonwealth (1951) 82 CLR 547; [1951] ALR 258 …. 155, 204 Moorehead’s case (Huddart, Parker & Co Pty Ltd v Moorehead) (1909) 8 CLR 330; 15 ALR 241 …. 57, 69, 229, 230, 240 Morgan v Commonwealth (1947) 74 CLR 421; [1947] ALR 161 …. 201 Mulholland v Australian Electoral Commission (2004) 220 CLR 181; 209 ALR 582 …. 494 Murphyores Inc Pty Ltd v Commonwealth (1976) 136 CLR 1; 9 ALR 199 …. 155, 156, 199, 200, 329 Mutual Pools & Staff Pty Ltd v Commonwealth (1994) 179 CLR 155; 119 ALR 577 …. 500 N

Nationwide News Pty Ltd v Wills (1992) 177 CLR 1; 108 ALR 681 …. 490 Nelungaloo v Commonwealth (1948) 75 CLR 495; [1948] 1 ALR 145 …. 502 New South Wales v Bardolph (Bardolph’s case) (1934) 52 CLR 455; [1935] ALR 22 …. 460, 461, 462 — v Commonwealth (Incorporation case) (1990) 169 CLR 482; 90 ALR 355 …. 234 — v — (Garnishee case) (1932) 46 CLR 155; 5 ALJ 433 …. 333, 433 — v — (Seas and Submerged Lands case) (1975) 135 CLR 337; 8 ALR 1 …. 142, 185, 274, 335, 358, 466 — v — (Surplus Revenue case) (1908) 7 CLR 179; 14 ALR 625 …. 68, 326, 370 — v — (Wheat case) (1915) 20 CLR 54; 21 ALR 128 …. 65, 310 — v — (Work Choices case) (2006) 229 CLR 1; 231 ALR 1; [2006] HCA 52 …. 69, 238, 240, 241, 288, 328 Newcrest Mining (WA) Ltd v Commonwealth (1997) 190 CLR 513; 147 ALR 42 …. 301 Noarlunga Meat case (O’Sullivan v Noarlunga Meat Ltd) (1954) 92 CLR 565; [1955] ALR 82 …. 196, 394 North Australian Aboriginal Legal Aid Service Inc v Bradley (2004) 218 CLR 146; 206 ALR 315; [2004] HCA 31 …. 303, 386, 389 North Eastern Dairy Co Ltd v Dairy Industry Authority of New South Wales (1975) 134 CLR 559; 7 ALR 433 …. 313 Northern Land Council v Commonwealth (1986) 161 CLR 1; 64 ALR 493 …. 300 Northern Suburbs General Cemetery Reserve Trust v Commonwealth (1993) 176 CLR 555; 112 ALR 87; [1993] HCA 12…. 212, 221 Northern Territory v GPAO (1999) 196 CLR 553; 161 ALR 318; [1999] HCA 8 …. 408

O Osborne v Commonwealth (1911) 12 CLR 321; 17 ALR 242 …. 117, 223 O’Sullivan v Noarlunga Meat Ltd (Noarlunga Meat case) (1954) 92 CLR 565; [1955] ALR 82 …. 196, 394 P Pape v Commissioner of Taxation (2009) 238 CLR 1; 257 ALR 1; [2009] HCA 23 …. 202, 222, 428, 461 Parton v Milk Board (Vic) (1949) 80 CLR 229; [1950] ALR 55 …. 226 Payroll Tax case (Victoria v Commonwealth) (1971) 122 CLR 353; [1971] ALR 449 …. 164, 328, 381 Pearce v Florenca (1976) 135 CLR 507; 9 ALR 289 …. 383 Permanent Trustee Australia Ltd v Commissioner of State Revenue (2004) 220 CLR 388; 211 ALR 18; [2004] HCA 53 …. 208, 209, 224 Peterswald v Bartley (1904) 1 CLR 497; 10 ALR (CN) 65 …. 225 Pidoto v Victoria (1943) 68 CLR 87; [1944] ALR 1 …. 161, 252 Pirrie v McFarlane (1925) 36 CLR 170; 31 ALR 365 …. 167, 170 P J Magennis Pty Ltd v Commonwealth (1949) 80 CLR 382; [1950] ALR 33 …. 501 Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476; 195 ALR 24; [2003] HCA 2 …. 171 Pochi v MacPhee (1982) 151 CLR 101; 43 ALR 261 …. 143 Polyukhovich v Commonwealth (1991) 172 CLR 501; 101 ALR 545 …. 277, 278, 280, 281 Port MacDonnell Professional Fishermen’s Association Inc v South Australia (1989) 168 CLR 340; 88 ALR 12 …. 412 Q

Queensland v Commonwealth (1977) 139 CLR 585; 16 ALR 487 …. 82 — v — (Daintree Rainforest case) (1989) 167 CLR 232; 86 ALR 519 …. 277 Queensland Electricity Commission v Commonwealth (1985) 159 CLR 192; 61 ALR 1 …. 165 Queensland Nickel Pty Ltd v Commonwealth (2015) 318 ALR 182; [2015] HCA 12 …. 209 Quickenden v O’Connor (2001) 184 ALR 260; [2001] FCA 303 …. 232 R R v Anderson; Ex parte Ipec-Air Pty Ltd (1965) 113 CLR 177; [1965] ALR 1067 …. 197, 313, 316, 321 — v Archdall & Roskruge: Ex parte Carrigan v Browne (1928) 41 CLR 128; 34 ALR 297 …. 503 — v Barger (Barger’s case) (1908) 6 CLR 41; 14 ALR 374 …. 59, 163, 211 — v Bernasconi (1915) 19 CLR 629; 21 ALR 86 …. 302, 303, 503 — v Brisbane Licensing Court; Ex parte Danielle (1920) 28 CLR 23; 26 ALR 105 …. 396 — v Burgess; Ex parte Henry (Goya Henry case) (1936) 55 CLR 608; [1936] ALR 482 …. 197, 269, 272, 273, 275, 420, 514 — v Coldham; Ex parte Australian Social Welfare Union (CYSS case) (1983) 153 CLR 297; 47 ALR 225 …. 291, 292 — v Foster; Ex parte Rural Bank of New South Wales; Collins v Hunter (1949) 79 CLR 43; [1949] ALR 493 …. 254, 255 — v Hughes (2000) 203 CLR 535; 171 ALR 155; [2000] HCA 22 …. 281, 349, 411 — v Hush; Ex parte Devanny (1932) 48 CLR 487 …. 459 — v Judges of the Australian Industrial Court; Ex parte CLM Holdings Pty Ltd (1977) 136 CLR 235; 13 ALR 273 …. 233

— v Judges of the Federal Court of Australia; Ex parte Western Australian National Football League (Adamson’s case) (1979) 143 CLR 190; 23 ALR 439 …. 231, 232 — v Kirby; Ex parte Boilermakers’ Society of Australia (Boilermakers’ case) (1956) 94 CLR 254; ALR 163 …. 65, 109, 290, 511 — v Macfarlane; Ex parte O’Flanagan (1923) 32 CLR 518; 29 ALR 353 …. 457 — v Pearson; Ex parte Sipka (1983) 152 CLR 254 …. 497 — v Poole; Ex parte Henry (1939) 61 CLR 634; [1939] ALR 269 …. 272 — v Public Vehicles Licensing Appeal Tribunal of Tasmania; Ex parte Australian National Airways Pty Ltd (1964) 113 CLR 207; [1964] ALR 918 …. 410 — v Richards; Ex parte Fitzpatrick and Brown (1955) 92 CLR 157; [1955] ALR 705 …. 107 — v Secretary of State for Health; Ex parte C [2000] HRLR 400 …. 462 — v Trade Practices Tribunal; Ex parte St George County Council (1974) 130 CLR 533; 2 ALR 371 …. 230, 231 — v Toohey; Ex parte Northern Land Council (1981) 151 CLR 170; 38 ALR 439 …. 420 — v University of Sydney; Ex parte Drummond (1943) 67 CLR 95; [1943] ALR 227 …. 251 — v Vizzard; Ex parte Hill (1933) 50 CLR 30; [1934] ALR 16 …. 310 — v Wilson; Ex parte Kisch (1934) 52 CLR 234; [1935] ALR 130 …. 54 R (Bancoult) v Secretary of State for Foreign and Commonwealth Affairs (No 2) [2009] 1 AC 453; [2008] UKHL 61 …. 423 Railway Servants’ case (Federated Amalgamated Government Railway and Tram Service Association v New South Wales Railway Traffic Employees Association) (1906) 4 CLR 488; 13 ALR 273 …. 57, 58, 162

Railways Standardisation case (South Australia v Commonwealth) (1962) 108 CLR 130; [1962] ALR 547 …. 334, 464 Rederiaktiebolaget Amphitrite v R (1921) 3 KB 500 …. 463, 464, 465 Reid v Sinderberry (1944) 68 CLR 504; [1944] ALR 205 …. 249 Resch v Federal Commissioner of Taxation (1942) 66 CLR 198; [1942] ALR 73 …. 223 Residential Tenancies Tribunal (NSW), Re; Ex parte Defence Housing Authority (Henderson’s case) (1997) 190 CLR 410; 146 ALR 495…. 167, 168, 169, 170, 329, 330 Richardson v Forestry Commission (1988) 164 CLR 261; 77 ALR 237 …. 276 Roach v Electoral Commissioner (2007) 233 CLR 162; 239 ALR 1; [2007] HCA 43 …. 497 Rowe v Electoral Commissioner (2010) 243 CLR 1; 273 ALR 1; [2010] HCA 46 …. 497 Roy Morgan Research Pty Ltd v Federal Commissioner of Taxation (2011) 244 CLR 97; 281 ALR 205; [2011] HCA 35 …. 213 Ruddock v Vadarlis (2001) 110 FCR 491; 183 ALR 1; [2001] FCA 1329 …. 421, 425 S S157/2002 v Commonwealth (2003) 211 CLR 476; 195 ALR 24; [2003] HCA …. 66 Same Sex Marriage case (Commonwealth v Australian Capital Territory) (2013) 250 CLR 441; 304 ALR 204; [2013] HCA 55 …. 403, 404 Scientology case (Church of the New Faith v Commissioner of Pay-roll Tax (Vic)) (1983) 154 CLR 120; 49 ALR 65 …. 505 Seas and Submerged Lands case (New South Wales v Commonwealth) (1975) 135 CLR 337; 8 ALR 1 …. 142, 185, 274, 335, 358, 466 Second Native Title Act case (Western Australia v Commonwealth) (1995) 183

CLR 373; 128 ALR 1 …. 181 Second Uniform Tax case (Victoria v Commonwealth) (1957) 99 CLR 575; [1957] ALR 761 …. 216, 217, 219, 220 Sellars v Nielsen [1943] St R Qd 217 …. 507 SGH Ltd v Commissioner of Taxation (2002) 210 CLR 51; 188 ALR 241; [2002] HCA 18 …. 214, 215 Smith v ANL Ltd (2000) 204 CLR 493; 176 ALR 449; [2000] HCA 58 …. 499 South Australia v Commonwealth (First Uniform Tax case) (1942) 65 CLR 373; [1942] ALR 186 …. 204, 219, 326, 327 — v — (Railways Standardisation case) (1962) 108 CLR 130; [1962] ALR 547 …. 334, 464 South Australia v Totani (2010) 242 CLR 1; 271 ALR 662; [2010] HCA 39 …. 389 Sportsbet Pty Ltd v New South Wales (2012) 249 CLR 298; 286 ALR 404; [2012] HCA 13 …. 321 Spratt v Hermes (1965) 114 CLR 226; [1966] ALR 597 …. 302 State Banking case (Melbourne Corporation v Commonwealth) (1947) 74 CLR 31; [1947] ALR 377 …. 164, 166, 167, 169, 281, 292, 394 State Chamber of Commerce and Industry v Commonwealth (1987) 163 CLR 329; 73 ALR 161 …. 224 State Superannuation Board (Vic) v Trade Practices Commission (1982) 150 CLR 282; 44 ALR 1 …. 232 Steel Rails case (Attorney-General (NSW) v Collector of Customs (NSW)) (1908) 5 CLR 818; 14 ALR 516 …. 214 Stenhouse v Coleman (1944) 69 CLR 457; [1945] ALR 8 …. 249 Stephens v Western Australian Newspapers Ltd (1994) 182 CLR 211; 124 ALR 80 …. 391, 491

Stevens v Head (1993) 176 CLR 433; 112 ALR 7 …. 159 Stolen Generations case (Kruger v Commonwealth) (1997) 190 CLR 1; 146 ALR 126 …. 175, 303, 508 Street v Queensland Bar Association (1989) 168 CLR 461; 88 ALR 321 …. 207, 208, 210, 509, 510 Strickland v Rocla Concrete Pipes Ltd (Concrete Pipes case) (1971) 124 CLR 468; [1972] ALR 3 …. 69, 230 Sue v Hill (1999) 199 CLR 462; 163 ALR 648 …. 81, 147 Surplus Revenue case (New South Wales v Commonwealth) (1908) 7 CLR 179; 14 ALR 625 …. 68, 326, 370 Sweedman v Transport Accident Commission (2006) 226 CLR 362; 224 ALR 625; [2006] HCA 8 …. 510 Sykes v Cleary (1992) 176 CLR 77; 109 ALR 577 …. 80 T Tasmanian Dam case (Commonwealth v Tasmania) (1983) 158 CLR 1; 46 ALR 625 …. 68, 142, 165, 201, 235, 240, 271, 275, 276, 279, 280, 328 Telstra Corporation Ltd v Commonwealth (2008) 234 CLR 210; 243 ALR 1; [2008] HCA 7 …. 499 — v Worthing (1999) 197 CLR 61; 161 ALR 489; [1999] HCA 12 …. 396 Teori Tau v Commonwealth (1969) 119 CLR 564; [1971] ALR 190 …. 301, 302 Theophanous v Herald and Weekly Times Ltd (1994) 182 CLR 104; 124 ALR 1 …. 391, 491 Thomas v Mowbray (2007) 233 CLR 307; 237 ALR 194; [2007] HCA 33 …. 262, 281, 284 Tyler, Re; Ex parte Foley (1994) 181 CLR 18; 121 ALR 153 …. 503 U

Union Steamship Co of Australia Pty Ltd v King (1988) 166 CLR 1; 82 ALR 43 …. 382, 383 Unions New South Wales v New South Wales (2013) 252 CLR 530; 304 ALR 266; [2013] HCA 58 …. 391, 491, 496 University of Wollongong v Metwally (1984) 158 CLR 447; 56 ALR 1 …. 393, 394, 402 V Victoria v Australian Building Construction Employees and Builders Labourers’ Federation (1982) 152 CLR 25; (1982) 41 ALR 71 …. 462 — v Commonwealth (1975) 134 CLR 338; 7 ALR 277 …. 419 — v — (Federal Roads case) (1926) 38 CLR 399 …. 217, 326 — v — (Industrial Relations Act case) (1996) 187 CLR 416; 138 ALR 129 …. 267, 165, 271, 278, 279, 280, 281, 283, 288 — v — (1937) 58 CLR 618; [1938] ALR 97 …. 396, 400 — v — (Payroll Tax case) (1971) 122 CLR 353; [1971] ALR 449 …. 164, 328, 381 — v — (1975) 134 CLR 81; 7 ALR 1 …. 118 — v — (Second Uniform Tax case) (1957) 99 CLR 575; [1957] ALR 761 …. 216, 217, 219, 220 Victorian Chamber of Manufactures v Commonwealth (Industrial Lighting Regulations case) (1943) 67 CLR 413; [1943] ALR 325 …. 252 — v — (Women’s Employment case) (1943) 67 CLR 347; [1943] ALR 294 …. 255 Victorian Stevedoring and General Contracting Co v Dignan (1931) 46 CLR 73; 38 ALR 22 …. 427 Viskauskas v Niland (1983) 153 CLR 280; 47 ALR 32 …. 401, 402, 403 W

W R Moran Pty Ltd v Deputy Commissioner of Taxation (NSW) (1940) 63 CLR 338; [1940] ALR 241 …. 211, 216, 218 Wagner v Gall (1949) 79 CLR 43; [1949] ALR 493 …. 255 Wainohu v New South Wales (2011) 243 CLR 181; 278 ALR 1; [2011] HCA 24 …. 389 Wakim, Re; Ex parte McNally (1999) 198 CLR 511; 163 ALR 270; [1999] HCA 27 …. 349 Waterside Workers’ Federation of Australia v Commonwealth Steamship Owners’ Association (1920) 28 CLR 209; [1920] ALR 233 …. 289 — v J W Alexander Ltd (1918) 25 CLR 434; 24 ALR 341 …. 65 Watson’s Bay and South Shore Ferry Co Ltd v Whitfeld (1919) 27 CLR 268 …. 465 Webster, In re (1975) 132 CLR 270; 6 ALR 65 …. 79 Wenn v Attorney-General (Vic) (1948) 77 CLR 84; [1948] 2 ALR 293 …. 400 West Lakes Ltd v South Australia (1980) 25 SASR 389 …. 385 Western Australia v Commonwealth (First Territory Senators’ case) (1975) 134 CLR 201; 7 ALR 159 …. 82, 118 — v — (Second Native Title Act case) (1995) 183 CLR 373; 128 ALR 1 …. 181 — v Hamersley Iron Pty Ltd (1969) 120 CLR; [1969] ALR 817 …. 225 Wheat case (New South Wales v Commonwealth) (1915) 20 CLR 54; 21 ALR 128 …. 65, 310 White v Director of Military Prosecutions (2007) 231 CLR 570, 235 ALR 455; [2007] HCA 29 …. 262 Whybrow’s case (Australian Boot Trade Employees Federation v Whybrow & Co) (1910) 11 CLR 311; 16 ALR 513 …. 290, 396 Wickard v Filburn 317 US 111 (1942) …. 195

Wik Peoples v Queensland (1996) 187 CLR 1; 141 ALR 129 …. 181, 182 Willard v Rawson (1933) 48 CLR 316; 39 ALR 209 …. 310 Williams v Commonwealth (2012) 248 CLR 156; 288 ALR 410; [2012] HCA 23 …. 429, 463 — v — (No 2) (2014) 252 CLR 416; 309 ALR 41; [2014] HCA 23 …. 429, 463 Women’s Employment case (Victorian Chamber of Manufactures v Commonwealth) (1943) 67 CLR 347; [1943] ALR 294 …. 255 Work Choices case (New South Wales v Commonwealth) (2006) 229 CLR 1; 231 ALR 1; [2006] HCA 52 …. 69, 238, 240, 241, 288, 328 Wotton v Queensland (2012) 246 CLR 1; 285 ALR 1; [2012] HCA 2 …. 495 Wragg v New South Wales (1953) 88 CLR 353; [1953] ALR 583 …. 159, 194, 195, 197 Wurridjal v Commonwealth (2009) 237 CLR 309; 252 ALR 232; [2009] HCA 2 …. 301, 501 X XYZ v Commonwealth (2006) 227 CLR 532; 227 ALR 495; [2006] HCA 25 …. 160, 161, 280, 282

Table of Statutes References are to page numbers Commonwealth A New Tax System (Commonwealth–State Financial Arrangements) Act 1999 …. 332 A New Tax System (Goods and Services Tax) Act 1999 …. 86, 332 Aboriginal and Torres Strait Islander Commission Act 1989 …. 183 Aboriginal and Torres Strait Islander Heritage Protection Act 1984 …. 189 Aboriginal and Torres Strait Islander Peoples Recognition Act 2013 …. 190 Access to Justice (Civil Litigation Reforms) Amendment Act 2009 …. 349 Acts Interpretation Act 1901 …. 111, 120 Administration Act 1903 …. 508 Administrative Appeals Tribunal Act 1975 …. 111, 469 Pt V …. 470 Administrative Decisions (Judicial Review) Act 1977 …. 470 Air Navigation Act 1920 …. 198, 200, 272, 273, 513, 514 s 4 …. 197 Air Navigation Regulations 1921 …. 272 Air Navigations Regulations 1947 …. 198, 403, 514 Age Discrimination Act 2004 …. 479 Ashmore and Cartier Islands Acceptance Act 1933 …. 298

Australia Act 1986 …. 141, 143, 383, 412 s 1 …. 144 s 2 …. 144, 382 s 6 …. 384, 385 s 7 …. 144 s 8 …. 144 s 9 …. 144 s 10 …. 145 s 11 …. 141, 145 s 12 …. 144 s 15 …. 145 s 15(3) …. 145 Australia (Request and Consent) Act 1985 …. 145 Australian Bicentennial Authority Act 1980 …. 426 Australian Capital Territory (Self-Government) Act 1988 …. 296 s 28 …. 403 s 28(1) …. 408 Australian Human Rights Commission Act 1986 …. 479, 481 Australian Industries Preservation Act 1906 …. 57, 229 s 5 …. 229 s 8 …. 229 Australian Information Commissioner Act 2010 …. 483, 484 Australian Citizenship Act 1948 …. 142 Australian National Airlines Act 1945 …. 194, 200

Australian Passports Act 2005 …. 262 Banking Act 1947 …. 312 s 46 …. 312 Broadcasting Act 1942 …. 490 Broadcasting and Television Act 1942 …. 406 Christmas Island Act 1958 …. 298 Clean Energy Regulations 2011 …. 209 Coastal Waters (State Powers) Act 1980 …. 358 Coastal Waters (State Title) Act 1980 …. 358 Common Informers (Parliamentary Disqualifications) Act 1975 s 4 …. 78 Commonwealth Electoral Act 1918 …. 77, 83, 98, 114, 122, 176, 396, 494, 497 s 93(1) …. 77 s 93(8) …. 77 s 93(8AA) …. 77 s 159 …. 102 s 163 …. 78 s 239(1) …. 98 s 239(2) …. 98 s 329A …. 493 s 240 …. 493 s 354 …. 79 Commonwealth Franchise Act 1902 …. 49, 55 s 4 …. 55

Commonwealth Places (Mirror Taxes) Act 1998 …. 208, 209 Commonwealth Public Service Act 1902 …. 55, 467 Commonwealth Public Service Act 1989 …. 110 Commonwealth Shipping Act 1923 …. 245 Communist Party Dissolution Act 1950 …. 256, 257, 260, 261 s 4 …. 256 s 5 …. 256 s 9 …. 257 Conciliation and Arbitration Act 1904 …. 56, 287, 398, 399 Consolidated Revenue Act 1901 …. 53 Constitution Ch I …. 55, 63, 65 Ch II …. 63, 65, 118, 453, 466 Ch III …. 65, 106, 109, 262, 263, 290, 302, 303, 304, 349, 381, 386, 421 Ch V …. 303 s 1 …. 417 s 2 …. 148, 415, 417, 456 s 3 …. 78, 238 s 4 …. 148, 417 s 5 …. 102, 416, 424, 455 s 7 …. 82, 390, 490, 497 s 8 …. 55, 77, 144 s 9 …. 77, 83, 122, 144 s 10 …. 55, 70

s 13 …. 59 s 15 …. 64, 520 s 16 …. 77 s 21 …. 416 s 22 …. 70 s 24 …. 75, 76, 77, 390, 490, 497 s 25 …. 174, 176, 190 s 26 …. 70 s 28 …. 390 s 29 …. 70 s 30 …. 70 s 31 …. 70, 77 s 32 …. 416 s 33 …. 416 s 34 …. 70, 77 s 39 …. 70 s 40 …. 82 s 41 …. 82, 497 s 44 …. 78, 79, 81, 102 s 44(i) …. 80, 81, 147 s 44(iv) …. 80 s 44(v) …. 79 s 46 …. 70, 78 s 47 …. 70, 79

s 48 …. 70, 82 s 48A …. 82 s 49 …. 89, 106 s 50 …. 103 s 51 …. 42, 62, 151, 152, 153, 157, 161, 206, 234, 240, 243, 244, 250, 266, 275, 281, 300, 301, 302, 355, 429, 510, 513, 523 s 51(i) …. 151, 152, 161, 170, 193, 194, 195, 196, 201, 202, 229, 235, 240, 246, 289, 307, 354, 411, 514 s 51(ii) …. 54, 152, 203, 206, 210, 218, 219, 220, 222, 326 s 51(iii) …. 240 s 51(iv) …. 153, 282 s 51(v) …. 170, 394 s 51(vi) …. 152, 153, 243, 246, 249, 258, 262, 289, 466 s 51(vii) …. 152 s 51(xi) …. 152 s 51(xii) …. 153, 205 s 51(xiii) …. 161, 234, 289 s 51(xiv) …. 161, 234 s 51(xx) …. 57, 68, 69, 152, 161, 201, 202, 228, 229, 230, 231, 232, 233, 234, 235, 237, 238, 239, 240, 241, 242, 288, 328, 354, 370, 371, 411 s 51(xxi) …. 240, 395 s 51(xxii) …. 395 s 51(xxiiiA) …. 360, 489 s 51(xxv) …. 163, 239 s 51(xxvi) …. 174, 176, 187, 188, 189, 190, 346

s 51(xxvii) …. 152 s 51(xxix) …. 68, 152, 154, 160, 161, 198, 266, 268, 273, 274, 275, 280, 281, 282, 283, 289, 328, 354, 358, 466 s 51(xxx) …. 68, 152, 161, 265 s 51(xxxi) …. 161, 301, 463, 489, 498, 499, 500, 502 s 51(xxxii) …. 356 s 51(xxxiii) …. 356 s 51(xxxiv) …. 325, 334, 356 s 51(xxxv) …. 134, 152, 238, 239, 241, 242, 252, 278, 287, 289, 291, 292, 293, 328, 369, 370, 373 s 51(xxxvi) …. 70 s 51(xxxvii) …. 62, 238, 288, 337, 355, 370, 371, 375, 411, 513, 518 s 51(xxxviii) …. 143, 145, 358, 411, 412, 513 s 51(xxxix) …. 157, 222, 245, 247, 257, 260, 289, 349, 358, 411, 426, 427, 428, 459 s 52 …. 152, 296, 390, 429 s 52(i) …. 295 s 52(ii) …. 289 s 53 …. 82, 87, 103, 117, 119, 223, 390, 453 s 55 …. 211, 212, 213, 223, 224 s 56 …. 416 s 57 …. 61, 62, 63, 82, 85, 113, 115, 117, 118, 121, 122, 123, 124, 148, 416, 424, 432, 436, 437, 450, 451, 454, 455 s 58 …. 144, 148 s 59 …. 144, 148 s 60 …. 144, 148

s 61 …. 64, 140, 222, 243, 257, 260, 270, 289, 415, 417, 418, 419, 421, 425, 426, 428, 429, 448, 456, 457, 458, 459, 463, 466 s 62 …. 64, 415, 416 s 63 …. 416 s 64 …. 62, 64, 102, 149, 390, 415, 416, 424, 455 s 65 …. 70 s 67 …. 70, 416, 467 s 68 …. 416, 424, 455 s 69 …. 70, 416 s 70 …. 416 s 72 …. 262, 263, 288, 303, 416, 455 s 73 …. 390 s 73(ii) …. 390 s 74 …. 141, 145 s 75 …. 66 s 75(v) …. 66 s 76 …. 66, 145 s 76(ii) …. 303 s 77 …. 109 s 80 …. 302, 489, 502, 503, 510 s 81 …. 53, 219, 222, 426, 443 s 83 …. 222, 416 s 84 …. 70 s 85 …. 70 s 87 …. 41, 60, 70, 369

s 88 …. 53 s 89 …. 70 s 90 …. 152, 213, 224, 302, 328, 390 s 92 …. 133, 153, 162, 200, 234, 253, 305, 307, 308, 309, 310, 312, 313, 314, 315, 316, 317, 318, 319, 320, 321, 322, 381, 390, 489, 504, 510 s 93 …. 70 s 94 …. 68, 326, 370 s 95 …. 70 s 96 …. 67, 70, 203, 215, 216, 217, 218, 325, 326, 430, 508 s 97 …. 70 s 98 …. 193, 201 ss 98–102 …. 201 s 99 …. 201, 205, 206, 207, 209, 210, 219, 235, 355 s 100 …. 41, 62, 201, 235, 350, 355 s 101 …. 310, 347 s 102 …. 193, 356 s 103 …. 416 s 105A …. 333, 432 s 106 …. 61, 381, 515 s 107 …. 61 s 109 …. 61, 152, 169, 170, 171, 268, 296, 327, 390, 393, 394, 395, 399, 402, 403, 404, 405, 406, 407, 408 s 111 …. 295 s 114 …. 57, 153, 214, 243, 390, 466 s 115 …. 153, 390

s 116 …. 162, 250, 251, 303, 39, 421, 489, 505, 506, 507, 508, 510 s 117 …. 207, 208, 390, 490, 508, 509, 510 s 119 …. 243, 325 s 120 …. 62, 325 s 122 …. 62, 82, 153, 170, 289, 295, 300, 301, 302, 303, 304, 346, 354, 407, 429, 508 s 123 …. 515 s 124 …. 515 s 125 …. 295 s 126 …. 416 s 127 …. 174, 176 s 128 …. 59, 60, 122, 133, 145, 158, 242, 370, 371, 380, 416, 513, 514, 515, 516, 526 Copyright Act 1968 …. 213 Corporations Act 1989 …. 234 Corporations Act 2001 …. 232, 337 Council for Aboriginal Reconciliation Act 1991 …. 177 Customs Act 1901 …. 199 Crimes Act 1914 … 160, 280 Criminal Code 1995 …. 262, 282, 405 Div 104 …. 281 s 471.12 …. 495 Defence Act 1903 …. 57, 132, 245, 247, 506, 507 s 8 …. 416 Defence Force Discipline Act 1982 …. 262

Defence Housing Authority Act 1987 …. 169 Defence (Transitional Provisions) Act 1946 …. 253, 254 Disability Discrimination Act 1992 …. 479 Dried Fruits Act 1928 …. 308 Environment Protection (Impact of Proposals) Act 1974 …. 199 Fair Work Act 2009 …. 288, 371 Family Law Act 1975 …. 400 Federal Aid Roads Act 1926 …. 217, 325 Financial Agreement Act 1928 …. 333 Financial Agreement Enforcement Act 1932 …. 433 Financial Agreement Validation Act 1929 …. 333 Financial Framework Legislation Amendment Act (No 3) 2012 …. 429 Financial Transaction Reports Act 1988 …. 205 Franchise Fees Windfall Tax (Imposition) Act 1997 …. 226 Freedom of Information Act 1982 …. 111, 483, 484, 485 Sch 2 …. 483 Fringe Benefits Tax Act 1986 …. 224 Health Insurance Act 1973 …. 500 Housing Assistance Act 1996 …. 366 Immigration Act 1920 s 8A …. 457 Immigration Restriction Act 1901 …. 53 Income Tax Act 1942 …. 218, 219, 224 Income Tax (Arrangements with the States) Act 1978 …. 338

Income Tax (War-time Arrangements) Act 1942 …. 219 Industrial Relations Act 1988 …. 237, 240, 278, 490 Jervis Bay Territory Acceptance Act 1915 …. 296 Judiciary Act 1903 …. 141, 151 s 23(2)(a) …. 495 s 39(2)(a) …. 141 Judiciary Act 1907 s 38A … 141 s 40A …. 141 Legislation Act 2003 …. 110 s 38 …. 111 s 42 …. 93, 111 Legislative Instruments Act 2003 …. 110 Lemonthyme and Southern Forest (Commission of Inquiry) Act 1987 …. 276 Life Insurance Act 1945 …. 398 Marriage Act 1961 …. 395, 403, 404 Matrimonial Causes Act 1959 …. 395, 399, 400 Migration Act 1958 …. 211, 212 National Security Act 1939 …. 248, 253, 254 s 5 …. 248 s 13A …. 249 National Security (Apple and Pear Acquisition) Regulations 1939 …. 248 National Security (Economic Organization) Regulations 1942 …. 253 National Security (General) Regulations 1939 …. 498

reg 59 …. 249, 250 National Security (Industrial Lighting) Regulations 1942 …. 252 National Security (Industrial Peace) Regulations 1940 …. 252 National Security (Land Transport) Regulations 1944 …. 253 National Security (Liquid Fuel) Regulations 1940 …. 255 National Security (Manpower) Regulations 1942 …. 249 National Security (Subversive Associations) Regulations 1940 …. 250, 507 National Security (Supply of Goods) Regulations 1939 …. 502 National Security (Universities Commission) Regulations 1943 …. 251 reg 16 …. 251 National Security (War Service Moratorium) Regulations 1942 …. 255 Nationality and Citizenship Act 1948 …. 80 Native Title Act 1993 …. 177, 180, 181 Navigation Act 1913 …. 401 s 329 …. 400, 401 Northern Territory Acceptance Act 1910 …. 174, 296 Northern Territory (Administration) Act 1974 …. 297 Northern Territory (Self-Government) Act 1978 …. 408 Offshore Petroleum Act 2006 …. 358 Offshore Petroleum (Royalty) Act 2006 …. 358 Offshore Petroleum and Greenhouse Gas Storage Act 2006 …. 359 Ombudsman Act 1976 …. 111, 470, 473, 476 Pacific Island Labourers Act 1901 …. 54, 57 Parliamentary Privileges Act 1987 …. 91, 106

s 3(3) …. 106 s 4 …. 106 s 7 …. 106 s 9 …. 107 Payroll Tax Act 1941 …. 328 Petroleum (Submerged Lands) Act 1967 …. 357, 458, 500 Post and Telegraph Act 1901 …. 57 s 16 …. 57 Privacy Act 1988 …. 481, 482, 483 s 6 …. 482 Privacy Amendment (Private Sector) Act 2000 …. 481 Privy Council (Appeals from the High Court) Act 1975 …. 141 Privy Council (Limitation of Appeals) Act 1968 s 3 …. 141 s 4 …. 141 Public Service Act 1999 …. 353 Racial Discrimination Act 1975 …. 177, 181, 274, 397, 401, 479 s 6A(1) …. 402 Re-establishment and Employment Act 1945 …. 400 Referendum (Machinery Provisions) Act 1984 …. 525 Restrictive Trade Practices Act 1971 …. 230 Royal Style and Titles Act 1953 …. 142 Royal Style and Titles Act 1973 …. 417 Schools Assistance Act 2008 …. 365

Schools Assistance (Learning Together–Achievement Through Choice and Opportunity) Act 2004 …. 363 Seas and Submerged Lands Act 1973 …. 274, 335, 357 Seat of Government Act 1908 …. 295 Seat of Government Acceptance Act 1909 …. 295 Seat of Government Acceptance Act 1922 …. 295 Senate (Representation of Territories) Act 1973 …. 82 Service and Execution of Process Act 1901 …. 55 Sex Discrimination Act 1984 …. 479 Snowy Mountains Hydro-Electric Power Act 1949 …. 334, 359 Social Security Act 1947 …. 471 States Grants (Income Tax Reimbursement) Act 1942 …. 218, 219 Statute of Westminster Adoption Act 1942 …. 140, 147 Sugar Bounty Act 1903 …. 57 Superannuation Guarantee Charge Act 1992 …. 213 Surplus Revenue Act 1910 …. 46, 334, 370 Tax Bonus for Working Australians Act (No 2) 2009 …. 202, 428 Telecommunications Act 1997 …. 394 Trade Practices Act 1965 …. 230 Trade Practices Act 1974 …. 231, 233, 404 s 45D …. 233 War Crimes (Amendment) Act 1998 …. 277 War Precautions Act 1910 …. 247 War Precautions Act 1915 …. 246 War Service Land Settlement Agreements Act 1945 …. 501

Water Act 2007 …. 352, 354 Women’s Employment Act 1942 …. 254 Workplace Relations Act 1996 …. 238 Workplace Relations Amendment (Work Choices) Act 2005 …. 238, 241 World Heritage Properties Conservation Act 1983 …. 201, 236, 275, 276, 277 Australian Capital Territory Human Rights Act 2004 … 511 Marriage Equality (Same Sex) Act 2013 …. 403 New South Wales Administrative Decisions Tribunal Act 1997 …. 486 Air Transport Act 1964 …. 198 Air Transport Act 1965 …. 403 Anti-Discrimination Act 1977 …. 399, 401 Business Franchise Licences (Tobacco) Act 1987 …. 226 Chinese Restriction and Regulation Act 1888 …. 16 Community Protection Act 1994 …. 386, 387 Constitution Act 1902 …. 382, 385 s 5 …. 381 s 5A …. 385 s 7A …. 384 Factories and Shops Act 1912 …. 398 Federation Enabling Act Amendment Act of 1897 …. 45 Forty-four Hours Week Act 1925 …. 397

Industrial Relations (Commonwealth Powers) Act 2009 …. 288, 371 Local Government Act 1919 …. 231 New South Wales Constitution Act 1899 s 10 …. 49 s 57 …. 46 s 87 …. 46 s 96 …. 46 s 125 …. 46 Residential Tenancies Act 1987 …. 169, 329 Seat of Government Surrender Act 1909 …. 295 Northern Territory Magistrates Act 1977 …. 304 Queensland Chinese Immigration Restriction Act 1888 …. 16 Coast Islands Declaratory Act 1985 …. 397 Fair Work (Commonwealth Powers) and Other Provisions Act 2009 …. 371 Judicial Review Act 1991 …. 486 Land Act 1910 …. 178, 181 Land Act 1962 …. 178, 181 Profiteering Prevention Act 1920 …. 307 Queensland Civil and Administrative Tribunal Act 2009 …. 486 Vagrants, Gaming and Other Offences Act 1931 s 7(1)(d) …. 493

South Australia Chinese Immigration Restriction Act 1888 …. 16 Constitution Act 1934 …. 385 s 41 …. 385 Dried Fruits Act 1924 …. 308 Fair Work (Commonwealth Powers) Act 2009 …. 371 Juries Act 1927 …. 503, 504 Northern Territory (Surrender) Act 1907 …. 296 Serious and Organised Crime (Control) Act 2008 …. 389 South Australian Civil and Administrative Tribunal Act 2013 …. 486 Tasmania Commonwealth Powers (Air Transport) Act 1952 …. 410 s 3 …. 410 Constitution Act 1934 …. 386 Fisheries Act 1959 …. 314 Industrial Relations (Commonwealth Powers) Act 2009 …. 371 Victoria Business Franchise (Tobacco) Act 1974 …. 318 Charter of Human Rights and Responsibilities Act 2006 …. 511 Chinese Immigration Restriction Act 1888 …. 16 Commonwealth Powers (Industrial Relations) Act 1996 …. 371 Constitution Act 1975 …. 385 s 16 …. 144 s 65 …. 385

Crimes Act 1958 …. 405 Discharged Servicemen’s Preference Act 1943 …. 400 Equal Opportunity Act 1977 …. 399 Fair Work (Commonwealth Powers) Act 2009 …. 371 Goods Act 1928 …. 168 Marine Act 1928 …. 400 Motor Car Act 1915 …. 167 Pay-roll Tax Act 1971 …. 505 Prices Regulation Act 1948 …. 167 Serious Sex Offenders Monitoring Act 2005 …. 495 Victorian Civil and Administrative Tribunal Act 1998 …. 486 Western Australia Aboriginal Heritage Act 1982 …. 422 Chinese Immigration Restriction Act 1889 …. 16 Constitution Act 1889 …. 386, 491 s 6 …. 391 s 73(2) …. 391 Corporations (Western Australia) Act 1990 …. 411 Electoral Distribution Act 1947 …. 384 Fisheries Act 1905 …. 383 Land (Titles and Traditional Usage) Act 1993 …. 180 Parliamentary Commissioner Act 1971 …. 473 State Administrative Tribunal Act 2004 …. 486 Canada

British North America Act 1867 …. 21, 415 s 91 …. 154 s 92 …. 154 s 95 …. 154 Constitution …. 21 International Chicago Convention on Civil Aviation 1944 …. 270, 273 Convention Concerning the Protection of the World Cultural and Natural Heritage …. 275 Convention on International Civil Aviation …. 198 Convention on Protection of Children and Co-operation in Respect of Intercountry Adoption 1993 …. 271 Art 45(1) …. 271 Convention on the Continental Shelf …. 274 Convention on the Elimination of All Forms of Discrimination Against Women …. 479 Convention on the Territorial Sea and Contiguous Zone …. 274 International Covenant on Civil and Political Rights …. 479 Art 17 …. 481 International Convention on the Elimination of All Forms of Racial Discrimination …. 274, 275, 479 Paris Convention 1919 …. 272 UNESCO Convention Concerning the Protection of the World Cultural and Natural Heritage …. 68 United Kingdom

Australian Constitutions Act 1850 …. 6, 7 Colonial Laws Validity Act 1865 …. 47, 138, 139, 266, 384, 412 s 2 …. 139, 266 s 3 …. 139 Commonwealth of Australia Constitution Act 1900 …. 516 cl 7 …. 18 Companies Act 2006 …. 229 New South Wales Act 1823 …. 4 cl 9 …. 48 New South Wales Constitution Act 1842 …. 6 New South Wales Constitution Act 1855 …. 7 Parliament Act 1911 …. 440 Statute of Westminster 1931 …. 138, 139, 140, 143, 144, 145, 147 s 4 …. 139, 140, 144 s 9 …. 140 United States of America Constitution …. 21, 22, 76, 489 Art 1 §8 …. 195 Sherman Act 1890 …. 57

Contents Foreword Editor’s note Acknowledgments Table of Cases Table of Statutes Part One

Colonisation to Federation

Chapter 1

From Penal Settlement to Representative and Responsible Government

Chapter 2

Towards Federation

Chapter 3

The National Australasian Convention 1891 and the Path to Adelaide

Chapter 4

The Convention Debates 1897–98

Chapter 5

Final Steps to Federation

Chapter 6

The First Decade of Federation

Chapter 7

Reflecting on the Work of the Founders

Part Two

The Commonwealth Parliament

Chapter 8

Federal Parliament

Chapter 9

Parliamentary Committees

Chapter 10

Parliament in Action

Chapter 11

Resolving Deadlocks Between the Two Houses: Section 57

Part Three

The Growth of a Nation

Chapter 12

Historical Factors in a Century of Federalism

Chapter 13

Colony — Dominion — Nation

Chapter 14

Interpreting the Constitution

Chapter 15

Aboriginal and Torres Strait Islander Peoples

Part Four

Commonwealth Legislative Powers

Chapter 16

Trade and Commerce

Chapter 17

The Taxation Power

Chapter 18

Corporations

Chapter 19

Defence Power

Chapter 20 The External Affairs Power Chapter 21

The Conciliation and Arbitration Power

Chapter 22

The Territories Power

Chapter 23 Freedom of Interstate Trade, Commerce and Intercourse Part Five

Federalism

Chapter 24 Commonwealth-State Relations Chapter 25 The Future of the Commonwealth-State Balance Chapter 26 The States Chapter 27

Inconsistency Between Laws of the States and the Commonwealth

Chapter 28 The Reference Power Part Six

Commonwealth Executive Power

Chapter 29 The Executive Government Chapter 30 The Governor-General and the Double Dissolution of 1975 Chapter 31

Exercise and Scrutiny of Executive Power

Part Seven

Rights and the Future

Chapter 32 Constitutional Rights Chapter 33 Constitutional Change Appendix A The Constitution Appendix B Sir John Kerr’s Statement of Reasons Index

[page 1]

Part One Colonisation to Federation

[page 3]

Chapter 1

From Penal Settlement to Representative and Responsible Government In the 18th and 19th centuries Great Britain, as a maritime and colonial power, outstripped its European competitors such as France, Spain, Russia and the Netherlands in creating an empire of unique size and diversity upon which the Sun never set. Even after the loss of American colonies in 1776, Britain, through its colonies, had access to economic resources and trading opportunities which gave it the leading place in the wealth of nations. In 1770 Captain James Cook, sailing under secret imperial instructions, claimed the eastern coastal lands of the Australian island continent on behalf of King George III and called it New South Wales. In the absence of other maritime nations pressing claims, the annexation presented a further opportunity for British imperial expansion. Exceptionally, however, Australia, or New Holland as it was then usually known, was seen in Britain as a place which could absorb the troublesome numbers of convicts incarcerated in British gaols for a miscellany of offences, including stealing personal property from the more fortunate members of British society. The problem was exacerbated because Britain could no longer dispatch its convict population to its former American colonies. The first settlers to Australia were the product of the British penal system, guarded by members of the military sent to maintain discipline in what began in effect as an open prison. The territory of New South Wales extended the entire length of the east coast which Cook had assessed and all of it was made subject to the supreme authority of a Governor, the first being Arthur Phillip. New South Wales

remained a penal settlement until 1823. In later years, not long after [page 4] Federation, the first High Court of Australia decided that although New South Wales was established as a penal colony it was to be regarded as a settled colony and not a conquered or ceded colony. As such, the court pointed out, the first settlers brought the common law of England with them.1 As the years wore on, British authorities began to see Australia, remote though it was, as a land of opportunity for free British settlers as well as for exconvicts and a possible significant supplier of farm products to Britain. Besides, as the number of free settlers increased and the colonies achieved greater productive capacity, it suited British interests for the inhabitants to attend to their own domestic affairs while also demonstrating their loyalty to the home country. In 1823 a temporary Act of the Imperial Parliament known as the New South Wales Act bestowed the vestiges of self-government by empowering the Crown to create a council of five to seven appointed members to advise the Governor on legislative matters. A council of five came into existence in the same year. The Act also gave authority to the Crown to proclaim Van Diemen’s Land as a separate colony and for that colony to have its own council. Another notable development occurred in 1828 when the Westminster Parliament passed an act, known by lawyers as 9 Geo IV c 83, which replaced the Act of 1823 and established a Charter of Justice for New South Wales and Van Diemen’s Land.2 The Act specified that each Council should consist of 10 to 15 members appointed by the Crown, charged with the task of advising the Governor on the making of laws for the good government of the colony. The Act also established the Supreme Courts of New South Wales and Van Diemen’s Land as superior courts independent of the Governors of the colonies. [page 5]

In 1823 the population of New South Wales was about 31,000, of whom about half were convicts. The convict population continued to increase until in 1840 it peaked at 38,000 but by then the total population of the colony had grown to 130,000.3 In the same year there were 18,000 convicts in Van Diemen’s Land out of a total population of 46,000. The daunting size of the island continent and the spread of free settlers to the north and south of eastern Australia and to places as remote from New South Wales as Western Australia contributed to pressures that led Britain to establish the other four colonies. The colonies were created in the following order: •

New South Wales 1823 — having emerged from its penal status;

•

Tasmania 1825 — hived off from New South Wales and called Van Diemen’s Land until 1855 (first settlement established 1803);

•

Western Australia 1829 — without convicts until 1850 (first settlement established 1826);

•

South Australia 1836 — founded by free settlers under an Imperial Act and never a penal colony;

•

Victoria 1851 — separated from New South Wales (first settlement established 1835); and

•

Queensland 1859 — separated from New South Wales (first settlement established 1824). As determined by Britain, each colony was to be ruled by an imperially appointed Governor or Lieutenant-Governor with the assistance of a Legislative Council, the members of which the Crown appointed. Ultimate authority continued to rest with the Governor. However as the populations of all six colonies grew there were grass roots demands for some form of representative (elected) government. Subsequent history witnessed the gradual transformation of the Legislative Councils from their subordinate [page 6]

roles to legislatures in their own right, with power to make laws, impose taxation and control the expenditure of the colonial revenues. The first formal step towards representative government occurred when the Imperial Parliament passed the New South Wales Constitution Act 1842 in response to growing pressures from its inhabitants. It provided for a Legislative Council of 36 of whom two-thirds were to be elected. The Act gave the Council general legislative powers, but at the same time the Governor could withhold assent to any bill and the British Government could disallow any bill, including bills assented to by the Governor. The Act also placed the Governor in virtual control of the appropriation of the colony’s revenues.4 Eight years later, all colonies were afforded the opportunity to have limited representative government under another Imperial Act known as the Australian Constitutions Act 1850. This Act also provided for the separation of Victoria from New South Wales. Importantly, it empowered the colonies, subject to receiving royal assent, to establish bicameral legislatures instead of single Legislative Councils and also to alter their own constitutions.5 There was an element of trust underlying the Australian Constitutions Act given that the Australian continent was so sparsely populated. In 1851 the total non-Aboriginal population was only about 440,000, distributed approximately as follows: •

New South Wales — 197,000

•

Victoria — 97,000

•

Van Diemen’s Land — 69,000

•

South Australia — 67,000

• Western Australia — 7,000. To qualify for these enhanced powers, each colony had to have in place a Legislative Council in which, as in New South Wales, two-thirds of the [page 7] members were elected by inhabitants qualified under the Constitution and the other one-third were nominated by the Crown. At the time, South Australia and

Van Diemen’s Land did not qualify, but shortly afterwards they did. The Legislative Councils of New South Wales, Victoria, South Australia and Van Diemen’s Land took early advantage of the opportunity and drafted constitutions independently, in most major respects comparable to each other, and submitted their bills to England for royal assent. The draft constitutions also gave effect, albeit in different ways, to the principle of responsible government (the exercise of executive power by a ministry which is responsible to — and thus removable by — the Parliament), which was implied but not spelled out in the Australian Constitutions Act 1850. In due course after sundry imperial amendments, each received the requisite approvals.6 Much the same procedures were followed in the case of Western Australia but it was not until 1890 that this colony was sufficiently motivated to meet all the requirements of the Australian Constitutions Act 1850. Queensland was yet to be separated from New South Wales when the foregoing events occurred. In 1859, however, acting under the authority of another Imperial Act,7 the Crown issued letters patent creating the colony. An order in council gave the colony a constitution resembling those of the others. Self-government was thus achieved in all colonies in the following order: •

New South Wales and Victoria — 1855

•

South Australia and Tasmania — 1856

•

Queensland — 1859

•

Western Australia — 1890. [page 8]

From the militaristic and autocratic beginnings of government in the penal colony of New South Wales under the direction of the Governor, by the end of the 1850s the Australian colonies (except Western Australia) had achieved representative and responsible government. For the settlers, this brought both pride in their attainment of self-government, and a good measure of local control as they pursued their own destinies far from the mother country. For

now, though, they remained six loyal — but substantially self-governing — colonies of the British empire.

1.

2.

3.

4. 5. 6.

7.

Delohery v Permanent Trustee Co of New South Wales (1904) 1 CLR 283; 10 ALR (CN) 37. The related assumption that the common law arrived into a legal vacuum in Australia would later be displaced by the High Court’s recognition of pre-existing and continuing native title rights in Mabo v Queensland (No 2) (1992) 175 CLR 1 at 30–2, 78–9; 107 ALR 1 at 19–21, 58–9. The Act stated that the existing laws and statutes of England should be applied in the courts of justice in New South Wales and Van Diemen’s Land so far as they could (reasonably) be applied. The Councils of the two colonies were given power to declare which laws should apply and to make modifications to them. By 1847 the population of the colony had risen to 205,000, of whom only about 7,000 were convicts. In the meantime the number of convicts had continued to grow in Van Diemen’s Land and in 1847 there were 24,000 convicts in a total population of 70,000. South Australia passed up an opportunity in 1842 to elect a general assembly also with a general lawmaking power. The right to vote for members of the Legislative Council was restricted to adult males who possessed freehold land to the value of £100 or were lease holders to the value of £10 per annum. The Constitution Bills of New South Wales and Victoria had some features which the Imperial Act did not encompass. As a result, the British authorities thought it necessary for their Parliament to pass separate Acts known as Constitution Statutes in 1855. In each case the statutes set out the colonial constitution bill as amended in a schedule to the statute and authorised the Queen to assent to it. In similar circumstances involving Western Australia in 1890 the Imperial Parliament passed a similar statute. The constitutions of South Australia and Van Diemen’s Land did not appear in any Imperial enactment since they were authorised by the Australian Constitutions Act 1850. The New South Wales Constitution Act 1855.

[page 9]

Chapter 2

Towards Federation The overwhelming interest of all colonies had been to achieve responsible government. That being within their power by 1850, attention turned to the problems and shortcomings of a large and sparsely populated continent being divided into six colonies — all settled by British colonists and with similar institutions of government. The circumstances should have provided an ideal setting for the creation of a federal system of government. Examples were already in existence in the USA and would be created in Canada in the 1860s, countries which had been colonised from the same British source. But nothing much happened in Australia. An 1846 dispatch to Britain from the Governor of New South Wales, Sir Charles FitzRoy, first suggested some form of governmental institutions be erected over the Australian colonies. In reply, Earl Grey, the Secretary of State for War and the Colonies, issued a dispatch which was even more positive. He stated that there were areas of common interest to all the Australian colonies which would justify the creation of a central legislative authority to deal with them. He gave the example of the possibility of forming an inter-colonial uniform customs tariff. Unfortunately, in the same dispatch he advocated the replacement of the single New South Wales Legislative Council by two Houses and that elections to the Lower House (or Assembly as he called it) should be by district councils and not by direct election of the inhabitants. His views on the latter topics were accorded a hostile reception, and his proposal of some form of federal institutions failed to attract the attention necessary to secure any positive developments. In 1853 a committee of the New South Wales Legislative Council known as the Wentworth Constitutional Committee drafted a new constitution. In its

report, the Committee also advocated the creation of a federal system [page 10] and went so far as to list the subjects which should be of federal concern. They included inter-colonial roads and railways, postage and a general court of appeals. A Victorian committee in the same year acknowledged a need for some form of intermittent federal legislature. These proposals were not taken further in either Britain or Australia. Between 1857 and 1860 the thought of holding a conference to consider whether there should be a federal constitution was bandied about in parliamentary circles in Victoria, New South Wales and South Australia. Select committees in those colonies reported in favour of such a step and the Tasmanian Parliament independently agreed. Queensland remained aloof. However, the suggestion attracted the hostility of the New South Wales Government and the project failed. Nevertheless, as the years passed it became apparent even to the most grudging and insular politicians that there were issues which were beyond the capacities and resources of colonies acting independently to handle satisfactorily, or at all.

The tariff question From the outset, the four smaller colonies relied almost entirely on revenues from customs and excise duties. New South Wales and Victoria also relied on these revenues, but to a lesser extent. This state of affairs continued right up to 1900. For example, the last budget of South Australia before Federation showed £611,000 of the total estimated revenue of £855,000 came from customs and excise duties. The subjects and rates of taxation varied from colony to colony but each colony levied customs duties on goods crossing its borders from the other colonies. New South Wales pursued, in principle, a free trade policy. Victoria maintained a protectionist policy to protect its local industries, such as woollen

cloth and paper manufacturing. Customs houses on the banks of the Murray River gave evidence of sharp conflicts between the two colonies. Modifications to the tariff policies of both colonies over time led to some easing of the tension, but fundamental [page 11] differences remained. The smaller colonies, fearful of the loss of revenues, were not prepared to forego any segment of their fiscal impositions. New South Wales, while opposed to Victorian protectionist tariffs, also received substantial revenues from border duties and maintained customs houses on its side of the Murray.1 Although it voiced frequent opposition to the imposition of ad valorem as distinct from flat rate customs duties, New South Wales imposed those as well. For five years, until the end of 1870, such duties generated £710,000 which, along with Murray River payments by Victoria and South Australia of £216,000, accounted for 13 per cent of the colony’s net revenue.2 In Victoria and New South Wales the tariff question became increasingly complicated, and discussions occurred from time to time between them, without result and sometimes ending in acrimony. In 1855 the two colonies agreed to reduce their border duties to minimum levels, but the arrangement did not last. As time went on Victoria looked to the New South Wales market to dispose of over-production from its protected industries. In 1865, when Victoria still sought greater outlets for its manufactures, it reached agreement with New South Wales at a conference in Sydney to establish free trade at the Murray border in return for Victoria paying a fixed sum to New South Wales and acting as a collecting agent on Murray River borne goods from South Australia. In the meantime, however, Victoria maintained its protective policy in respect of imports from elsewhere, including abroad. The agreement lasted for several years until Victoria withdrew in 1873 yielding to pressures from outright protectionists. Border collections resumed as in the past.

In 1870, at the request of Tasmania, delegates from that colony and New South Wales, Victoria and South Australia met in Melbourne to [page 12] consider setting up a customs union, as Earl Grey had advocated more than 20 years earlier. An attempt to frame a uniform tariff broke down when the Victorians refused to surrender the principle of distinguishing between raw materials and manufactured goods.3 By 1874 it was becoming apparent to the more dispassionate observers in industry and government that the divisive and restrictive nature of separate tariff policies was distorting the sound economic development needed to meet the demands of quickly growing colonial populations, and was fettering the growth of inter-colonial trade. By 1890, when the Convention Debates leading to Federation began, the quest for uniform tariffs had become the major reason for federation — though the issues were far from settled. For the smaller colonies, the loss of the right to impose their own tariffs meant the loss of their major source of revenue and did nothing to allay their fears that New South Wales and Victoria by reason of their much greater numbers would exert a dominant influence in a federal system.

Defence Having gained responsible government, the colonies became more aware of their vulnerability to external aggression and the perceived need to rely on the British Navy for protection. The colonies were also apprehensive about French and German activity in the Pacific area, suspecting, with good reason, that these two countries had their eyes on various Pacific islands. In 1883, following rumours that Germany had New Guinea in its sights, the premier of Queensland, Sir Thomas McIlwraith, sent a magistrate to take possession of New Guinea in the name of the British Crown. Though the action was approved by the other Australian colonies, the incursion of Queensland into

the imperial monopoly of external affairs outraged the Colonial Office. It rebuked the colony and, to the protests of all colonies, dissociated itself from the Queensland action. The attitude of the British [page 13] Government was apparent in a letter from Lord Stanley, the Secretary of State for the Colonies, to Sir Henry Ponsonby, Private Secretary to Queen Victoria: The Australian agents have lately come to me from their governments, with a request that we would annex, or at least undertake the protectorate of (1) New Guinea, (2) the New Hebrides, (3) Samoa, (4) all the islands lying north and north-east of New Guinea. These last are mostly unexplored, in all bigger than France or Germany, and peopled by cannibals. I asked them whether they did not want another planet all to themselves? And they seemed to think it would be a desirable arrangement, if only feasible. The magnitude of their ideas is appalling to the English mind. I have asked them to put their plans on paper for the Cabinet, but did not give much hope that they could be realised at present. It is hardly too much to say that they consider the whole Southern Pacific theirs de jure; the French possession of New Caledonia they regard as an act of robbery committed on them. It certainly is hard for four millions of English settlers to have only a country as big as Europe to fill up.4

Germany did establish a colony in north-eastern New Guinea in 1884, and Britain agreed to establish a protectorate over south-eastern New Guinea (Papua) that same year, and eventually annexed it in 1888. Each colony maintained its own modest military force and none seemed interested in reaching agreement to introduce a common defence policy. Efforts by leading politicians favouring federation, including Sir Henry Parkes, failed to stir the colonies into action, until towards the end of the 19th century, when attitudes changed. In 1887 at an Imperial Conference in London the colonies took the opportunity to ask the British Government to send a senior military officer to Australia to review the colonial defence establishments and to indicate the steps necessary to achieve an effective system of defence. The British Government in 1889 sent Major-General Edwards. The Major-General furnished a scathing report about the weakness of six separate military

[page 14] systems, the paucity of colonial spending on defence and the grudging attitude toward defence expenditure compared with the United Kingdom’s. He stated that while England expended one-third of its income on defence and the United States one-sixth, Australia expended one-fortieth. He reported that a common system of defence could only be carried out by federation of the military forces of the colonies and made a recommendation to that effect. In 1888 the Imperial Defence Act ratified an agreement between the colonies and Britain for the formation of an Australasian squadron with part of the costs being shared by the colonies. Ironically, the first deployments of Australian colonial troops were not in the defence of Australia at all but to assist British interests elsewhere. In 1863 Australian forces joined the British Army in New Zealand’s Maori Wars. Amid expressions of loyalty, the colonies separately dispatched their military forces to South Africa in 1899 to help Britain defend its colonial interests in the Boer War. Again in 1900, shortly before Federation, an Australian contingent went to China as part of an international punitive force to put down the Boxer Rebellion, which had besieged foreign legations in Peking and committed atrocities against foreign missionaries and others in the quest to rid China of foreigners. These interventions established that defence was a national matter, and combined with the realisation of the ineffective nature of separate colonial military forces, provided a strong impetus to federate.

Immigration By 1830 there was a labour shortage in New South Wales and later in Victoria and other colonies. The British Government introduced a system for assisted migration financed in large part by the sale of Crown lands. Unfortunately, the grant of responsible government from 1850 transferred the problem to the individual colonies, much against their will. Though there was a growing resistance to colonists coming from overseas, the colonies had little option but to provide assistance to British and Irish settlers.

As is so often the case in Australia, drought turned to flood. The discovery of gold in both New South Wales and Victoria in 1851 started the first [page 15] Australian gold rushes. News of the prosperity of the Victorian goldfields, and of further discoveries of gold in New South Wales, Queensland and later in Western Australia, quickly spread across Australia and the world. The population of Victoria increased from 97,000 in 1851 to 521,000 in 1859. Not all of this immigration was welcomed. The influx of foreigners, especially from China, anxious to make their fortunes while the deposits still remained in the ground, caused racist sentiments to rise to the surface in the colonies. It was estimated that in Victoria alone in 1858, 34,000 of the 147,000 males on the goldfields were Chinese. The first anti-Chinese immigration laws were passed in Victoria in 1855,5 limiting the number of male Chinese immigrants on any arriving vessel to one per 10 tons of the tonnage of the ship, and further imposing a head tax of £10 on each Chinese immigrant. Soon, the first attempts to evade the anti-Chinese laws were also undertaken — with vessels dropping Chinese immigrants at Port Adelaide and then Robe in South Australia, from where they walked hundreds of kilometres overland to the Victorian goldfields. Chinese prospectors were far from popular amongst the Anglo-Saxon colonial population, leading to riots and attacks on many fields. Colonial parliaments imposed a variety of legal impositions on Chinese prospectors, including requiring them to purchase residence licences, which both imposed a racial residence tax and had the practical effect of making mining claims of the Chinese subject to invasion by non-Chinese miners. During the second half of the 19th century, numbers of Indians and Afghans also sought their fortunes in Australia by one means or another, as the herds of camels in northern parts still bear witness. At the same time, around 60,000 South Sea Islander labourers were brought to Queensland. Matters came to a head in 1888, when the government of Sir Henry Parkes in New South Wales took extraordinary actions to prevent the arrival of Chinese

immigrants amidst a public outcry, to the extent of temporarily disobeying an order of the Supreme Court which would have allowed the disembarkation under existing laws of Chinese immigrants from the ship Afghan. At an Intercolonial Conference in Sydney in 1888 convened [page 16] especially to discuss the ‘Chinese question’, representatives of all colonies agreed that there should be a common policy to restrict Chinese immigration, that is, one Chinese immigrant per 500 tons of tonnage; believing this to be sufficient, they suggested waiving the existing £10 poll tax. In the event, five of the colonies passed new, more restrictive, legislation involving a combination of restrictions by ship tonnage (one Chinese immigrant per 300 or 500 tons) and, in some colonies, increased poll taxes of up to £100.6 While many of the foreign gold miners returned to their native lands, and Chinese immigration to Australia in the 1880s had slowed to a trickle, the attention of the colonies had been firmly focused on the issue of the criteria which should apply for determining which foreign migrants should be admitted. Plainly this was a question that no colony could handle in isolation. When preparing for federation, the colonies were only too anxious to agree that immigration was an appropriate subject for federal action.

Dealing with Westminster For most of the 19th century the colonies were preoccupied with their own internal affairs but this brought them into frequent contact with the Colonial Office. At times, the Colonial Office was less than cooperative in dealing with a colony acting alone, but the colonies were slow to learn that united action in relationships with the United Kingdom would on the whole produce more favourable results. On the economic front the colonies continued to compete with each other in raising loans on the London market. Even when the colonies occasionally acted together, they were at risk of being rebuffed by the Colonial Office, as they were when they expressed views on Pacific affairs, including

Queensland’s attempted annexation of Papua New Guinea. Nonetheless, the colonies could seek strength in their dealings with the Colonial Office through unity. [page 17]

Progress towards Federation Between 1803 and 1880 various inter-colonial conferences, both formal and informal, helped to generate a feeling in colonial political circles that the prospect of having some kind of federation warranted serious attention. However, up to 1883 there was no general feeling that federation, at least for the time being, was an imperative. In 1880 at a conference of all the colonies, Sir Henry Parkes, premier of New South Wales, delivered a proposal in the form of a draft bill to establish a federal council. His proposal was narrowly defeated, mainly because of enduring dissent about what would happen to tariffs. But issues of a national nature were beginning to loom large, including the defence question, made more prominent by Queensland’s attempt to annex New Guinea, and also the vexing question of immigration. In 1883, the colonies met again in Sydney and New Zealand. Fiji also attended. On this occasion, however, Parkes was absent in England and in his absence Samuel Griffith of Queensland became the dominant figure. Although James Service, premier of Victoria, had advocated a plan for federation, under Griffith’s influence the conference agreed upon a draft bill to create the Federal Council of Australasia as a legislative body, representative of all the colonies on an equal footing. The powers allotted to the Council were, in the main, aimed at the protection of Australian interests in the surrounding seas, such as the relations of Australia with the islands of the Pacific. Other subjects involved making various kinds of legal processes effective throughout the colonies. Another provision stated that two or more colonies could refer various subjects such as defence, quarantine, patents, marriage and divorce, and aliens but any resulting Act of the Council would only apply to those colonies. Any colony was

at liberty to withdraw from membership.7 In due course, the Imperial Parliament acceded to the wishes of the conference and in 1885 passed the Federal Council of Australasia Act. The colonies, other than New South Wales and [page 18] New Zealand, and after great delay in the case of South Australia, then passed adopting acts.8 The Council, which was required to meet every two years, passed several Acts in 1886 and 1888 dealing with legal processes and maritime fisheries, but did little else. In 1899 it met in Melbourne for the last time.9 The Federal Council was doomed to fail for three principal reasons. First, and most crucially, the Act attracted hostility in New South Wales and the colony refused to become a member. The Council’s original progenitor Sir Henry Parkes exacerbated the situation by condemning the Council as prejudicial to the formation of a true federation, his motives attracting some speculation at the time. Second, the Council was not provided with an executive, the existence of which is invariably critical in translating legislation into action. Third, the Council’s legislative powers were largely peripheral to the major issues at the time. The tariff question continued to occupy centre stage and growing concerns about defence and immigration were beyond the Council’s purview.

The Tenterfield oration For more than a decade Sir Henry Parkes, five times premier of New South Wales and a free-trader, had been the most influential proponent of federation in the land. His advocacy lost some of its gloss after he reversed his position about the Federal Council, but he remained prominent. When, in 1889, MajorGeneral Edwards reported upon the parlous state of Australia’s defence system — if it could be called that — in the hands of the separate colonies, Parkes

seized the opportunity to press upon his fellow premiers that a true federation had now become a necessity. On his way back from a visit to Brisbane, Parkes stopped at Tenterfield, a small town in northern [page 19] New South Wales not far from the Queensland border, and delivered an address in the School of Arts. The Federal Council, he observed, was altogether inadequate to deal with national business. He spoke of the vital need to create a great federal army to defend the colonies. The colonies, he urged, should get together to create a central government authority to deal with such matters as these on a national footing. Parkes’ oration was at first reported only in New South Wales, but news of it soon spread to the other colonies where it engendered favourable comments. Parkes followed up the speech by corresponding with Victoria’s premier Duncan Gillies, suggesting a federal conference in Melbourne, a suggestion that the premier eventually accepted. It resulted in a federal conference in Melbourne in February 1890.10

The Australasian Federation Conference of 1890 The purpose of the conference was not to debate the constitutional issues involved in creating a federal system but to decide whether Parkes’ proposals for a federation should be debated in a full-blown constitutional convention. Thirteen seasoned politicians representing each of the colonies and New Zealand attended. Among them besides Parkes and Gillies (President of the Conference) were William McMillan from New South Wales (Treasurer, and Parkes’ deputy), Griffith from Queensland, John Cockburn (premier) and Thomas Playford (Leader of the Opposition, but a former and subsequent premier) from South Australia, Andrew Inglis Clark (Attorney-General) from Tasmania and Alfred Deakin (Chief Secretary) from Victoria, all of whom were to become prominent in the subsequent Convention Debates. Indeed, Parkes’ oration would not have gained celebrity status without their influence.

A grand banquet held on the first day set the scene for the proceedings. James Service, a thoroughly committed federalist and former Victorian [page 20] premier, in proposing the toast to a united Australia observed that the ‘lion in the path was the tariff question’. To warm applause from the gallery, Parkes responded with a clarion call for a federation based on common ties of allegiance with Britain. He famously said ‘the crimson thread of kinship runs through us all’.11 The Conference itself was free from the bickering which accompanied so many of the early inter-colonial conferences and it passed several unanimous resolutions to the effect that the time had arrived to justify a union of the colonies under one legislative and executive government. To this end, it resolved that the members of the Conference should take steps to induce their legislatures to send seven delegates each to a national Australasian convention to consider an adequate scheme for a federal constitution.12

1.

2.

3. 4. 5. 6.

7. 8.

New South Wales and Victoria raised a greater share of their revenues than other colonies from such items as railways, land sales, rents, fees, post offices and a miscellany of tolls and charges, but customs and excise duties remained the largest single source of revenue. G Linge, Industrial Awakening — A Geography of Australian Manufacturing 1788 to 1890, ANU Press, Canberra, 1979, p 455. Linge describes in painstaking detail the levels, vicissitudes and application of tariffs in all colonies, particularly New South Wales and Victoria. J Quick and R Garran, The Annotated Constitution of the Australian Commonwealth, Angus & Robertson, Sydney, 1901, pp 104–5. The Letters of Queen Victoria, Second Series, 1862–1885 (ed J E Buckle), vol III, 1879–1885, John Murray, London, 1928, p 433. An Act to Make Provision for Certain Immigrants 1855 (Vic). Chinese Restriction and Regulation Act 1888 (NSW); Chinese Immigration Restriction Act 1888 (Qld); Chinese Immigration Restriction Act 1888 (SA); Chinese Immigration Restriction Act 1888 (Vic); Chinese Immigration Restriction Act 1889 (WA) (Tasmania retained its existing 100 tons and £10). Quick and Garran, note 3 above, pp 111–15. For the text of the Act see C M H Clark, Select Documents in Australian History, Angus & Robertson,

9.

10.

11. 12.

Sydney, 1955, pp 457–61. The Federal Council of Australasia Act remained on the statute books until its repeal by covering cl 7 of the Commonwealth of Australia Constitution Act 1900 (Imp). The covering clause also empowered the Commonwealth Parliament to repeal Acts which the Federal Council had passed, as it subsequently did (with very limited exceptions). Gillies’ first reply to a letter from Parkes advocating the conference was to favour the use of the Federal Council instead of a conference. This may have been a fencing operation occasioned by Parkes’ hostility to the Federal Council of which Victoria was a member. There were 400 guests including the Governor of Victoria, Lord Hopetoun, who would later become the first Governor-General of Australia. For the text of the resolutions, see M Clark, Select Documents in Australian History, vol 2, Angus & Robertson, Sydney, 1980, p 479.

[page 21]

Chapter 3

The National Australasian Convention 1891 and the Path to Adelaide All colonies responded favourably to the resolutions of the 1890 Australasian Federation Conference, and the first National Australasian Convention met in 1891. Forty-five delegates, including three from New Zealand, assembled in Sydney for the Convention, which began on 2 March. In each colony, the delegates were chosen by ballot from the Upper and Lower Houses and included Opposition members. Not unexpectedly, the New Zealanders attended more in the capacity of observers than delegates. Newcomers who were to be prominent participants included John Downer and Charles Kingston from South Australia and Edmund Barton from New South Wales. In 1891, universal franchise was not a feature of British parliamentary institutions and the six colonies were no exception, with eligibility to vote depending for the most part upon some kind of property qualification. Consequently, the delegates consisted only of white males, predominantly from the professional, merchant, producer and propertied classes. All had some familiarity with the federal Constitution of the United States, and the Canadian Constitution, which presented a clear picture of how British institutions could be adapted to a federal system. More was known about the United States Constitution, under which the Congress possessed only specified legislative powers, than the more recent Canadian Constitution created by the British North America Act in 1867. The Canadian Constitution instead allotted enumerated legislative powers to the provincial parliaments, with the residuary power vested in the Dominion Parliament. That was out of the question in Australia, because it appeared to the Australians

[page 22] that the Canadian central government would therefore be too strong; the Australian federal government was to be no larger than necessary, with power retained by the states except as necessary. Ironically, Australia has ended up with a federal government considerably more powerful than Canada’s. For its part, the United States Constitution incorporated virtually a complete separation of powers and provided for a non-parliamentary presidential system of executive government, which was incompatible with the Australian commitment to responsible government in accordance with British tradition. However, the distribution of legislative power that left residuary power in the hands of the states was attractive to the Australians. Thus, considerable attention focused on the various powers that the United States Constitution vested in the Congress. Among the delegates, Andrew Inglis Clark from Tasmania came armed with a comprehensive draft constitution that was to prove invaluable to the Convention (and which was closely based on the United States Constitution, on which subject Inglis Clark was the undoubted expert amongst Australian federalists). The premier of South Australia, Charles Kingston, also had prepared a constitution, based it seems to some extent on Inglis Clark’s work, and Richard Baker, of the same colony, provided the gathering with an informative manual on federal systems.1

Resolution introduced by Parkes Sir Henry Parkes, presiding over the Convention, introduced a set of four Federal Resolutions which embodied the prevailing fundamental thinking about federation: 1. That the powers and privileges and territorial rights of the several existing colonies shall remain intact, except in respect to such surrenders as may be agreed upon as necessary and incidental to the power and authority of the National Federal Government.

[page 23] 2. That the trade and intercourse between the federated colonies, whether by means of land carriage or coastal navigation, shall be absolutely free. 3. That the power and authority to impose customs duties shall be exclusively lodged in the Federal Government and Parliament, subject to such disposal of the revenues thence derived as shall be agreed upon. 4. That the military and naval defence of Australia shall be intrusted to federal forces, under one command.2 In furtherance of these principles, Parkes proposed institutions of federal government in the following terms: 1. A parliament, to consist of a senate and a house of representatives, the former consisting of an equal number of members from each province, to be elected by a system which shall provide for the retirement of one-third of the members every … years,3 so securing to the body itself a perpetual existence combined with definite responsibility to the electors, the latter to be elected by districts formed on a population basis, and to possess the sole power of originating and amending all bills appropriating revenue or imposing taxation. 2. A judiciary, consisting of a federal supreme court, which shall constitute a high court of appeal for Australia, under the direct authority of the Sovereign, whose decisions, as such, shall be final. 3. An executive, consisting of a governor-general and such persons as may from time to time be appointed as his advisers, such persons sitting in Parliament, and whose term of office shall depend upon their possessing the confidence of the house of representatives, expressed by the support of the majority.4 Parkes’ resolutions did not mention the ‘crimson thread of kinship’ he had previously declared at the 1890 Australasian Federation Conference, but subsequent frequent expressions of loyalty to the British Crown during [page 24]

the proceedings speak for themselves. Parkes himself, speaking adversely about thoughtless republicanism, enthused: I contend that the woman who sits on the English throne … is no common woman in the administration of affairs; that she has disclosed a genius for government, a close attention to business, and a keen foresight which have never been equalled by any monarch known to history; and that she has, above all things, disclosed an amazing insight in her dealings with every constitutional difficulty that has arisen.5

Neither did Parkes mention that a federal constitution should contain its own power of amendment, but it is probable he thought that would be a question to be sounded out during the proceedings, as in fact it was. General discussion on Parkes’ resolutions occupied several days. There was debate on whether the Senate should have the power to amend the bills appropriating revenue or imposing taxation passed by the House of Representatives. Inevitably there was a debate about the fiscal question, although it was clear that the delegates expected the Commonwealth to have an overriding power to impose customs and excise duties. On 18 March the assembly appointed three committees to formulate a constitutional scheme; one to consider constitutional machinery, another to consider finance, taxation and trade regulation, and another to deal with the judiciary. After several days the committees completed their work and it then became the task of a drafting subcommittee, consisting of Samuel Griffith, Andrew Inglis Clark, Edmund Barton and Charles Kingston, to give effect to their reports in the form of a draft constitution.6 The drafting committee’s work drew heavily on the draft constitution that Inglis Clark had prepared. In fact, the bill drafted by the committee closely resembled, in both structure and substance, the constitution eventually agreed upon in 1899. It incorporated the separation of powers, with separate chapters dealing with the Parliament, the executive and the [page 25]

federal judicature. There were also separate chapters dealing with finance and trade, the states, new states, miscellaneous provisions, and amendments to the constitution. As to the legislature, it provided that there should be an equal number of senators (eight) chosen by each of the state Parliaments for six years. It stated that there should be one member of Parliament for every 30,000 people in the House of Representatives. In relation to the respective powers of the two Houses, the draft constitution gave effect to a compromise over money bills. It provided that money bills and bills imposing taxation should originate in the House of Representatives and the Senate should have power to pass or reject them, but not to amend them. It could, however, suggest amendments. Otherwise, the Senate and the House of Representatives were given equal legislative power. The legislative powers specified in the draft constitution bill largely repeated those contained in Inglis Clark’s draft, and the substance of most of them was ultimately incorporated in the subjects of the Commonwealth Parliament’s legislative powers included in the final draft of the Constitution in 1898. A few more powers were added in that year, including insurance; invalid and old-age pensions; acquisition of property on just terms, and notably, conciliation and arbitration for the prevention and settlement of interstate industrial disputes. With few amendments, the Convention adopted the bill in its entirety. Quick and Garran observed that ‘in those few days Federation came down from the clouds to the Earth; it changed from a dream to a tangible reality’.7

Submission of the draft Constitution and the sequel On the final day, the Convention adopted a resolution moved by Griffith, which recommended that each colonial Parliament should submit the constitution for popular approval. A second resolution recommended that as soon as three colonies adopted the constitution, the British Government [page 26]

should be asked to give effect to it. Then, with three cheers for the Queen and for its president ringing in their ears, the delegates departed. But the Convention’s hopes were doomed to disappointment. Parkes made strenuous efforts to induce action in the New South Wales Parliament, but there was a strong anti-federalist movement led by George Dibbs. George Reid, then Leader of the Opposition, was at best ambivalent. Thirty newly elected members of the recently formed Labour Party, which had representation in the Parliament for the first time, were outright opponents. Their position was that such a constitution put at risk the prospects of a more effective charter of government with more emphasis on democratic rights coming into being. At this time, moreover, New South Wales had begun to experience the initial touches of a major economic depression. In 1894 there was a general election and Parkes lost his seat, but by then all hopes of adopting the constitution had ended.8 The New South Wales attitude spelt doom for the constitution’s chances in the other colonies, where major economic problems were also emerging. In Victoria, an extensive debate in both Houses revealed various levels and kinds of dissatisfaction about particular provisions and eventually the whole approval process stalled. Desultory efforts to obtain approval in South Australia also failed. Queensland and Western Australia did nothing at all and Parkes, long regarded as the father of Federation, died a disappointed man in 1896.

Deficiencies in the 1891 Constitution Bill The completion of the Constitution Bill was a remarkable achievement for the times, attributable to a handful of political leaders. But it left several questions unanswered. 1. Relations between the Upper and Lower Houses After the Convention agreed that the Senate could reject any bill passed by [page 27] the Lower House, the stage was set for disagreements, yet the bill did not

embody any machinery for settling them. The omission probably illustrated the difficulty reconciling responsible government at federal level with the centrifugal interest of the colonies and their reluctance to equip the Commonwealth with any greater legislative power than necessary. 2. Transfer of exclusive power to the Commonwealth to impose customs and excise duties All the colonies had relied on customs and excise duties as a major source of revenue, and in the smaller colonies these taxes were the major source of revenue upon which they depended for survival. In return for the loss of these sources of income, the states were only to receive from the Commonwealth, in proportion to their populations, surplus revenue, which the exclusive power over customs and excise would help the Commonwealth to raise. Thus the states were left at the mercy of the Commonwealth as to the level of tariff and other forms of taxation which the Commonwealth might impose and the size of the revenue surplus which would result. 3. The choosing of senators The authority given to the states to choose their own senators instead of providing for senators to be elected by popular vote did not sit easily with the history of the federal movement. The rejection of Earl Grey’s proposal in 1847 to have indirect elections through municipal councils to the New South Wales Legislative Council had previously illustrated federalists’ uneasiness with indirect election. Empowering state governments to appoint senators also had the potential to paralyse the federal parliamentary process. To take a modern example, in 2006 the Liberal/National coalition held office federally but all states had Labor governments. If senators had been chosen under the 1891 system, it would have been possible for the states to stack the Senate overwhelmingly with Labor senators. 4. Other matters Under the 1891 bill the size of the House of Representatives was to be determined by having one member for every [page 28]

30,000 electors, which in the light of a rapidly increasing Australian population would produce a Lower House of a size disproportionate to the Senate, fixed in number at eight for each state. The formula for amending the constitution also employed an indirect election process. A bill passed by the Federal Parliament had to be submitted to conventions in each state consisting of members elected by the electors and then to be approved by the majority of the conventions as well as a total majority of electors.

Adversity and the federal cause The Convention in 1891 was not the result of any groundswell of public opinion in support of federation. For the bulk of the colonial inhabitants, the much more important matter was to secure and maintain a respectable standard of day-to-day living and many were already aware of emerging signs of an economic depression which would shortly engulf all colonies and persist for several years. Roland Norris’ account describes some of its more prominent features. The great depression of the 1890s was a traumatic experience of the colonies. Excessive speculation and overinvestment in increasingly unprofitable sections of the economy, and declining overseas prices and returns resulted in financial chaos. Victoria’s land boom collapsed. Banks closed. Trade stagnated. Revenue declined. Pastoral investment peaked in 1891, and plunged until 1897. The tide of British capital investment ebbed. Loan raising overseas by colonial governments virtually ceased in 1894, and Victoria was forced out of the London market for most of the decade. Immigration almost stopped, and emigration took place from the eastern colonies to the West Australian goldfields and New Zealand. The rate of population increase during the 90s as people also delayed marriage or practised restraint, was nearly half that of the 80s and lowest by far since the settlement of Australia. Unemployment possibly reached 30% of the workforce. Economic progress, which, despite periodic droughts and [page 29] occasional recessions generations of Australians had come to regard as the natural order, came to a halt.9

The sheer inability of six independent colonies, some thinly populated, to cope with economic problems that transcended their borders gradually became

apparent, even to the most inward looking colonial politicians. Bewildered communities also began to realise that parochial politics was a contributory cause to the onset of economic depression and that they could not look to their legislatures and governments to protect their livelihoods. This state of affairs provided the stimulus necessary to place the federal movement eventually on its feet again, supported by a growing number of public participants. One community body to become active was the Australian Natives Association, formed in Melbourne in 1871. By 1890 it had over 7,000 nativeborn members.10 The Association had already demonstrated its zeal for federation at a rally it convened in Melbourne shortly before the Federal Conference began in 1890.11 In New South Wales, Edmund Barton, who had risen to prominence during the 1891 convention, was similarly motivated and in visits to southern New South Wales he was conspicuously successful in bringing about the formation of Federation Leagues in Corowa, Albury and other places in the Murray Valley. In 1893 he formed the Australasian Federation League as a central citizens’ body committed to federation as the common aim of Australian patriotism. The creation of other leagues followed in various Victorian towns and later in Adelaide and even Brisbane. Especially active were the so-called Border Leagues from both sides of the Murray River, where communities were especially vulnerable to the tariff battles. [page 30]

Corowa Conference 1893 In July 1893, on the initiative of the Border Leagues, the Australasian Federation League convened a two-day conference at Corowa, a town on the Murray River in New South Wales, to discuss ways to promote the federal cause. Delegates of various branches of the Australian Natives Association attended in force and representatives of various business interests were also present. The meeting attracted widespread publicity in the press. It culminated in a unanimous resolution that each colonial Parliament should pass an Act for an

election of representatives to attend a convention charged with the task of drafting a federal constitution for submission to a popular referendum. According to Quick and Garran12 it was an achievement which was to make the conference historically important. The resolution became the subject of considerable attention in the press and in the Federation Leagues and at various public meetings. The culmination was a conference of premiers convened in 1895 on the initiative of the premier of New South Wales, George Reid.

Premiers’ Conference 1895 All premiers attended the conference held in Hobart on 29 January. It was now common ground that federation should occur as soon as possible and, in line with the Corowa Conference, the gathering resolved that there should be a convention consisting of 10 representatives from each colony to frame a constitution13 for submission to a direct vote of the electors. If electors in three colonies accepted the constitution it should be transmitted to the Queen for the necessary legislative action. [page 31]

The Enabling Act New South Wales was the first cab off the rank and passed its Enabling Act in line with the premiers’ resolutions. Victoria, South Australia and Tasmania followed. Instead of a popular election of delegates, Western Australia decided that the Legislature should choose its delegates. Queensland did not pass an Act at all because of unsettled rivalries between the northern, southern and central regions of the colony, and did not send delegates to the forthcoming convention.14

Bathurst Convention 1896 A convention held in 1896 at Bathurst, known as the People’s Federal Convention, was attended by some 200 representatives mainly from pro-

federation organisations, the Federation Leagues and the Australian Natives Association as well as municipal councils, chambers of commerce, various progress associations, and labour leagues. As a popular gathering, it attracted considerable attention in the press. Discussions indicated widespread support for the 1891 draft constitution as the basis for a new constitution. According to Quick and Garran, the People’s Federal Convention had the effect of dissipating the atmosphere of suspicion that had hung about the 1891 draft constitution.15 Although the representatives were mainly from New South Wales, influencing that colony’s previous negative attitude was a significant contribution of the People’s Federal Convention.

Convention elections 1897 After long delays due to problems in Western Australia and Queensland, popular elections for convention delegates in the other four colonies were fixed for 4 March. There were strong contests in each: the lowest number of candidates being 32, in Tasmania, and the highest being 40 candidates, [page 32] in New South Wales.16 Although this was an opportunity for electors at large to choose a range of candidates, of the 50 successful candidates only two were neither existing nor former parliamentarians.17 Conspicuous among the failures in New South Wales were the Catholic Archbishop of Sydney, Cardinal Moran, and 10 candidates chosen by the Labor League. Victorian delegate William Trenwith was the only Labor man. Almost at the last moment, the Western Australian Parliament selected its 10 delegates, all of whom were sitting members. New faces in 1897 who were to become prominent in the debates included the New South Wales premier, George Reid, and his compatriot Richard O’Connor; John Quick, Isaac Isaacs and Henry Higgins from Victoria; and the premier of Tasmania, Edward Braddon. Old hands from 1891 included Edmund Barton, Alfred Deakin, Charles Kingston, John Downer and John

Cockburn. After six years in abeyance, the stage was set for delegates to assemble in Adelaide to push on with the work of drafting a federal constitution for Australia.

1.

2. 3. 4. 5. 6. 7. 8. 9. 10. 11. 12. 13.

14. 15. 16. 17.

R C Baker, A Manual of Reference to Authorities for the Use of the Members of the National Australasian Convention which will Assemble at Sydney on March 2, 1891, for the Purpose of Drafting a Constitution for the Dominion of Australia, W K Thomas & Co, Adelaide, 1891. Official Report of the National Australasian Convention Debates, Sydney, 4 March 1891, p 23 (Sir Henry Parkes). Parkes did not specify the number of years. See note 2 above. Official Report of the National Australasian Convention Debates, Sydney, 18 March 1891, p 323 (Sir Henry Parkes). The drafting was completed over three days on board the SS Lucinda on the Hawkesbury River. J Quick and R Garran, The Annotated Constitution of the Australian Commonwealth, Angus & Robertson, Sydney, 1901, p 129. A prominent elderly New South Wales anti-federalist and former premier, Sir John Robertson, triumphantly pronounced that federation was as dead as Julius Caesar. R Norris, ‘Towards a Federal Union’ in B Hodgers (ed), Federation in Canada and Australia: The Early Years, ANU Press, Canberra, 1978, p 191. Norris, note 9 above, p 179. Quick and Garran, note 7 above, p 151. Quick and Garran, note 7 above, p 153. The architect was Dr John Quick, then a prominent member of the Australian Natives Association. For the resolutions passed at the conference, see C M H Clark, Select Documents in Australian History, Angus & Robertson, Sydney, 1955, pp 501–3. While supporting the vote for a convention, the premiers of Western Australia and Tasmania were unwilling to commit themselves to the requirement that a Constitution Bill should be submitted to the electors without any intervention by their colonial legislatures. There were aspirations that Queensland should be divided into three separate states. Quick and Garran, note 7 above, p 163. Despite the number of candidates, voter turnout varied. The poorest occurred in Victoria, where only 99,000 out of a possible 238,000 voted. One was J T Walker from New South Wales and the other was P M Glynn of South Australia.

[page 33]

Chapter 4

The Convention Debates 1897– 98 Adelaide session: 22 March–23 April 1897 The National Australasian Convention was convened in March 1897 in Adelaide, after a gap of six years since the previous session in Sydney. Following the appointment of South Australian Premier Kingston as president, the assembly had to decide whether it would use the 1891 draft constitution as the basis on which to build. The decision was that having been chosen by the people, the Convention’s mandate was to start afresh. However, as the debates continued, the value of the 1891 draft inevitably became more appreciated, and by the end the draft that the Convention produced closely matched the 1891 draft in both form and substance. Barton’s resolutions Edmund Barton, appointed as leader of the Convention, began by introducing a set of resolutions. These resolutions corresponded with the proposals of Parkes in 1891, except that they added duties of excise and bounties to the exclusive power to levy customs duties proposed to be vested in the Federal Parliament, and enunciated that there should be no alteration of the boundaries of a colony without its consent. His resolutions read: That, in order to enlarge the powers of self-government of the people of Australia, it is desirable to create a Federal Government which shall exercise authority throughout the Federated Colonies subject to the following principal conditions — i.

That the powers, privileges, and territories of the several existing colonies shall remain intact, except in respect of such surrenders as

[page 34] may be agreed upon to secure uniformity of law and administration in matters of common concern. ii.

That, after the establishment of the Federal Government, there shall be no alteration of the territorial possessions or boundaries of any colony without the consent of the colony or colonies concerned.

iii. That the exclusive power to impose and collect duties of Customs and excise, and to give bounties, shall be vested in the Federal Parliament. iv.

That the exclusive control of the military and naval defences of the Federated Colonies shall be vested in the Federal Parliament.

v.

That the trade and intercourse between the Federated Colonies, whether by land or sea, shall become and remain absolutely free.1

For the purpose of implementing his resolutions Barton also proposed institutions of federal government similar to those proposed by Parkes, except that whereas Parkes envisaged the Senate primarily as a House of review, Barton placed most emphasis on that House as a ‘States Assembly or Senate’ in contrast to ‘National Assembly or House of Representatives’. His proposals read as follows: Subject to the carrying out of these, and such other conditions as may be hereafter deemed necessary, this Convention approves of the framing of a Federal Constitution which shall establish — (a) A Parliament, to consist of two Houses, namely, a States Assembly or Senate, and a National Assembly or House of Representatives: the States Assembly to consist of representatives of each colony, to hold office for such periods and be chosen in such manner as will best secure to that Chamber a perpetual existence, combined with definite responsibility to the people of the State which shall have chosen them: the National Assembly to be elected by districts formed on a population basis, and to possess the sole power of originating all Bills appropriating revenue or imposing taxation. [page 35] (b) An Executive, consisting of a Governor-General, to be appointed by the Queen, and of such persons as from time to time may be appointed as his advisers. (c) A Supreme Federal Court, which shall also be the High Court of Appeal for each colony in the Federation.2

Appointment of select committees

Three select committees were appointed to undertake the necessary groundwork and most delegates participated in one or another — the Constitutional, Finance and Judiciary Committees. The Constitutional Committee’s task was to draft a bill after the other two committees had reported. It appointed a Drafting Committee consisting of Barton, Downer and O’Connor, which ended up playing a pivotal role in the success of the whole enterprise of federation.3 All committees worked expeditiously and by mid-April the Constitutional Committee was able to submit a draft bill to the Convention. The ensuing debate produced the following principal outcomes. Size of the Parliament The size of the House of Representatives, instead of being unrestricted, was to be increased on the footing that the number of members would be as near as practicable to twice the number of members of the States Assembly. The new clause was to become a prominent feature of the Australian federal system. Money bills Quick and Garran described a final two-day debate on money bills as the most momentous in the Convention’s whole history.4 By a close vote of 25 to 23, the Convention upheld the compromise of 1891 which gave the [page 36] Upper House a power to reject, but not a power to amend, money bills initiated in the House of Representatives. The Senate was given a power to suggest amendments. A contrary vote, according to Quick and Garran, would have imperiled the federal cause.5 Inter-State Commission With little debate, the Convention voted for the establishment of an Inter-State Commission, an idea inspired by the United States Inter-State Commerce

Commission, which was created in 1887 (and abolished in 1995). However, unlike the United States Commission, the Australian Commission was at this stage only given power to maintain laws relating to trade and commerce upon railways and interstate rivers. Rivers The Constitutional Committee recommended giving the Federal Parliament a power to control and regulate all navigable rivers within the Commonwealth and the use of their waters. The proposal placed in Commonwealth hands a resolution of long-standing disputes between New South Wales, Victoria and South Australia about the sharing of the resources of the River Murray and its tributaries. But the proposal failed. A more modest proposal to restrict Commonwealth control to the Murray, Darling and Murrumbidgee Rivers and their tributaries also failed. Later, at the instigation of South Australia, the question gave rise to a major debate that lasted almost a fortnight at the Melbourne session in 1898. Additional legislative powers Some additional powers were allotted to the Commonwealth Parliament, the most significant being an extension of the corporations power. Whereas the corporations power agreed upon in 1891 was limited to making laws with respect to the status of corporations, the power was extended to [page 37] become one to make laws with respect to ‘foreign corporations, and trading or financial corporations’. Insurance and ‘fisheries in intercolonial waters’ were also added to the federal list, but a proposal for the Commonwealth to be able to legislate with respect to industrial disputes extending beyond the limits of a single state was rejected.

Amendment of the Constitution Under the 1891 draft, the fate of a bill to amend the Constitution was to be determined by conventions elected by the voters in each state. The Adelaide Convention changed the formula by substituting instead that a bill to amend the Constitution should be submitted directly to the electors and that, if approved by an overall majority in the majority of states, it should become law. This was, and is, the only section in the Constitution providing for popular participation in the law-making process. Further debates On 22 April 1897 the Convention adopted the Drafting Committee’s Constitution Bill and decided to meet again in September in Sydney to handle unfinished business. It was necessary to leave the drafting incomplete so the premiers could visit England to join in Queen Victoria’s diamond jubilee celebrations.6 In accordance with the Enabling Acts,7 the participating colonial legislatures took the opportunity to examine what their delegates had done. Many points of departure emerged which revealed differences between the colonies and within their own Houses. The financial clauses and the absence of any deadlock provision were the most controversial areas. Altogether 286 suggested amendments, many in conflict with each other, were presented to [page 38] the Sydney session on behalf of the 10 colonial Houses of Parliament which had considered the bill in the interim.8

Sydney session: 2–24 September 1897 Four questions occupied almost the entire Sydney session. The first of these questions was how the expected federal financial surplus could be distributed fairly and at the same time offer a guarantee to smaller states against disruption

of their finances following the surrender of their power to levy customs and excise duties. The financial clauses prompted widely different responses and the debate concluded without a solution, even for the interim arrangements which were to apply in the formative years of the Commonwealth. The other three questions were about the constitution and role of the Senate. Senate representation Some New South Wales delegates continued to object to the equal representation of the colonies in the Senate. They sought instead to have proportional representation according to the population of each state in a Senate consisting of not less than 40 senators with a minimum of three senators per state. They were swimming against the tide. The proposal not only failed to arouse enthusiasm, but the resolution to reopen the issue suffered one of the most decisive rejections in the entire series of debates — five votes in favour to 41 against.9 Money bills The Legislative Council of Western Australia had submitted that the Senate should have power not only to reject money bills but also to amend them. At the instigation of the premier, Sir John Forrest, the Convention agreed [page 39] to debate the question even though it had been conclusively debated at the Adelaide session. The proposal was defeated by 28 votes to 19,10 compared with 25 to 23 at Adelaide, and it was not raised again. Settling of deadlocks In the four months that elapsed between the Adelaide and Sydney sessions, the legislative assemblies of New South Wales, Victoria, South Australia and Tasmania had produced a variety of deadlock clauses, setting the scene for the

torrid debate which was to follow. The debate lasted a week, and the official record of debate occupies 440 pages of the 1,110 pages of the Convention proceedings. After two days, the Convention eventually decided by 30 votes to 15 that there had to be a deadlock clause and the ensuing debate was over several different proposals. One proposal emanating from the Victorians and promoted by Isaac Isaacs was for a bill that was the subject of disagreement to be submitted to a national referendum of voters, which would decide whether the disputed measure should become law. Others sought the resolution of a deadlock by the dissolution process. One suggestion was that the House of Representatives should be dissolved in the first instance and if, following the ensuing election, the dispute continued, it should be followed by a dissolution of the Senate and then a joint session of the two Houses to resolve the issue. The alternative was for a simultaneous dissolution of both Houses. Eventually, after the debate itself almost seemed to become deadlocked, the pendulum swung in favour of simultaneous dissolution of both Houses, but the final decision was yet to be made. With more than half the clauses still to be considered, the Convention adjourned to meet in Melbourne in January 1898. The achievements of the Sydney session were indeed modest but, fortunately, behind the scenes the Convention’s four committees had reached substantial agreement on most of the matters still to be debated. [page 40] In the interval between Sydney and Melbourne, many members of the New South Wales Parliament expressed their disenchantment about the Convention proceedings and launched a determined effort to have the idea of federation defeated. The upshot was a successful amendment to the Enabling Act to increase the required minimum affirmative vote in the event of a referendum to approve a constitution from 50,000 to 80,000. This was to have important consequences.

Melbourne session: 20 January-17 March 1898 The Convention resumed for its protracted final sessions in Melbourne at the height of summer. A sense of finality commanded close attention to many details of the draft bill and occupied the Convention for several sweltering weeks. The official records of the debates occupy some 2,500 pages. As Chairman of Committees, Richard Baker was in charge of the business of the Convention. Taking up the slack from the Sydney session he ensured that every amendment suggested by every legislative body was put to a vote. As in earlier sessions rivers, financial clauses, railway rates and deadlocks featured prominently. Rivers A major debate on the subject lasted almost a fortnight but, as in Sydney, nothing was achieved. In the end, so far from the Commonwealth receiving any express power about rivers, the meeting decided that the Commonwealth in the exercise of its trade and commerce powers should be prohibited from abridging the right of any state or its residents ‘to the reasonable use of the waters of rivers for conservation or irrigation’ as s 100 provides. This was an instance of the founders failing to rise to the occasion. The fetter imposed on the Commonwealth’s powers left the states, notably New South Wales, Victoria and South Australia, free to squabble among themselves about the commercial uses of the Murray–Darling river system, as they have often continued to do. The river trade was already declining in the 1890s and it has been insignificant for many years. However, after over a century of federation, [page 41] the state of the Australian river systems and the extent of their use for irrigation has become a matter of national concern. In this context, s 100 of the Constitution has not made any effective contribution to achieving an equitable allocation of Australia’s scarce water resources.

Financial clauses After debate, the position remained much as it was in the 1891 Convention but with one important variation. On the motion of the premier of Tasmania, Sir Edward Braddon, it was resolved by 21 votes to 18, with strong support from Victorian and Tasmanian members, that the Commonwealth should not retain more than one-quarter of the revenues it raised from customs and excise duties for its own purposes. The balance had to be paid to the states. The clause, which quickly became known as the Braddon clause, appears in a more limited form as s 87 of the Constitution. It seemed at the time that the smaller states had gained an assurance of financial viability. It was apparent though that free-trade New South Wales delegates remained vehemently opposed to the clause. Railways and the Inter-State Commission While rivers were declining in importance as integers of transport, state railways were not. In New South Wales and Victoria they were instruments of government policy allied to the tariff question. Quick and Garran explained the position as follows: Under the provincial system, each colony had reinforced its barrier of customs-houses by a war of railway rates and railway policies. This was especially the case between New South Wales and Victoria. Each colony had built its railway lines and arranged its rates with a view to concentrating as much trade as possible in its own Capital. New South Wales, having an immensely larger area than Victoria, had tried to gather into Sydney all the trade of that area and had built octopus railways into the south-western or “Riverina” district — taking care not to extend them quite to the Victorian border, lest some of the trade might flow the wrong way. A large area of [page 42] New South Wales, however, is geographically nearer to Melbourne than to Sydney; and Victoria ran numerous lines to the border in order to tap the trade of these outlying districts of New South Wales. Then began a system of frankly competitive rates; Victoria offering special reductions — in some cases amounting to 66 per cent — to goods coming from across the border, while New South Wales endeavored to retain the trade by prohibitive rates for produce travelling towards Melbourne, and by extremely tapering long-distance rates for produce travelling to Sydney. This “cut-throat” competition between the two railway systems was moreover complicated by the competition of both with river steamers trading to South Australia.11

In a wide-ranging debate on railways, delegates grappled in different ways

with the circumstances in which competition would be adjudged fair or unfair. As expected, New South Wales and Victorian delegates vociferously approached the question from entirely different angles and it became clear that there was no chance of resolving the conflict by giving the Commonwealth Parliament itself a power to deal with it. The Convention took the only way out by allotting a further role to the Inter-State Commission. It decided that the Commission should in the first instance decide whether any action by a state as to railways amounted to an unreasonable preference or discrimination. If it did so, the Commonwealth Parliament could ‘by any law with respect to trade and commerce’ forbid the state’s action. It may have seemed to members of the Convention that they were providing an essential constitutional mechanism which would cause states to discontinue past policies. This did not turn out to be the case, and the Commonwealth Parliament has not during the various lives of the ill-fated InterState Commission availed itself of this constitutional power.12 [page 43] Deadlocks The debate on deadlocks between the two Houses, which lasted two days, got away to a bad start as the committee became enmeshed in a set of different proposals and suggested amendments. The basic arguments remained as they had in Sydney.13 Isaac Isaacs renewed his plea for a popular referendum which required a double majority, but in so doing he lost the support of New South Wales members who favoured a single overall majority of electors. In an accomplished speech, Bernhard Wise of New South Wales said that the use of the referendum process was unsuited to the British parliamentary system and destructive of responsible government. His speech hit home and the Isaacs proposal lost by 30 votes to 15. When he opened the debate, Barton as Convention leader moved to strike out a proposal for consecutive dissolutions of the two Houses advocated previously by South Australia’s Josiah Symon in Sydney. A motion by Symon to

dispense with the double dissolution was also beaten and the debate seemed to reach an impasse. The Convention fought its way out of the dilemma as it became clearer that to have a dissolution of the Lower House in the first instance left the Senate, as one of the guilty parties, in an all too comfortable position. Ultimately, the Convention voted in favour of a simultaneous dissolution of both Houses with a joint sitting to follow after the elections if the deadlock continued. Industrial disputes Henry Higgins at last achieved his objective, and the Convention agreed to a clause providing for the prevention and settlement of industrial disputes extending beyond the limits of a single state by the processes of conciliation and arbitration. But the voting was close: 22 to 19. Most Victorians voted in favour and most New South Wales delegates, including Barton and Reid, [page 44] voted against. This new power was thought by the founders to be limited to major disputes crossing state borders, but became of much greater moment after Federation, and assumed an importance well beyond anything envisaged in 1897–98. Social services Welfare states did not exist in the colonial days but some colonies had pension schemes and it was thought in earlier Convention discussions that the subject was not one for national action, presumably on the footing that charity begins at home. At Melbourne, however, the power was added to the Commonwealth list, not out of any thought about a welfare state, but because the mobility of the colonial populations gave rise to administrative problems for the colonies that had pension schemes. Finally, at the conclusion of the third and final session of the Convention

Debates of 1897–98, and after three cheers for the Queen and for Australia, the Constitution Bill was ready to be submitted to a popular vote.

1. 2. 3. 4. 5. 6.

7. 8. 9. 10. 11. 12.

13.

Official Record of the Debates of the Australasian Federal Convention, Adelaide, 23 March 1897, p 17 (Edmund Barton). See note 1 above. At Barton’s request, Premier Reid from New South Wales assigned his secretary, young Robert Garran, to assist with the Drafting Committee. J Quick and R Garran, The Annotated Constitution of the Australian Commonwealth, Angus & Robertson, Sydney, 1901, pp 172–3. Quick and Garran, note 4 above. A quirk in the enabling legislation meant that the Adelaide Convention did not rise on 22 April, but was adjourned until 5 May, when Sir Richard Baker as acting President declared the absence of a quorum and adjourned the Adelaide session for the final time, to meet again in Sydney on 2 September. See Chapter 3. Quick and Garran, note 4 above, p 187. Official Record of the Debates of the Australasian Federal Convention, Sydney, 10 September 1897, p 355. Official Record of the Debates of the Australasian Federal Convention, Sydney, 14 September 1897, p 537. Quick and Garran, note 4 above, p 179. Section 51 of the Constitution vests the Commonwealth Parliament with three express powers relating to railways: first, the control of railways for defence purposes (para (xxxii)); second, acquisition of railways of a state with the consent of a state (para (xxxiii)); and third, railway construction in a state with the consent of a state (para (xxxiv)). The Commonwealth Parliament has used all three powers on different occasions. For a description of the deadlocks debate see J Richardson, ‘Resolving Deadlocks in the Australian Parliament’ in G Lindell and B Bennett (eds), Parliament: The Vision in Hindsight, Federation Press, Sydney, 2001, pp 291–303.

[page 45]

Chapter 5

Final Steps to Federation Referendum On 3 June 1898 the Draft Bill to Constitute the Commonwealth of Australia (‘Constitution Bill’) was submitted to popular vote in New South Wales, Victoria, South Australia and Tasmania,1 and a majority was obtained in each. However, in New South Wales the majority fell 8,405 votes short of the 80,000 affirmative votes required by its Federation Enabling Act Amendment Act of 1897.2 Premier George Reid had vacillated when addressing a crowded public meeting in March by saying that though he personally could not be a deserter to the federal cause he would not make any recommendation to the electors, for which he earned the derisive title ‘yes-no’ Reid.3

Premiers’ Conference at Melbourne: 29 January-2 February 1899 Defeat in New South Wales made federation impossible. Reid, however, took an affirmative step and requested a conference of all premiers to consider suggestions to make federation acceptable. All six premiers agreed and met in Melbourne behind closed doors. The meeting achieved unanimous, if reluctant, agreement on significant concessions to New South Wales. [page 46] Joint sittings (s 57) The first decision was that at a joint sitting of the two Houses following a

double dissolution, it should only be necessary to obtain an absolute majority of the total membership of the two Houses to approve a disputed measure. Braddon clause (s 87) The obligation upon the Commonwealth to remit at least three-quarters of its customs and excise revenue to the states was restricted to ‘a period of ten years after the establishment of the Commonwealth and thereafter until the Parliament otherwise provides’. In the event, the Commonwealth did otherwise provide in 1910, with the introduction of the Surplus Revenue Act 1910, which had the sole purpose and effect of terminating the operation of s 87. Grants to the states (s 96) Partly in recognition of the limitation placed on the Braddon clause, a new clause was added, also limited to 10 years certain and thereafter until the Parliament otherwise provided, which empowered the Commonwealth to make grants of financial assistance to the states on terms and conditions which the Commonwealth thought fit. To the present day, the Commonwealth has not provided otherwise. Federal capital (s 125) It was agreed that the federal capital should be within New South Wales but at least 100 miles from Sydney, and that, in the meantime, Parliament should meet at Melbourne. Having settled on these amendments, the premiers agreed to submit the results of their efforts to their Parliaments with a view to a further referendum. [page 47]

Second referendum: 1899 The colonies, now finally including Queensland, but not Western Australia,4

passed enabling Acts and submitted the revised draft bill to their electors, although not all on the same date. The results improved on all the earlier referendum majorities, and a strong affirmative vote was registered in each colony. A total of 377,988 electors out of 519,374 voted yes. The majorities in South Australia and Tasmania were overwhelming, and rather less so in Queensland and in New South Wales. In the latter case, the majority of 24,679 was a great relief to the other colonies. The numbers seem less impressive in light of the fact that the total population of Australia was 3.8 million, but this was partly because full universal franchise was still to come. In particular, only in South Australia were women permitted to vote at this referendum.

Delegation to England and enactment of the Constitution in 1900 The premiers selected a delegation of five to visit England — one from each colony. Edmund Barton was principal spokesman and well supported by Alfred Deakin and Charles Kingston — a trio fully primed by their roles in the Convention Debates.5 In England, the delegates encountered more criticism of the bill than they expected. Crown law officers, for example, objected to the extent of restrictions imposed on appeals to the Privy Council. They also objected to a provision in the covering clauses to the bill ousting the Colonial Laws Validity Act 1865 from applying to the Commonwealth. Though accepting [page 48] modification to the covering clauses, the Australian delegates remained adamant that otherwise the bill should stand intact. Discussions took a couple of months before the Constitution Bill was introduced into the House of Commons on 14 May with the support of Prime Minister Chamberlain. Ultimately, with only a minor variation to allow the Queen to grant leave to appeal from decisions of the High Court in appeals coming to it from state Supreme Courts, the Commonwealth of Australia Constitution Act was passed, and received Queen

Victoria’s assent on 9 July. The Constitution is contained in cl 9 of the Imperial Act which came into force on 1 January 1901. The Commonwealth of Australia came into being at that date.

The special case of Western Australia Covering cl 6 allowed Western Australia to become an original state if it did so before federation commenced on 1 January 1901. Taking advantage of this clause, the two Houses of the Western Australian Parliament passed an Enabling Bill for a referendum to be held on 13 July. The victory for federation was clear — a yes vote of 44,800 to 19,691 negatives, giving a majority of about 25,100 in favour of joining the federation (women were entitled to vote in this referendum). However, the goldfields electorates contributed 24,517 votes out of the 25,100 total majority. The population of the goldfields was largely composed of people who came from the other colonies. Country electorates solidly voted no, fearing that the removal of customs duties on produce coming from the other colonies would affect their livelihoods.6

The first Governor-General Queen Victoria appointed the former Governor of Victoria, the seventh Earl of Hopetoun, to be the first Governor-General of the Commonwealth. His first task was to choose a Prime Minister. To the complete astonishment [page 49] of all prominent federalists, Hopetoun sent for William Lyne, who had recently replaced Reid as premier of New South Wales after the Labour Party withdrew its support from Reid. Lyne had been an implacable opponent of federation during and after the Convention Debates.7 The Governor-General’s decision attracted widespread hostility. In the following turmoil, Barton, and the Victorians Deakin and Turner, refused to serve under Lyne, who then withdrew. In his stead, Hopetoun appointed Barton, which he should have done in the

first place.

The first ministry On 1 January 1901, after being summoned by Lord Hopetoun, Barton created his ministry according representation to each colony. Members included Deakin and Turner from Victoria, and Kingston from South Australia. In a moment of generosity, Barton included Lyne. The first task was to create a Commonwealth public administration and then to organise the first elections to the Federal Parliament. Then the Cabinet got to work. Transfers of departments from the states were arranged, one of the first being the Department of Customs and Excise. Four new Commonwealth Departments were created — Prime Minister’s, Treasury, Home Affairs and Attorney-General’s.8

The first elections The first elections to the two Houses were held on 29–30 March 1901. In accordance with s 10 of the Constitution, eligible voters were those who were qualified to vote in their own state elections. All ministers were returned, and Barton became the first elected Prime Minister. With that, after many years of tireless work by the founders, the Commonwealth of Australia was born.

1.

2. 3.

4.

5.

Western Australia decided to await the outcome of the referendum before committing itself to joining the federation as an original state. Queensland did not conduct a referendum, as it had not attended the 1897–98 Convention. Previously the affirmative vote had been fixed at 50,000. Quick and Garran are critical of Reid’s behaviour, and consider his attitude was a material factor in the unsuccessful result: J Quick and R Garran, The Annotated Constitution of the Australian Commonwealth, Angus & Robertson, Sydney, 1901, pp 208–11. In Western Australia, a select committee of the Legislative Assembly declared that several amendments to the Constitution Bill were needed, including one enabling the states to impose customs duties for five years after the adoption of a federal uniform tariff. Subsequently, controversies arose without any agreement and no enabling bill resulted. Queensland sent James Dickson. The Tasmanian representative was Sir Philip Fysh, who was then

6.

7.

8.

based in London. With the agreement of the United Kingdom Secretary of State, Western Australia was allowed to join the contingent. Its delegate, Stephen Parker, became an embarrassment in London by persisting with the idea that the Constitution should allow the right to impose customs duties for five years. The goldfields electorates had been unrepresented in the Western Australian Parliament and stood to be beneficiaries of federation. They had already professed a desire to sever themselves from the rest of the colony. According to Garran, Hopetoun could have been influenced by the fact that New South Wales was the premier colony. He added that Hopetoun ‘could not have made a worse or more unpopular choice. It would have been comic had it not been so serious’: R Garran, Prosper the Commonwealth, Angus & Robertson, Sydney, 1958, pp 139–40. The job of organising the elections fell to Robert Garran, who was appointed Secretary to the Attorney-General’s Department. Deakin was the Attorney-General. His Commonwealth Franchise Act 1902 (Cth) was a masterpiece.

[page 51]

Chapter 6

The First Decade of Federation The practical experience of government under the Constitution in the first decade after Federation provides important insights into the scheme of government embodied in the Constitution, and the views of the founders, many of whom became members of the federal institutions.

Birth of the two-party system Stable government did not characterise the first decade of federation. Between 1901 and 1910 there were no less than eight federal ministries. About half of the members of the first House of Representatives had been delegates to the 1897– 98 Convention and the first ministry consisted mainly of them. In the absence of any challenge, Edmund Barton, as the acknowledged leader of the Protectionists, became the first Prime Minister and the Parliament embarked on a legislative program much of which proved to be of enduring significance. In 1903, Barton resigned to become a judge of the newly constituted High Court,1 and his friend and ally, Alfred Deakin, became Prime Minister. At the second general election in December 1903, the Labour Party made impressive gains in both Houses.2 With Labour support Deakin was able to hold office but it was now clear that henceforth Labour would be a major player in the federal political stakes. The deal with Labour did not last long. Labour withdrew its support for Deakin when it failed in an attempt to widen the scope of the Conciliation

[page 52] and Arbitration Bill 1904. Deakin resigned and John Watson formed a minority Labour government but it lasted only four months before Free-trader George Reid was able to form a coalition with the support of the leader of the Protectionists, Allan McLean. Watson resigned when his Conciliation and Arbitration Bill, which sought to grant preference in employment to unionists, was defeated on the floor of the House. In the following year, Reid suffered the same fate as Watson, and Deakin became Prime Minister with Labour support for a second time.3 Deakin survived a general election at the end of 1906 and remained in office for about two years when Labour again withdrew its support. He resigned and Labour took office under Andrew Fisher but held office for only a few months. In April 1909, the Protectionists and Free-traders got together and forced Fisher’s resignation, whereupon Deakin became Prime Minister for a third time as head of the new so-called Fusion Party. Free-trader Joseph Cook was Deputy Prime Minister. By this time it was plain to all political circles that Labour, as a more tightly organised political entity, had become a formidable electoral force compared with the loosely organised Protectionists and Free-traders. Deakin, with his usual perspicacity, realised that much more organisational work had to be done if conservative forces were to win government in the future. He brought his considerable influence to bear and succeeded in uniting the antiLabor movement in 1919 under the name of the Commonwealth Liberal Party. From this time, the two-party system became the predominant characteristic of federal parliamentary government.

Early legislation Barton and his ministry faced a daunting task in deciding upon a legislative program not only to meet immediate needs but also to lay the foundations [page 53]

for the exercise of the Commonwealth Parliament’s major constitutional powers thereafter. The first Act of the Parliament was the Consolidated Revenue Act 1901 (Cth). The government had established a Consolidated Revenue Fund as required by s 81 of the Constitution, into which all revenues had to be paid, from there to be appropriated for the purposes of the Commonwealth. The Act appropriated £491,882 mainly for expenditure on running the departments transferred from the states. The principal source of Commonwealth funds consisted of customs and excise duties imposed by the states, pending the introduction by the Commonwealth of a common tariff policy. Several such Acts were to follow in the first two years of federation. The second Act passed in 1901 was an Acts Interpretation Act dealing with such matters as the meaning of words and judicial expressions appearing in Commonwealth Acts, and the commencement and repeal of Acts. Section 88 of the Constitution required uniform customs duties to be imposed within two years after the establishment of the Commonwealth on 1 January 1901. The complex task of creating and implementing a common tariff policy covering both customs and excise duties stretched the resources of the executive government. Separate Acts created a customs and excise administration under a Comptroller-General and sundry collectors of customs. In 1902, Parliament approved a customs tariff and an excise tariff to be incorporated and read with the Acts which set up the relevant administrations. Both sets of tariffs were expressed to be imposed (retrospectively) from 4 pm on 8 October 1901. The legislation reflected a compromise between Free-traders, Protectionists and the Labour Party; it was mainly a revenue tariff and only mildly protectionist. Estimated revenue was £7.5 million in the first year. In fact, it raised £9 million. Immigration Restriction Act 1901 This Act made entry to Australia conditional upon passing a dictation test of 50 words in a European language. A person failing the test became a prohibited immigrant. The Act was aimed at bringing Asian immigration

[page 54] to a halt. The justification for the legislation was that such a policy was considered an economic and social necessity, because Australia, like New Zealand, had a European population in an Eastern hemisphere where heavily populated countries had completely different social and economic conditions. Although the Act was designed to stop immigrants from Asia, the executive government was free to apply the test as it pleased, and did to Egon Kisch, a Czech national and anti-war and anti-fascism activist, after he entered Australia in 1934.4 Pacific Island Labourers Act 1901 From the 1860s, many thousands of South Sea Islander labourers had been brought to work on the sugar plantations in Queensland as low-paid (or indentured) labourers. In 1901, the government sought the Attorney-General’s opinion as to whether an excise duty imposed on the production of sugar ‘may differentiate between sugar grown by black labour and sugar grown by white labour’.5 The advice was that it could not do so, because it would amount to a discrimination against Queensland contrary to the taxation power in s 51(ii) of the Constitution, which prohibited the Commonwealth from discriminating between states or parts of states. Instead, the Commonwealth passed the Pacific Island Labourers Act 1901, which excluded South Sea Islander labourers by more direct means. The Act provided for the vast majority of the labourers to be deported, and required any South Sea Islander entering Australia after 1904 to have a licence. [page 55] Service and Execution of Process Act 1901 This Act provided for recognition throughout the Commonwealth of the statutes, public acts and records (such as proclamations and commissions), and judicial proceedings of the states.

Commonwealth Public Service Act 1902 The transfer of state public servants, and the need to employ a growing number of Commonwealth employees, necessitated this Act. It created in the first instance seven departments each with a Permanent Head — External Affairs, Attorney-General’s, Home Affairs, Treasury, Trade and Customs, Defence and Postmaster-General’s. Commonwealth Franchise Act 1902 Sections 8 and 10 of the Constitution empowered the Parliament to specify the qualifications of electors of senators and members of the House of Representatives. The sections did not require a democratic franchise but this was probably assumed and could be implied from various provisions in Ch I of the Constitution (as it has been subsequently: see Chapter 32). At Federation, each state had adopted manhood suffrage (albeit sometimes with property qualifications), but women were eligible to vote only in South Australia and Western Australia. The Franchise Act created a wider form of suffrage than existed in the states. Any person aged over 21 years, male or female, who had lived in Australia continuously for at least six months and was a natural born or naturalised subject of the King and whose name was on the electoral roll of any electoral division was entitled to vote for senators and members of the House of Representatives. However, Aboriginal and Torres Strait Islander peoples and other non-white groups were specifically denied the vote by s 4, which the marginal note described as a ‘Disqualification of coloured races’. [page 56] Conciliation and Arbitration Act 1904 When the Constitution was being framed, Henry Higgins had fought hard for the Commonwealth to be given a conciliation and arbitration power. He was

able to gain Deakin’s agreement to introduce a Conciliation and Arbitration Bill in 1904 as Deakin’s Labour supporters wished. Ironically, the bill led to Deakin’s resignation because of his unwillingness to apply the Act to state railway employees. As Attorney-General in the following Watson minority Labour ministry,6 Higgins pursued his ambition, but Watson’s ministry was short-lived, it too being brought down by the Conciliation and Arbitration Bill, which sought preference for unionists in the application of the Act. The bill was passed in the Reid-McLean coalition ministry which took office following Watson’s defeat. The Act set up a Commonwealth Court of Conciliation and Arbitration and Higgins became president of it in 1907. In the same year he delivered a groundbreaking judgment in the Harvester case.7 It introduced the concept of a ‘minimum wage’ which would become a cornerstone of federal industrial policy over many years. In December 1904, before the Act became law, the Governor-General, Baron Northcote, noted that, owing to its definition of ‘industrial dispute,’ the Act applied to employment by state railways. He questioned whether the AttorneyGeneral, despite believing that the bill contained an ultra vires provision, should advise him that his assent to it was proper. Josiah Symon, the Attorney-General, had expressed the view in debate that the Act’s extension to state railways would be held to be ineffective. Symon advised the Governor-General that he should nonetheless assent to the Act, because the question of validity was a matter for the High Court alone. That opinion avoided the wider question of the circumstances [page 57] in which the Governor-General could refuse to accept the advice of his ministers.8 Australian Industries Preservation Act 1906 This Act was the earliest attempt to control restraints of trade and monopolisation in Australian trade and commerce. Its provisions were borrowed

from the Sherman Act 1890 of the United States, which remains a core antitrust law in that country. The Australian Act sought to extend its application to ‘foreign corporations, and trading or financial corporations formed within the limits of the Commonwealth’ — the power given to the Commonwealth by s 51(xx) of the Constitution. Its validity was successfully challenged in the High Court in 1909 on the footing that the power to regulate intrastate trade had been reserved to the states.9 Other Acts In 1901, the Post and Telegraph Act put to one side all pre-existing colonial legislation on the subject and established the Commonwealth postal and telegraphic service to be run by the Postmaster-General’s Department. Section 16, which remained in the Act until 1961, required all mail contracts to contain a condition that ‘only white labour shall be employed’ in the carriage of mail. Another Act passed in 1903 was the Sugar Bounty Act. The Act provided for payment of a bounty to Australian sugar growers who only employed white labour. The Act (in concert with the Pacific Island Labourers Act 1901: see above) spelt the end for South Sea Island labourers widely employed in the cane fields. The first Defence Act was also passed in 1903. It was an early necessity since s 114 of the Constitution prohibits the states from raising military [page 58] forces without the consent of the Commonwealth Parliament. The Act rendered inapplicable all state legislation creating military forces and established the Naval and Military Forces of the Commonwealth, which were divided into Reserved Forces and Military Forces.

High Court of Australia In 1903 the High Court came into being with the passing of the Judiciary Act.

Its three members, Griffith CJ, Barton and O’Connor JJ, had all been prominent participants in the Convention Debates. One of the first cases before the court gave rise to a constitutional question: whether a state Act could require a federal officer in giving a receipt for his salary as required by Commonwealth law to attach a state duty stamp to the receipt.10 The court held that it could not. The court relied on an implied doctrine, adopted by the Supreme Court of the United States, known as the immunity of instrumentalities, under which the powers of both the states and the Commonwealth were interpreted as not binding upon each other or their instrumentalities. Subsequently, the court applied another implied doctrine known as the doctrine of implied prohibition (or ‘reserved state powers’ doctrine). A Commonwealth law imposed excise duties on the production of agricultural machinery but granted complete exemptions if the manufacturer could establish that it paid fair and reasonable remuneration to employees. In Barger’s case, the court held that the law was not a valid exercise of Commonwealth power because it purported to deal with conditions of labour, a matter reserved to the states (see Chapter 14).11 The court continued to apply the implied doctrines in subsequent cases over several years until 1920 when the court, by then composed of different judges, handed down the Engineers’ case, overturning both the implied [page 59] doctrines in their imported form.12 While there was no requirement for the first High Court to rely on American precedent, the rationale behind the decisions can perhaps be explained by the fact that each of the first High Court judges had been active participants in the Convention Debates, a constant theme of which was that the Commonwealth should not be given any more powers than were necessary in the national interest, and which had considered the US as the preeminent model of an effective federal system. Later judges sitting on the High Court, such as the judges who overturned both the implied doctrines in the Engineers’ case, undoubtedly interpreted the

Constitution from a different vantage point. The growth of Commonwealth legislative competence through the court’s wide interpretation of the Parliament’s enumerated powers that has been followed subsequently has been one of the defining features of the operation of the Constitution in practice.

Constitutional change The first alteration of the Constitution occurred within the initial years. In 1906 the Commonwealth Parliament passed a proposed law under s 128 to make minor amendments to s 13 of the Constitution dealing with the election of senators. The main purpose was to alter the date on which the term of a senator should begin from January to July. This enabled elections for the Senate to be held, at least for the time being, at the same time as the ordinary triennial elections for the House of Representatives. The success rate of referendums for constitutional change has generally been dismal, but on this occasion the amendment was successfully carried by a strong majority of electors in every state as well as an overall majority, as required by s 128. [page 60]

The Braddon clause At the Premiers’ Conference in Tasmania in 1905, the state premiers wished to ascertain the Commonwealth’s plans for the exercise of its various legislative powers. The premiers expressed concern about rising defence expenditures. Section 87 of the Constitution, known as the Braddon clause, required the Commonwealth to pay three-quarters of its revenue from customs duty to the states for the first 10 years of federation but thereafter only until Parliament otherwise provided. All premiers, including Joseph Carruthers, the premier of New South Wales, who had supported the 10-year time limit during the Convention Debates, pressed the Commonwealth to extend it for a further 20 years certain. Unsurprisingly, the proposal failed to gain any support from the Prime Minister, George Reid.

At the conference the Commonwealth declared its intention, among other measures, to introduce age pensions and indicated its desire to construct a transcontinental railway.13 With its early legislation, the Commonwealth gave life to federal institutions and started to explore the reach of its legislative powers. Its priorities reflected the major themes that emerged during the struggle for federation. Even in the first decade of its existence, the potential for the Parliament to legislate in a wide range of areas had become obvious.

1. 2. 3. 4.

5. 6. 7. 8.

9. 10. 11. 12. 13.

The other judges were Griffith CJ and O’ Connor J. The party did not change its spelling to ‘Labor’ until 1912. Following his defeat Reid sought a dissolution of the House of Representatives but the GovernorGeneral, Baron Northcote, refused to act. Kisch was required to write out a passage of 70 words in the Scottish Gaelic language after it was first read to him by a police constable. He refused and was charged, convicted and sentenced to imprisonment for being a prohibited immigrant found within the Commonwealth. Fortunately for him, the High Court held that Gaelic was not a European language: R v Wilson; Ex parte Kisch (1934) 52 CLR 234; [1935] ALR 130. P Brazil and B Mitchell, Opinions of Attorneys-General of the Commonwealth of Australia, Volume 1 1901–1914, Australian Government Publishing Service, Canberra, 1981, pp 11–14. Although he was in the Cabinet, Higgins was not a member of the Labour Party, but they did share common ground. Ex parte H V McKay (1907) 2 Commonwealth Arbitration Reports 1. Brazil and Mitchell, note 5 above, pp 239–40. The application of the Act to state railway employees was later found invalid by the High Court in Federated Amalgamated Government Railway and Tram Service Association v New South Wales Railway Traffic Employees Association (1906) 4 CLR 488; 13 ALR 273 (Railway Servants’ case). Huddart, Parker & Co Pty Ltd v Moorehead (1909) 8 CLR 330; 15 ALR 241. D’Emden v Pedder (1904) 1 CLR 91; 10 ALR (CN) 30. R v Barger (1908) 6 CLR 41; 14 ALR 374. Amalgamated Society of Engineers v Adelaide Steamship Co Ltd (1920) 28 CLR 129; 26 ALR 337 (Engineers’ case). The Premiers’ Conference 1905: Report of Proceedings, Centre for Research on Federal Financial Relations, Australian National University Press, Canberra, 1982, pp xv, 7, 152–68.

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Chapter 7

Reflecting on the Work of the Founders The Constitution has now lasted more than a century, which places it amongst the oldest constitutions in the world. The founders are therefore to be commended for the success of their efforts. An assessment of some of the key aspects of the founders’ work follows.

Concept of federalism The determination of the colonies to retain their legislative powers as much as possible meant that the federation was perceived as being a coordinate exercise, with the six states continuing to exercise much of the governmental power. Most Commonwealth legislative powers are not exclusive to the Commonwealth, but are also retained by the states in the exercise of their general law-making powers specifically preserved in ss 106 and 107 of the Constitution. Since both the Commonwealth and the states could thus pass laws on the same subject, s 109 provided that a valid law of the Commonwealth should prevail over an inconsistent state law. The power given to the Senate to reject any bill passed by the House of Representatives was intended to cement the position of the states. A dilemma that had challenged the principal architects of the federal system was how to reconcile responsible government, which was a cornerstone premise for proceedings in the House of Representatives, with the centrifugal interests of the states. The dilemma was never really resolved. Instead, the founders took refuge by including s 57, which provides an elaborate double dissolution procedure for dealing with disagreements occurring between the two Houses.

[page 62]

Representative and responsible government The change from the position in 1891, when it was envisaged that state Parliaments would choose senators, to senators being elected by the same voters as the House of Representatives, was a big boost for representative government — especially as adult suffrage was within contemplation of the members of the Convention which drafted the Constitution. Section 57, by placing the resolution of deadlocks between the two Houses in the hands of the federal electorate, was also in accordance with the most fundamental meaning of democracy. The founders had emphasised the responsibility of the Federal Government to the electorate. Responsible government was also reflected in the requirement that the Governor-General, in the exercise of the executive power of the Commonwealth, rely on the advice of ministers who had to be members of Parliament.1

Cooperative federalism Several sections of the Constitution provide for cooperation between the Commonwealth and the states, for example, the surrender by a state of territory to the Commonwealth under s 122. There are also various examples in s 51, which contains most of the legislative powers of the Parliament, for example, para (xxxvii) under which state Parliaments may refer a legislative power to the Commonwealth Parliament. Other sections impose obligations on one or other of the parties to the federal compact. For example, each state must provide for the detention of Commonwealth prisoners convicted of offences against Commonwealth laws (s 120). The Commonwealth must not by any law of trade or commerce abridge the right of a state or its residents to the reasonable use of rivers for conservation or irrigation (s 100). The founders did not give any thought to the possibility of establishing some constitutional form of joint consultative machinery to review federalism in operation.

[page 63]

Bicameral Parliament: Ch I of the Constitution The establishment of the bicameral system and the provisions relating to the composition of the two Houses left much to the imagination. In true British tradition, the constitutional framework was left to operate according to the procedures and understandings acceptable to the members of the legislature for the time being, as the Commonwealth established itself and became a growing force compared with the states. This was probably wise since there was no certainty as to how far either House would perform its constitutional role. In practice, the House of Representatives has performed fairly much as expected, but the Senate has not. The Senate’s discharge of its dual role as a House of review and a House of the states has been in the hands of senators who, with occasional exceptions, owe their places and loyalties to the political parties to which they belong, and not to their states. As envisaged by the founders, there was a dualism in representative and responsible government. From the viewpoint of the Commonwealth Government, responsibility lay ultimately to the federal electors (through the House of Representatives) and not to the states. From the state viewpoint, the Senate’s responsibility was to the states as states’ House, even though senators were elected by the same voters as voted for the House of Representatives. The resolution of this dilemma was ultimately to be found in s 57 of the Constitution, dealing with deadlocks between the Houses.

The executive government: Ch II of the Constitution Parliament sits occasionally, but executive government is continuous. Members of the Convention were well aware of the Westminster system of government upon which their own constitutions were based. They did not look beyond it. But executive government in Britain rested as much on conventional behaviour as on rules of law and its translation into a written federal constitution during the Convention Debates became a task for the drafting committee, rather than the convention proceedings.

[page 64] All Australian polities have a Cabinet system of executive government in which a Prime Minister or premier has a Cabinet of ministers who are also members of Parliament — but one would look in vain for any mention of this arrangement in the Constitution. Recognising the Queen as the head of state, although not formally calling her such, the founders created a Federal Executive Council of ministers of state to advise the Governor-General, as the Queen’s representative, in the exercise of the formal powers of government (ss 61 and 62). Responsible government was recognised by providing that the ministers had to be members of Parliament (s 64). Apart from these provisions, the Cabinet system of government rests almost entirely on conventions, for example, the appointment of the Prime Minister and other ministers from the party or parties possessing a voting majority in the House of Representatives.2 The Prime Minister is simply the leader of the party or parties able to command a majority in the House of Representatives. The Prime Minister, and indeed the entire ministry, is liable to removal at any time if they lose the confidence of the House. This form of change of government was more common in the early years of the Commonwealth, but is extremely rare now. The Prime Minister is also liable to removal at any time if defeated for the leadership of his or her own party. This form of change of executive leadership has become increasingly common, as illustrated by the Rudd–Gillard–Rudd Labor governments of 2007–13, and the Abbott–Turnbull Coalition governments of 2013–16. The Prime Minister and his or her ministers meet separately as a Cabinet or ministry to manage the government of the country. The Governor-General and the Federal Executive Council have no role except when a formal decision is required. In such cases, usually only two members of the Executive Council attend to advise the Governor-General of the decisions which have already been reached by the Cabinet. [page 65]

The absence of any reference to the Prime Minister or Cabinet would no doubt puzzle the average citizen should he or she chance to consult the Constitution, but reflects that government in Australia operates under unwritten conventions in addition to rules expressed in the Constitution itself.

The judicature: Ch III of the Constitution Chapter III established a federal judicial system, naming the High Court of Australia as the highest Court in the land with a monopoly power to make final and binding decisions interpreting the Constitution (although with the possibility of the court itself granting a certificate to permit an appeal to the Privy Council). While the distinction between the Parliament as a legislative body in Ch I and the executive government in Ch II was modified from the outset because ministers in charge of departments had to be members of Parliament (thus creating a political form of executive government), Ch III stands in splendid isolation from the other two. The High Court has ensured not only that it and other federal courts are the sole repositories of the judicial power of the Commonwealth,3 but that non-judicial powers cannot be conferred on the court except those which are incidental to the judicial power.4 Over the years, this position has created difficult situations in authorising administrative tribunals to make binding decisions in major areas of parliamentary and executive responsibility,5 with the result that tribunals are only used where the Commonwealth is a party (and can, therefore, be expected to abide by the decision reached). The founders always intended that judicial review of legislation passed and executive action taken under the Constitution should be vested in [page 66] the High Court,6 probably in the expectation that it might ensure the protection of the states against excesses of Commonwealth legislative and executive power. Under s 75, the High Court has original jurisdiction in a range of matters in which constitutional questions could arise, for example, in suits in which the

Commonwealth is a party or in proceedings against a Commonwealth officer. Oddly, however, s 76 required an Act of Parliament to vest the court with an express power to exercise jurisdiction in matters arising under the Constitution or involving its interpretation. In S157/2002 v Commonwealth,7 the High Court held that s 75(v) of the Constitution provides a guarantee of judicial review of executive action, which cannot be taken away by the Parliament.

Distribution of legislative powers In surrendering legislative powers to the Commonwealth, it was not thought that the Commonwealth would require expenditures of the order that the states themselves incurred. As Professor Zines has observed: In fact nearly all subjects which Australians in the nineteenth century associated with government regulation and administration were not included in the Commonwealth’s list. These were Crown lands, education, health, railways and roads, local government, police, mining, factory laws, and occupational licensing and certification. The criminal law and the civil law in areas such as contract, tort, equity, property, and succession were not subjects of Commonwealth power. In the area of economic control and regulation, the Commonwealth was given no express specific power over manufacture, agriculture, intra-State trade and commerce or labour relations (except in respect of conciliation and arbitration of inter-state disputes).8

[page 67] Except for the surrender of the power to impose customs and excise duties, the states were left free to impose any form of taxation they wished, including income taxation. Still, the founders thought this would be insufficient and hence included s 96 in the Constitution whereby the Commonwealth, which they expected would have more money than it needed, could make federally sourced funds available to the states. The founders did not anticipate that the Commonwealth would come to have absolute financial dominance over the states.

The Braddon clause which became the Braddon blot The Convention ended in 1898 with the Braddon clause intact. As discussed in

Chapter 5, the clause promised to preserve the majority of the customs and excise revenues for the states. Its retention was a relief to the smaller colonies, even though it left them dependent upon Commonwealth policy as to how much revenue should be raised from customs and excise duties. In the following year, to accommodate New South Wales, the premiers put the prospects of state financial independence at risk in one fell swoop by limiting the clause to a period of 10 years and thereafter until the Commonwealth should otherwise provide, as it did shortly after the 10 years expired. So it would seem that New South Wales exacted a heavy price for joining the federation. One consequence was that over time all states increased income tax from its marginal beginnings to become a major source of revenue, until 1942 when the Commonwealth launched its uniform tax system. In the long run, it is probable that an effective guarantee of state financial independence could not have been framed without imposing cumbersome restrictions on the Commonwealth’s ability to handle its own financial affairs. It was paramount in 1900 that separate colonial policies ended.

Commonwealth surplus revenue In the expectation that the Commonwealth would raise more revenue than it needed from customs and excise duties and other forms of taxation, [page 68] s 94 provided for the payment of surplus revenue to the states on a monthly basis after five years from the imposition of uniform customs duties. The founders’ expectations were never realised because the Federal Parliament, within a few years, created trust accounts to meet future commitments, which ensured that there would be no surplus revenue.9

External affairs External affairs in the minds of the colonial politicians usually encompassed

New Guinea and the islands in the Pacific Ocean and not much more. In effect, Britain ensured that this would be so through its management of relations with other countries. Section 51(xxx) is a specific power to make laws with respect to the relations of the Commonwealth with the islands of the Pacific, but more significantly para (xxix) allotted power over ‘external affairs’ to the Commonwealth. The external affairs power has permitted the Commonwealth, having entered into wide-ranging international conventions, to implement them by legislating in areas of state legislative power otherwise beyond Commonwealth reach. By way of example, the Commonwealth was able to prevent Tasmania from building the Gordon below Franklin dam on the footing that it was situated in a wilderness area which the Commonwealth wished to protect pursuant to the UNESCO Convention Concerning the Protection of the World Cultural and Natural Heritage, to which it is a party.10

Corporations The Commonwealth Parliament was given power under s 51(xx) to make laws with respect to foreign corporations and trading or financial corporations formed within the limits of the Commonwealth. The power was included without any demonstrable consensus as to what it was meant [page 69] to do, but in the context that the intrastate trade and commerce carried on by corporations or anyone else was not a subject to be surrendered to the Commonwealth. Today, public and private companies overwhelmingly dominate the business scene in every state, and therefore s 51(xx) confers on the Commonwealth a far broader regulatory scope than that envisaged by the founders. In 1909, the High Court held in effect that the federal power did not extend to the regulation of trade or commerce in any form.11 For many years thereafter

the corporations power was dormant. Beginning in 1971, judges of the High Court swept aside all previous timorous assessments of the power and held that the Parliament could pass a restrictive trade practices law applicable to the corporations specified, without regard to whether or not they were engaged in intrastate trading or financial activities.12 A decision in that year opened the way for the Commonwealth to bring corporations within the umbrella of Commonwealth law on a wide range of subjects which had been traditionally the preserves of the states. The significance of the corporations power was highlighted when the High Court upheld Commonwealth legislation passed in 2005 to bring industrial relations under a uniform Commonwealth regime.13 In a way the founders had not envisaged, the court recognised the corporations power as a basis for the Commonwealth to legislate for the internal affairs of corporate employers trading within states.

Inoperative sections The Constitution has 128 sections. Obviously, various interim arrangements were needed in setting up the Commonwealth, for example, to provide for elections for the first Parliament. On the executive side, state departments had to be transferred to the Commonwealth and new departments created to match the Parliament’s legislative powers. It was also necessary to provide [page 70] the Commonwealth with funds to meet the costs of setting up the new institutions of government and provide for their running costs until the Commonwealth could stand on its own feet. Such matters were handled by an assortment of clauses. Some clauses were of a bookkeeping nature; for example, ss 84 and 85 provided for the transfer of state departments including departments of customs and excise to the Commonwealth and, pending the imposition of customs and excise duties by the Commonwealth, continued to impose the relevant state tariffs. Section 89 provided for the return of the revenues, but only after

deducting the expenditure which the Commonwealth incurred, including the cost of maintaining the transferred departments. The payments to the states were to be made monthly. Three other sections soon ceased to have any operative effect: s 26, which specified the number of members to be elected in each state for the House of Representatives in the first Parliament; s 69, which specified the state departments to be transferred; and s 95, which contained an interim provision for Western Australia to continue levying customs duties. Sixteen sections not intended to have a permanent operation and covering a wide range of subjects were introduced by the formula ‘until the Parliament otherwise provides’.14 In all but one instance, Parliament has now otherwise provided, mostly in the early days of federation. The exception is s 96. As explained in Chapter 5, this section was an invention of the premiers’ conference in 1899, after limiting the Braddon clause to a certain operation of 10 years. It enabled the Commonwealth Parliament to make grants of financial assistance to the states and was intended to offer them temporary support, but the section has become a permanent feature of the federal system. In all, 22 sections have become extinct and cannot be revived. It would undoubtedly make for clearer reading if the sections were to be omitted, [page 71] but this would require a constitutional amendment. It may of course be validly argued that they should remain for their historical interest. There is little point in asking whether the life of the Constitution has matched the hopes of the founders in any minute detail. After all, as the founders themselves knew, they were drafting an instrument that would serve a nation through changing times, and which would have to grow and change with the nation. In some instances, some of the founders would be shocked at what has resulted from their work; in other instances, some of them would say that exactly what was envisaged has resulted. But as a master plan for the governance

of a federal nation over generations, there is little doubt that the founders achieved many of their broad aims: the Constitution, and the nation, have, on the whole, been great successes.

1. 2. 3.

4.

5. 6.

7. 8. 9. 10. 11. 12. 13. 14.

Constitution s 64. The only reference to political parties or politics is in s 15 providing for appointments to casual vacancies in the Senate. This provision was introduced as a result of a successful referendum in 1977. New South Wales v Commonwealth (1915) 20 CLR 54; 21 ALR 128 (Wheat case); Waterside Workers’ Federation of Australia v J W Alexander Ltd (1918) 25 CLR 434; 24 ALR 341; R v Kirby; Ex parte Boilermakers’ Society of Australia (1956) 94 CLR 254 at 270; [1956] ALR 163 at 166–7. R v Kirby; Ex parte Boilermakers’ Society of Australia (1956) 94 CLR 254 at 271, 277–8; [1956] ALR 163 at 167–8, 172; affirmed by the Privy Council in Attorney-General (Cth) v R [1957] AC 288; (1957) 95 CLR 529; [1957] ALR 489. Brandy v Human Rights and Equal Opportunity Commission (1995) 183 CLR 245; 127 ALR 1. M Stubbs, ‘A Brief History of the Judicial Review of Legislation under the Australian Constitution’ (2012) 40 Federal Law Review 227; Attorney-General (NSW) v Quin (1990) 170 CLR 1 at 35–6; 93 ALR 1 at 24–5 per Brennan J. (2003) 211 CLR 476; 195 ALR 24; [2003] HCA 2. L Zines, ‘Changing Attitudes to Federalism and its Purpose’ in R French, G Lindell and C Saunders (eds), Reflections on the Australian Constitution, Federation Press, Sydney, 2003, p 88. The Commonwealth’s action was upheld in New South Wales v Commonwealth (1908) 7 CLR 179; 14 ALR 625 (Surplus Revenue case). Commonwealth v Tasmania (1983) 158 CLR 1; 46 ALR 625 (Tasmanian Dam case). Huddart, Parker & Co Pty Ltd v Moorehead (1909) 8 CLR 330; 15 ALR 241. Strickland v Rocla Concrete Pipes Ltd (1971) 124 CLR 468; [1972] ALR 3 (Concrete Pipes case). New South Wales v Commonwealth (2006) 229 CLR 1; 231 ALR 1 (Work Choices case). Parliament could make other provision by reason of s 51(xxxvi). The sections were 10, 22, 29, 30, 31, 34, 39, 46, 47, 48, 65, 67, 87, 93, 96 and 97.

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Part Two The Commonwealth Parliament

[page 75]

Chapter 8

Federal Parliament Composition of the two Houses Section 24 of the Constitution enshrines the popular understanding of democracy by requiring that the House of Representatives be composed of members directly chosen in each state by federal electors in proportion to the population of the state.1 The founders expected governments to form from within the House of Representatives, as they did in the representative Houses of each colonial Parliament. After a general election, successive governors-general have invariably appointed the leader of the party or parties in the House of Representatives capable of forming a government to be Prime Minister. In practice, most ministers are also members of the Lower House. This acts as one of the ways in which government is responsible to the electors. By contrast, the Senate, as the centrifugal component under the federal compact, is composed of an equal number of senators for each original state, which falls well short of the democratic ideal of all votes being of equal value. Most founders regarded this as an essential condition if the colonies were to federate but, at the same time, they minimised the blow to egalitarianism by providing that the senators and members of the House of Representatives were to be elected by the same voters. [page 76]

Number of members and senators

In the 1891 draft constitution there was to be one representative for every 30,000 people in each state, until Parliament otherwise provided, a formula borrowed from the United States Constitution. It was dropped in later Convention proceedings without much argument. The relative sizes of the two Houses was a different matter. All founders knew that, over time, there was bound to be an increase in the number of the representatives. The concern, emanating mainly from the smaller colonies, was that since the number of senators is fixed, the disparity in numbers would weaken the standing of the Senate to the point at which it would become ineffective.2 In the end, the founders decided that Parliament could increase or diminish the number of members of both Houses, but that the number of members of the House of Representatives should be, as near as practicable, twice the number of senators — the so-called two to one ratio (s 24 of the Constitution). This means that any significant increase in the number of representatives of an everincreasing Australian population must be accompanied by an increase in the number of senators.3 The two to one tie has produced a quaint consequence. Tasmania has only the constitutional minimum of five members of the House of Representatives but it has 12 senators, in contrast to New South Wales, whose 12 senators are heavily outnumbered by 48 members of the Lower House. Lesser distortions occur in South Australia and Western Australia. It cannot be doubted that in party room discussions and at times on the floor of the Senate, the effect is to give a less populous state a greater voice than it would otherwise have. [page 77]

Qualifying to be an elector or member of the Parliament Under s 8, the qualifications for electors for both Houses have to be the same but it is left to Parliament to prescribe what they should be. Similarly, the

qualifications to be a senator or member of the House of Representatives must be the same,4 but it is again left to Parliament to specify them. Parliament’s current specifications are contained in the Commonwealth Electoral Act 1918 (Cth), an imposing enactment of more than 500 pages which deals comprehensively with the federal electoral system. Its provisions include the prescription of the methods of choosing senators and representatives.5 Electors Section 31 of the Constitution provided that, pending the passing of an Electoral Act, the electors qualified to vote for the popular legislature in each state were eligible electors for the Commonwealth Parliament. Although universal white adult suffrage was plainly envisaged, it is the Commonwealth Electoral Act 1918 (Cth) (as amended), and not the Constitution, which now creates universal suffrage (without any race qualification, since Aboriginal people were granted the vote at federal elections in 1962) for Australian citizens who are 18 years old or more.6 The Act also contains a set of disqualifications. For example, a person who through mental illness is incapable of understanding the significance of voting, or who is serving a sentence of three or more years imprisonment for an offence under Commonwealth or state law, is disqualified.7 [page 78] Senators and members of the House of Representatives Section 163 of the Commonwealth Electoral Act 1918 (Cth) states that a person who has reached 18 years of age, is an Australian citizen, and is qualified or entitled to vote in House of Representatives elections, qualifies for election to either House of Parliament. In other words, eligible voters are qualified to represent their fellow voters in Parliament. Disqualification of senators and members

Eligibility to sit in Parliament is subject to further disqualifications listed in s 44 of the Constitution. In summary, a person is incapable of being chosen and of sitting as a member of either House if he or she: •

owes allegiance to a foreign power or is a citizen of it; or

•

is convicted and under sentence for an offence under Commonwealth or state law punishable by imprisonment for at least one year; or

•

is an undischarged bankrupt; or

•

holds an office of profit under the Crown; or

•

has a direct or indirect pecuniary interest in an agreement with the Commonwealth public service except as a member of a company of more than 25 members. Until Parliament otherwise provided, which it did not do until 1975, s 46 of the Constitution rendered a disqualified person liable to pay £100 for every day he or she sat while disqualified, to any person who sued for it in a court.8 [page 79] Having an interest in an agreement with the public service of the Commonwealth — s 44(v) Until 1975, no case had arisen under s 44. In that year James Webster, a Country Party senator for Victoria for several years, was alleged, in a Melbourne newspaper, to be in breach of the fifth prohibition. Webster was a shareholder in a family company consisting of himself and eight others. At the time of his election in 1974 he was also managing director, secretary and manager of the company, which traded as a timber merchant. The company had contracted with the federal Department of Housing and Construction on printed forms supplied by the department. It specified the prices at which the company was prepared to supply timber during the currency of the contract as it received orders from time to time from the department. Pursuant to a reference to the High Court by the Senate, Barwick CJ, sitting as the Court of Disputed Returns,9 approached the issue by stating that it was not the purpose of s 44(v)

to prevent members from taking advantage of their position as members to put pressure on the Crown in the award of contracts. Instead its aim was to secure the freedom and independence of Parliament from the influence of the Crown (or in other words the executive government) by members of Parliament receiving profitable contracts from the Crown. He went on to say that as a matter of construction the provision applied only to executory contracts, that is, contracts under which something remained to be done by the contractor at a given time. In Webster’s case,10 there was no continuing agreement. The agreement created a standing offer by the company to fulfill orders if and when received from the department and the department was under no [page 80] obligation to place an order at all. Hence, Webster was not in breach of the Constitution.11 Holding an office of profit under the Crown — s 44(iv) In 1992, Phil Cleary was elected as an independent to the House of Representatives. Cleary was a school teacher employed by the Victorian Education Department, on leave on polling day as he had been since 1990. A week before the declaration of the poll, he resigned from the state teaching service in anticipation of easily winning the election which he did. In Sykes v Cleary,12 the High Court held that Cleary’s position in the teaching service was an office of profit under the Crown, albeit the state Crown, and he was therefore incapable of being chosen or sitting when he nominated for the seat.13 Owes allegiance to or is a citizen of a foreign power — s 44(i) Liberal Party candidate John Delacretaz and Labor candidate Bill Kardamitsis were also respondents in the Cleary case. Both were held to be disqualified under s 44(i). Delacretaz was born in Switzerland and Kardamitsis was born in Greece. Both had become naturalised as Australian citizens under the Nationality and Citizenship Act 1948 (Cth) and in so doing they renounced all allegiance to

their countries of origin. They also [page 81] held Australian passports. The court held, however, that neither had taken every possible step to divest himself of foreign citizenship, which continued under the law of their homelands.14 In 1999, the High Court, again sitting as the Court of Disputed Returns, held in Sue v Hill that Heather Hill, who had been elected as a senator for Queensland was, at the date of her nomination, incapable of becoming a senator because she was a citizen of the United Kingdom, which was now to be regarded as a foreign power for the purpose of s 44(i).15 Some monarchists were amazed at the decision, given that Queen Elizabeth II is also Queen of Australia. It serves, however, to illustrate the independence of Her Majesty’s roles as Queen of Australia and Queen of the United Kingdom. It also acknowledges the reality of complete Australian legal independence from the United Kingdom.

Whither s 44? Many federal parliamentarians are of the view that s 44 is now out of touch with prevailing economic and social conditions. A House of Representatives committee report in 1998 recommended that s 44 be removed in favour of a constitutional clause allowing Parliament to deal with disqualification of members (as it does with respect to electors).16 The Constitutional Commission, which also reported in 1988, made alternative recommendations for reform.17 However, no further steps have been taken to change the Constitution in this way. [page 82]

Qualifications of territory electors and candidates for

the Senate and House of Representatives According to s 122 of the Constitution, the Commonwealth Parliament’s plenary power to govern its federal territories extends to providing representation of a territory in either House to the extent and on the terms it thinks fit. The power has been exercised to give the Australian Capital Territory and the Northern Territory two senators each, notwithstanding that s 7 states that the ‘Senate shall be composed of Senators for each State directly chosen by the people of the States’. The Territory senators have the same rights as senators for a state. The Senate (Representation of Territories) Act 1973 (Cth),18 granting the representation, was challenged in the First Territory Senators’ case.19 The High Court upheld the law by a bare majority of four to three. Following a change in the composition of the court, a further challenge was launched in the Second Territory Senators’ case.20 The challenge failed in a five to two decision. The Australian Capital Territory and the Northern Territory also have two members each in the House of Representatives and they have the same rights as other members. The two Acts providing for their membership were also challenged in the Second Territory Senators’ case but were upheld by the same five to two majority.21

Methods of electing members of the House of Representatives and senators At first, senators and members of the House of Representatives were elected under the first past the post system used in the United Kingdom. [page 83] Under a single voting system, the candidate who received the most votes was successful. Later, in 1918, Parliament amended the Commonwealth Electoral Act 1918 (Cth). Members of the House of Representatives would thereafter be elected on a preferential voting system. In the exercise of its power to prescribe

the method of choosing senators under s 9 of the Constitution, Parliament adopted a block preferential system of voting. The adoption of preferential voting was a response to the growth of party politics. However, in the Senate, similarly to the first past the post system, preferential voting combined with the constitutional requirement that half the Senate retire each three years produced lopsided representation of either Labor or non-Labor parties depending upon their electoral success. The fact that such a position had emerged as early as 1913 would have astounded the surviving founders, who were so anxious to give the Senate a coordinate role with the Lower House. This position continued until the general election in 1949 when the current system of proportional representation for the Senate came into operation.22

The Senate as a states’ House In the 1897 Convention Debates, the dominant aim in having an Upper House was to protect the individual interests of the states as equal partners with the Commonwealth. The leader of the Convention, Barton, was particularly of this frame of mind. There is no doubt that the founders viewed the Senate not merely as a second chamber of revision and review, but more importantly as a council of states. [page 84] Quick and Garran described their conception of the Senate in the following emphatic language: The Senate is one of the most conspicuous, and unquestionably the most important, of all the federal features of the Constitution, using the word federal in the sense of linking together and uniting a number of co-equal political communities, under a common system of government. The Senate is not merely a branch of a bicameral Parliament; it is not merely a second chamber of revision and review representing the sober second thought of the nation, such as the House of Lords is supposed to be; it is that, but something more than that. It is the chamber in which the States, considered as separate entities, and corporate parts of the Commonwealth, are represented. They are so represented for the purpose of enabling them to maintain and protect their constitutional rights against attempted invasions, and to give them every facility for the advocacy of their peculiar and special interest, as well as for the ventilation and consideration of their grievances.23

The Senate has not performed according to Quick and Garran’s description of its dual role. Like most Convention delegates, the celebrated authors failed to appreciate that groups with varying levels of discipline and changing loyalties in the colonial legislatures consisting almost exclusively of politicians of similar conservative backgrounds would not be an enduring feature of the Australian political scene. Even as a states’ House, the Senate would have seldom served to advance the interests of a single state. It would have required at least three states to act in unison to achieve a majority. By 1893, there were Labour members of the legislative assemblies in New South Wales, Victoria, Queensland and South Australia.24 It was becoming clear in most of the colonies that a new political force was emerging that would challenge the conservative nature of the colonial Parliaments, whose members had comprised most of the delegates to the Conventions. [page 85] Among the few who predicted that the Senate would not function effectively as the House for the states was Alfred Deakin, who said at Sydney in 1897: [T]he contentions in the senate or out of it, and especially any contention between the two houses, will not and cannot arise upon questions in regard to which states will be ranked against states … [I]n the United States, and also in Switzerland, and in Canada, as here, the whole of the states will be divided into two parties. Contests between the two houses will only arise when one party is in possession of a majority in the one chamber, and the other in the possession of a majority in the other chamber. We have had it submitted to us that probably the senate will be the more radical house of the two. I am willing to accept that suggestion for the purposes of my argument, though the argument is equally good either way. The house of representatives would then be the more conservative body, and it is possible that a more conservative party in the house of representatives would be confronted by a more radical party in the senate. In both cases the result after a dissolution would be the same. The men returned as radicals would vote as radicals; the men returned as conservatives would vote as conservatives. The contest will not be, never has been, and cannot be, between states and states. It must be and will be between the representatives of the states according to the different political principles upon which they are returned ... [I]t is certain that once this constitution is framed, it will be followed by the creation of two great national parties. Every state, every district, and every municipality, will sooner or later be divided on the great ground of principle, when principles emerge.25

Within 20 years the party system became entrenched in the Federal

Parliament. First, the Fisher Labour party was in office for three years from 1910. In 1913, the Cook Liberal Government took office but without a Senate majority and it was defeated in 1914 after a double dissolution of the two Houses under s 57. Fisher again became Prime Minister, only to be succeeded in the following year by William Morris Hughes. In 1917 Liberal and National Labor parliamentary groups agreed to a merger under the name Nationalists. Under Prime Minister Hughes, the [page 86] first Nationalist ministry consisted of five former National Labor members and six former Liberal members. At the 1919 election 11 ‘country members’ were returned and in 1920 the Australian Country Party was created. In 1923 a coalition between the Nationalists and the Country Party gained office as the Bruce–Page ministry. In 1931 a party called the All for Australia League was formed under Joseph Lyons. Its strength was such that the United Australia Party (UAP) was formed by a merger of Nationalists with Lyons’ new group. It gained office in 1932. There were now three parties represented in the Parliament — the UAP, the Country Party and Labor. The same political party divisions have been the major political forces in the Federal Parliament ever since, the present Liberal Party being established as the successor of the UAP under the leadership of Robert Menzies in 1944, and the Country Party being renamed the National Party. In over a century of federation there has not been one notable instance when the Senate has performed as a states’ House. Senators dissatisfied or disenchanted with the effects on their states because of the treatment accorded to their states in bills coming from the House of Representatives are left to fight their battles in the party rooms, unless they can take advantage of a situation in which the government needs every vote it can muster in the Senate to obtain the passage of its legislation. Since the introduction of proportional representation,

there has always been a closely divided Senate, in which the government has often lacked a majority. This has provided an opportunity for individual senators sometimes to determine the fate of legislation,26 and has significantly enhanced the power and importance of the Senate as a House of review. [page 87]

The Senate as a House of review It will be recalled that in 1891, Henry Parkes emphasised the Senate more as a House of review, which would bring to bear in the federation ‘the conservatism of maturity of judgment, distinction of service, length of experience and weight of character’.27 The powers given to the Senate under s 53 ensure its place as a House of review. That function is an essential feature of an Upper House in a bicameral Parliament, but the review which Parkes had in mind was initially limited by the growth of the party system. In the first 10 years of federal Australia, the Senate had almost no influence as a House of review. Between 1910 and 1946, its role of review was altogether subsidiary to the dominance of the House of Representatives. In 1919, for example, when the Hughes ministry was in office and Labor in opposition, there were 35 government senators and only one Labor senator in opposition. During the life of the Bruce–Page ministry, the Opposition consisted of eight Labor senators. In the Chifley Labor Government beginning in 1946, the Senate was comprised of 33 Labor senators and only three non-Labor Opposition senators. That the bicameral legislative system was not functioning as intended is clearly illustrated by the numbers in the following table. Senate numbers following elections Date of elections

Labor

Non-Labor

1910

23

13

1913

29

7

1914

31

5

1919

1

35

1925

8

28

1934

3

33

1946

33

3

It was not until the introduction of the proportional representation system in time for the elections of 1949 that there was any assurance that the Senate could have a significant role as a House of review. In that year, a [page 88] coalition government led by Prime Minister Menzies replaced the Chifley Government but held only 26 Senate seats. Labor held the other 34, mainly because most of the senators who still had three years to serve under the rotation provisions of the Constitution were Labor senators. From 1949, the pattern was vastly changed. For 39 of the 44 years until July 2005 the government in power lacked a majority in the Senate and usually had to rely on support from a minor party or any independent senator of the time in order to secure the passage of politically controversial legislation. Compromise was the order of the day. In general elections in 2004, contrary to all expectations, the Howard Liberal–National Party Government gained an additional seat in Queensland to give it a 39 to 37 Senate majority. The government took advantage of its control to push measures through the Senate, notwithstanding protestations to the contrary. However, after the general elections of 2007 the new Rudd Labor Government had only a minority of Senate seats, and since then the usual pattern of previous decades has continued. The Constitution sets the broad outline of the operation of the Parliament, but leaves it to the Parliament itself to prescribe most aspects of the voting system. This has led to both Houses now having voting systems that differ from the systems operating at the commencement of Federation: preferential

representation in the House of Representatives, and proportional representation in the Senate. Although the expectation of many of the founders that the Senate would operate as a states’ House has been confounded, since the introduction of proportional representation the Senate’s role as a House of review has been significantly enhanced. When performing this function, it is not only the legislative work of the Senate which is important. The onset of proportional representation afforded the Senate a much needed opportunity to embark on an expansive committee system, described in Chapter 9. It may be through the committee system that the Senate makes its most valuable contribution to the national interest as a House of review.

1. 2.

3.

4. 5.

6. 7. 8.

9.

10.

This is subject to the constitutional minimum of five members for each state, of which Tasmania is still a beneficiary. Under the United States Constitution, the size of the Senate is fixed at two senators for each state but the size of Congress may increase without limit. Despite this, the US Senate has always maintained its standing. It was argued in the Convention Debates that different considerations applied to the US Senate which could use unusual powers, for example, to ratify or reject treaties with foreign countries entered into by the President as the head of the executive branch of government. Proposals to break this ‘nexus’ between the size of the Houses have not been acted upon. See Commonwealth of Australia, Final Report of the Constitutional Commission, Australian Government Publishing Service, Canberra, 1988, pp 176–86. Constitution ss 16 and 34. Constitution ss 9 and 24. Section 9 also states that senators ‘shall be directly chosen by the people of the State’. Section 24 is its equivalent in stating that members of the House of Representatives ‘shall be composed of members directly chosen by the people of the Commonwealth’. Commonwealth Electoral Act 1918 (Cth) s 93(1). Commonwealth Electoral Act 1918 (Cth) s 93(8), (8AA). Even today this would be a significant penalty for a person who may have sat for some years before being found to be disqualified. When the Common Informers (Parliamentary Disqualifications) Act 1975 (Cth) in s 4 abolished actions under s 46 of the Constitution, it imposed in s 3 a penalty of $200 per day, which accrues only on the day in which an action is taken to recover the penalty, and to any subsequent days — removing the possibility of a significant liability arising from sitting while disqualified (except if a member or senator were to continue to sit even after proceedings had been brought against them). The Commonwealth Electoral Act 1918 (Cth) s 354 established the Court of Disputed Returns, using the power granted in s 47 of the Constitution, as an alternative to having the question of disqualification determined by the relevant House. In re Webster (1975) 132 CLR 270; 6 ALR 65.

11.

12. 13. 14. 15. 16.

17. 18. 19. 20. 21.

22.

23. 24. 25. 26.

Barwick CJ considered, in any case, that it was at least open to question whether Webster had any relevant pecuniary interest in the agreement. His decision attracted considerable controversy partly because it was thought that the Full Court should have entertained the case and partly because the outcome was to place a narrow construction on the language of the section. The Chief Justice pointed out that penal consequences attached to a breach of the section and therefore it should receive a strict construction. He also relied on a West Indian case, Laforest (Clerk of the House of Representatives) v Cargill (1959) 1 West Indian Reports 178, which had been decided by a Supreme Court of three. The case involved an analogous situation under which a member of the legislature was the manager and editor of a newspaper company that undertook to publish advertisements as submitted to it from time to time by the government. The court held that each submission of the government to publish an advertisement was a separate offer to take advertising space and each publication was an acceptance of the offer and therefore no continuing obligation resulted. (1992) 176 CLR 77; 109 ALR 577. Deane J dissented on the basis that since Cleary resigned before the declaration of the poll, he was no longer disqualified. Delacretaz remained a citizen under Swiss law until he lodged a demand for release, which he had not done. Similar circumstances applied in Kardamitsis’ case. (1999) 199 CLR 462; 163 ALR 648. House of Representatives Standing Committee on Legal and Constitutional Affairs, Aspects of Section 44 of the Australian Constitution — Subsections 44(i) and (iv), Commonwealth of Australia, Canberra, 1998, p 42. Commonwealth of Australia, note 3 above, pp 274–307. The Act was passed at a joint sitting of the two Houses held in 1974 following a double dissolution and elections under s 57 of the Constitution. Western Australia v Commonwealth (1975) 134 CLR 201; 7 ALR 159. Queensland v Commonwealth (1977) 139 CLR 585; 16 ALR 487. A 1983 amendment to the Commonwealth Electoral Act 1918 (Cth) inserted the provisions relating to territorial membership of the Senate and the House of Representatives: see ss 40, 41, 48, 48A and 53. Proportional representation means that the number of party candidates elected is broadly in line with the number of first preference votes which the party obtained in House of Representative elections. It was probably not realised at the time that the current electoral system would result in candidates without party affiliations being occasionally elected and that the system also would allow minor parties to obtain seats in the Senate although they had no possibility of winning seats in the House of Representatives. As a result of the system, minor parties have enjoyed an influential position in the Senate and have often been a decisive force in determining the outcome of government bills passed in the House of Representatives. J Quick and R Garran, The Annotated Constitution of the Australian Commonwealth, Angus & Robertson, Sydney, 1901, p 414. In 1897 Labour first gained representation in Western Australia and Tasmania. Official Record of the Debates of the Australasian Federal Convention, Vol 2 Second session, Sydney, 2– 24 September 1897 (15 September 1897), p 584. This can deliver power to either minor parties or independent senators. For example, independent Senator Brian Harradine from Tasmania ensured concessions for his state in return for supporting government legislation at a time when the government did not have a majority in the Senate.

27.

Similarly, the Howard Government was able to obtain the passage of its Goods and Services Tax Act 1999 (Cth) after granting concessions in order to gain the essential support of Senator Lees, leader of the Australian Democrats, the minor party which at that time held sufficient Senate seats to combine in a majority for or against the government. Official Report of the National Australasian Convention Debates, Sydney, 4 March 1891, p 26.

[page 89]

Chapter 9

Parliamentary Committees Section 49 of the Constitution declares that, until Parliament otherwise provides, the powers, privileges and immunities of the members and committees of each House shall be those of the House of Commons and its committees as at the beginning of federation. From a slow beginning, there is now a collection of committees which occupy much of the time of their members and have become an integral part of the role of the Senate and to a lesser extent the House of Representatives. In the House of Commons, parliamentary committees perform inquisitorial roles which extend not only to assist the House in its legislative capacity but also in any matter deemed sufficiently important to warrant a committee investigation. Committees in the Senate can be divided into two categories — those concerned with legislation and others which deal with public policy and the administration of government. In the House of Representatives, individual committees exercise both functions.1 Both Houses of early parliaments occasionally established committees to consider and report on specific matters. In 1901, for example, a Senate committee reported on the adequacy of steamship connections between Tasmania and the mainland. Another committee reported in 1919 on the effect of intoxicating liquor on Australian soldiers. However, committees did not have a serious influence on the role of either House until well into the second half of the first century of federation. In 1932, an opposition-dominated Senate that was repeatedly at odds with the Scullin Labor Government appointed the first parliamentary standing

[page 90] committee after a dispute over some regulations. Named the Regulations and Ordinances Committee, its task was to scrutinise subordinate legislation made by the executive government under the authority of Acts of Parliament. The committee had a long history and its namesake still exists today. During the sixties and seventies, the Senate set up a series of select committees to investigate and report on an extensive range of subjects such as the metric system, weights and measures, air and water pollution, breath testing and offshore petroleum resources. A select committee on securities and exchange commanded a lot of media attention. In these years, the House of Representatives displayed little interest in having select committees at all.

Senate standing committees In 1948, the onset of proportional representation for Senate elections gave the Senate a splendid opportunity at last to make good its role as a House of review, but it was slow to take advantage of the opportunity. In 1954, James Odgers, who was to become the Clerk of the Senate, produced a report recommending the introduction of a standing committee system. But action did not follow until 1970, when government backbenchers and Opposition senators joined forces. Odgers prepared a blueprint for the creation of a standing committee system to consider and report to the Senate on legislation, estimates, petitions and other matters referred by the chamber. The Senate adopted his recommendations and set up seven Legislative and General Purpose Standing Committees and five Estimates Committees. A result of committee activities was to turn the spotlight on subjects of general interest to the media and to the community and make them more alert to happenings in Federal Parliament. It also had the effect of enhancing the Senate as a House of review. The standing committees began work in earnest and the system gradually developed to become an integral part of Senate proceedings. The charter given to the committees in 1970 has remained substantially

unchanged. Each committee consists of an equal number of government and non-government senators, usually six, but there are variations. Committee inquiries extend no further than into matters referred by the Senate and [page 91] committees cannot meet during actual sittings of the Senate, without its express order. The standing committees are grouped and named according to subject, for example, community affairs, finance and public administration, and legal and constitutional affairs. They are usually chaired by a government senator. The chair has a deliberative and casting vote, which, of course, means that on vital matters the government will win. Committees usually invite written and oral submissions from experts and interested persons and organisations. The committees have a power to compel the production of documents and to summon witnesses, although any non-compliance must be referred to the full chamber for action. Difficulties arise on occasions as to how far a committee can compel ministers and officers of their departments to produce documents and other information. This has particularly been a problem in the case of ministers who are members of the House of Representatives, who have claimed they are not subject to scrutiny by Senate committees. The Parliamentary Privileges Act 1987 (Cth) applies to proceedings of committees. As Professor Lindell has pointed out, due process and the protection of the rights of witnesses, including their rights to reputation and privacy recognised at common law, have no place in parliamentary proceedings and there is a question whether the procedures that both Houses have adopted for the protection of witnesses go far enough.2 The committee structure is designed to enable the examination of witnesses and issues on a bipartisan basis, but there are occasions when committee inquiries reflect political tensions in the Senate. Committee reports are tabled and debated in the Senate and the government usually undertakes to respond to

any recommendations within three months of reports being tabled, which does not always happen. In 1990, in a report dealing with the first 20 years of the system, the Department of the Senate stated that Senate standing committees had [page 92] produced over 300 reports. The Department’s report claimed extravagantly that the committee reports covered ‘about every issue of significance to Australian public policy and administration’ but the report did not attempt to assess the extent to which the standing committees had affected government action or produced positive outcomes. So far, there has not been any consensus as to the appropriate method for evaluating the effectiveness of a parliamentary committee. By 1990 it was apparent that the steady growth in the functions of the Commonwealth, accompanied by a rapidly growing public service, had rendered Parliament quite incapable of effectively monitoring the activities of all the departments of state and other federal agencies. New procedures introduced in 1990 enabled proposed legislation to be referred to committees on a more regular basis than previously. The Department of the Senate stated in a report that in the first 20 years to 1990 only 39 bills were referred to the standing committees, but under the new procedures 17 bills were referred to them in the first six months.3 The committee system was further developed in 1994. The Senate Procedure Committee devised a procedure which split each legislative and general purpose committee into two separate but matching committees — one called a legislative committee and the other a reference committee. There are currently eight pairs of committees, each named according to subject matter. A reference committee inquires into any non-legislative matter referred by the Senate and the legislative committees (as before) inquire into bills, estimates,4 annual reports and the performance of the departments and agencies. Each committee consists of six members and,

[page 93] as before, legislative committees are chaired by government senators. Nongovernment senators are chairs of the reference committees. The twin committees usually coordinate their work. Towards the end of 2006 the Treasurer, Peter Costello, announced that the government intended to streamline the committee process by the legislative committees absorbing the roles of their matching reference committees (the original position). Costello announced that government senators would occupy the chair of all the reframed committees. Plainly as a result, any government would feel more comfortable about the amalgamated committees in their inquisitorial role. On the legislative side, it would be to the detriment of the Senate as a House of review if the government should seek to restrict the opportunities of the legislative committees to undertake objective examination of proposed legislation coming before them. These reforms operated from September 2006 until May 2009, when matters reverted in essence to the 1994 arrangements. There have always been committees in both Houses to handle internal and housekeeping affairs. In the Senate, committees deal with such subjects as Senate procedures, senators’ interests, selection of bills, appropriations and staffing. Of much more moment there are two standing legislative scrutiny committees. The first, already mentioned, is the Standing Committee on Regulations and Ordinances. This committee examines subordinate legislation made by the executive under the authority of Acts of Parliament, to ensure that delegated powers are not exceeded and that legislation does not contain matters which should be in the principal Act rather than dealt with by administrative action. The committee’s charter is also directed to ensuring that delegated legislation does not trespass unduly on the rights and liberties of subjects or make them dependent upon unreasonable administrative decisions. The committee’s role is buttressed by the fact that the Senate and the House of Representatives may disallow any subordinate legislation required to be tabled under the Legislation Act 2003 (Cth) s 42. The main problem for the

committee is that the vast volume of delegated legislation defies comprehensive scrutiny. [page 94] The second committee is the Standing Committee for the Scrutiny of Bills. Its terms of reference are to examine bills and Acts of Parliament in light of criteria broadly matching those of the Regulation and Ordinances Committee, for example, that the legislation does not trespass unduly on personal rights and liberties, or subject obligations, rights and liberties to insufficiently defined executive powers or unreviewable decisions. Bills are also examined for inappropriate delegation of legislative powers. All proposed parliamentary legislation is referred to the scrutiny of the bills committee. Both committees have a reputation for good and effective work.

Senate select committees The Senate continues to make use of select committees, but not frequently. These committees cease to exist when their allocated time expires or they present their final reports, but they can be reappointed. Subjects may be controversial. Some examples are: 1995

Aircraft Noise in Sydney Unresolved Whistleblower Cases

1996

Radioactive Waste 1999 New Tax System

2002

A Certain Maritime Incident (the ‘Children Overboard’ Affair)

2003

Medicare — First Inquiry

2004

Ministerial Discretion in Migration Matters The Free Trade Agreement between Australia and the United States

2010

Regional and Remote Indigenous Communities

The powers and privileges of select committees are similar to those of the

standing committees. In some cases non-government senators as a group have been accused of taking advantage of their numbers in the Senate to set up inquiries to embarrass the government rather than to undertake an objective examination of issues. Some reports have shown clear divisions along party lines. [page 95]

Joint committees Some committees consist of senators and representatives dealing with subjects that are considered to warrant simultaneous inquiry by both Houses. Occasionally the Houses have agreed on the formation of a joint committee to consider a specific subject. A notable early example during the term of the Menzies Government was the establishment by separate resolutions of the Joint Committee on Constitutional Review.5 In 1959 the committee produced a report containing many recommendations for constitutional change, but it failed to stimulate parliamentary action on most of its recommendations. Another important example was the 2013 report of the Joint Select Committee on Constitutional Recognition for Aboriginal and Torres Strait Islander Peoples.

Joint standing committees For several years there have been joint standing committees, for example, on Public Accounts and Audit. Some of these are statutory joint committees (for example, the Parliamentary Joint Committee on Human Rights), while others are established by the Houses other than by legislation (for example, the Joint Standing Committee on Electoral Matters). The number of joint committees continues to grow. Senate loyalists, notably Harry Evans, who served as Clerk of the Senate from 1988 to 2009, had misgivings about Senate participation in joint committees. From one perspective, participation in joint committees is seen as inconsistent with the Senate’s independence as a chamber of review. On the other hand, joint committees are an important component of the parliamentary fabric and they

can be significant to Parliament in presenting a united front in dealings with the executive government. In 1996, the Howard Government agreed to establish the Joint Standing Committee on Treaties (JSCOT). Up to that time the treaty-making [page 96] process rested entirely in the hands of the executive government and the parliamentary role was essentially to give effect to a treaty that required legislation, to which Australia was already a signatory. Among other things, the committee was given the power to scrutinise treaties tabled in Parliament before they were ratified by Australia. In its first five years, JSCOT presented 39 reports covering over 190 treaty actions.6

Committees in the House of Representatives As the House which provides most of the ministers and usually carries on with comfortable working majorities, there is not the same incentive for the House of Representatives to establish committees. Individual members, unlike their colleagues in the Senate, usually spend much of their time attending to the affairs of their electorates. Until 1987, standing committees did not exist. In that year, however, with the Senate committee system in mind, the House of Representatives voted for the introduction of a set of general purpose standing committees which, with government approval, could examine contemporary subjects in much the same way as the Senate committees. These committees have powers of investigation matching those of the Senate committees. If the House had carried on without them it would be open to the accusation that it had little interest in the traditional principle of British democratic government rendering the executive government answerable to Parliament. In practice though, the effectiveness of these committees depends on the willingness of the government to make use of them. The main function of the standing committees is to examine the annual

reports of government departments and agencies and the Auditor-General, referred to one committee or another according to subject matter, by the [page 97] House or a minister.7 The number of such committees has grown to 16 in 2016. The House has also elected some select committees over the years, but since 1987 there have been only three — Print Media in 1991, Televising of the House of Representatives in 1991 and Recent Australian Bushfires in 2003. No government would willingly run the risk of establishing a select committee likely to cause it any serious embarrassment. Compared with the Senate’s committees, those of the Lower House are low key performers.

Effectiveness of parliamentary committees Senate standing committees have performed more effectively than their Lower House counterparts, but their influence on the government at any particular time is extremely difficult to assess. There is no agreed systematic way of evaluating the effectiveness of parliamentary committees because there are so many differing factors and circumstances in which they operate. The Senate Department report on the first 20 years (1970 to 1990) of the legislative and general purpose standing committees states: ‘After 20 years of operation, the Senate standing committees remain “standing ready” to act on behalf of the Senate to take Parliament to the people, obtain their views and in reporting them improve government decision-making while preserving and enhancing the quality of Australian parliamentary democracy.’8 In that time the committees produced over 300 reports described in the publication but, with a few notable exceptions, the reader is left in the dark as to the results which were achieved.9 [page 98]

Committees, of course, are only advisory and governments are free to ignore their recommendations, as often happens. However, they should not be judged by the levels of acceptance of their recommendations or by immediate results, but rather by the quality of their work in shedding light on subjects and issues that have previously escaped serious political attention and which could require future parliamentary or executive action. Their ability to do this effectively depends on inquiries being objective and impartial — no easy task in a committee composed only of politicians. Plainly, the Senate and its committees are at their most formidable when, through the operation of the present electoral system, the government lacks a Senate majority as it often has since 1948. When the government gains a Senate majority, as the Howard Government did in 2005, the Senate no longer constitutes a vital impediment to its legislative proposals. When this happens, the Senate’s role as an independent House of review is diminished. Political considerations have sometimes intervened to impair the effectiveness of the committee system. Until 2016, the system of compulsory preferential voting, when combined with proportionate representation, had allowed preelection preference deals to lead to the election of senators who have negligible public support, by distribution of the preferences of voters who mostly know nothing of their policies.10 The growth in the number of independent and minor-party senators, together holding the balance of power, has led to a perception in government circles that Senate committees are providing avenues to vent minority political interests. Amendments to the Commonwealth Electoral Act 1918 (Cth) were passed in 2016 with the intention of changing this situation by introducing a limited form of optional preferential voting for the Senate. Under these changes, voters have to preference either at least six groups (parties) above the line,11 or at least 12 individual candidates below the line.12 By no longer permitting [page 99] parties themselves to allocate preferences (as had occurred previously when a

voter chose only one group above the line), and by not requiring voters to ‘exhaust’ their vote by preferencing every individual candidate, these reforms are likely to reduce significantly the number of independent and micro-party senators elected at most elections.13 The committee system is likely to continue to be the most valuable contribution to the national interest that the Senate makes as a House of review. However, much of the committee system’s prospects will depend on the committees’ examinations of matters referred to them being seen as objective, and of course on the government of the day not having a majority in the Senate. To achieve this perceived objectivity, committees must direct their activities towards assisting the parliamentary legislative process, rather than simply exploiting any opportunity to embarrass the government of the day. If this fundamental objective is upheld, the committee system will remain as a material component of responsible government in a bicameral Parliament.

1.

2. 3. 4.

5. 6.

7. 8.

Attorney-General (Cth) v MacFarlane (1971) 18 FLR 150; [1972] ALR 619, which suggested that Australian governments might not be able to establish committees with broad mandates, has not been followed. G Lindell, ‘Parliamentary Inquiries and Government Witnesses’ (1995) 20 Melbourne University Law Review 383, pp 410–13. Senate Legislative and General Purpose Standing Committees: The First 20 Years 1970–1990, Department of the Senate, Canberra, 1991, p 4. The functions of the estimates committees created in 1970 have been absorbed by the legislation committees. In the estimates role, the legislative committees receive twice-yearly details of proposed government expenditure and tax expenditure statistics derived from two sets of appropriation bills normally tabled in May (Budget Details) and November (Additional Estimates). This role provides a good opportunity for committee members to express their political sensitivities. When a legislative committee undertakes consideration of the estimates it is still commonly called an estimates committee. Old ideas die hard. Editor: The legal secretary of the committee, Jack Richardson, came to prominence in recognition of his work on this inquiry. A Twomey, ‘Federal Parliament’s Changing Role in Treaty Making and External Affairs’ in G Lindell and B Bennett (eds), Parliament — The Vision in Hindsight, Federation Press, Sydney, 2001, pp 87– 9. Other matters can be referred including pre-legislation proposals. Bills may also be referred for advisory reports but the committees do not have a major legislative function. Senate Legislative and General Purpose Standing Committees: The First 20 Years 1970–1990,

9.

10. 11. 12. 13.

Department of the Senate, Canberra, 1991, p 4. The Standing Committee on Legal and Constitutional Affairs is one of the more notable exceptions. It deals with a wide range of matters, for example, in areas of constitutional and administrative law as well as parliamentary matters. One inquiry led to the establishment of the Senate Standing Committee for the Scrutiny of Bills. For example, the 2013 election brought in Ricky Muir of the Australian Motoring Enthusiast Party, with 0.51 per cent of the primary vote. Commonwealth Electoral Act 1918 (Cth) s 239(2). Commonwealth Electoral Act 1918 (Cth)s 239(1). A challenge to the validity of these amendments (on the basis of the implied freedom of political communication, as to which see Chapter 32) by a minor party senator was rejected unanimously by the High Court in Day v Australian Electoral Officer for South Australia (2016) 331 ALR 386; [2016] HCA 20. As it turned out, a significant number of minor party senators were returned at the 2016 election. However, this is attributable to a combination of the double dissolution (which halves the number of votes required to secure a Senate seat) and an increase in the vote directly for minor parties. The lowest primary vote received by a successful candidate was Bob Day, returned in South Australia with 2.86 per cent of the primary vote (nearly six times the primary vote of the lowest successful candidate at the 2013 election — see note 10 above).

[page 101]

Chapter 10

Parliament in Action Parliament is at the pinnacle of the federal democratic system. The shaping and working of the Constitution is a function and responsibility which it shares with the High Court and, more influentially than the court, it determines how Australia should be governed. It is the exclusive source of legislation which provides the necessary basis of government and it is the primary institution by which the performance of the ministry and other segments of executive government are brought to the notice of the electors to assess for themselves, as far as they can, at the polling booths. Parliament’s role is so vital that the institution has to be safeguarded irrespective of whether at any given time it is performing well or badly. It is a perfect example of the whole being greater than the sum of its parts. Forming a government Parliament’s first function after a general election is to provide for the formation of a government from the party, or combination of parties, which has won a majority of seats in the House of Representatives. This is achieved by the Governor-General commissioning the leader of the successful team to form a government under his or her leadership as Prime Minister. Apart from a period of 22 days in 1967–68, all Prime Ministers have come from the House of Representatives.1 With the government in office, official recognition is accorded to an Opposition consisting of the major party or combination of parties which has not gained government. The Leader of [page 102]

the Opposition and its shadow ministers represent a possible alternative government. It is then the Governor-General’s role to summon Parliament by a date that ensures Parliament will meet not later than 130 days from the date on which election writs were issued.2 The Cabinet system Under s 64 of the Constitution, the Governor-General appoints ministers to administer the departments of state which he or she also establishes. The Governor-General does so of course acting on the advice of the federal executive council to which ministers belong. In the first half century of federation, all ministers were members of Cabinet. In 1956 the Prime Minister, Robert Menzies, divided his ministers into two groups — those who were to be members of Cabinet and those who formed an outer ministry and attended Cabinet meetings only as required. He also initiated the appointment of parliamentary secretaries to assist ministers. The practices continue until the present time,3 although parliamentary secretaries are now known as assistant ministers. The Constitution does not provide for parliamentary secretaries and they do not receive greater salaries than ordinary members, because that would expose them to holding an office of profit under the Crown, contrary to s 44 of the Constitution. To be a parliamentary secretary can be a stepping stone to becoming a minister. In 2000, the Howard ministry consisted of 17 Cabinet ministers and an outer ministry of 13 ministers including a special minister of state and an assistant treasurer. There were 12 parliamentary secretaries. In 2016, the Turnbull ministry consisted of 22 Cabinet ministers, eight ministers in the outer ministry, and 12 assistant ministers. [page 103] Regulation of procedures The Constitution makes it clear that the two Houses are independent of each other in the exercise of their functions. Under s 50, each House can make rules

and orders for the conduct of its business and proceedings and can do so either separately or jointly with the other House. Each can also determine its own privileges and immunities. Proceedings in both are regulated by sets of standing orders and a variety of mechanisms and procedures that have grown over time. Acts of Parliament Either House may initiate legislation except that the bills appropriating revenue or imposing taxation, which constitute the lifeblood of executive government, must originate in the House of Representatives.4 Since governments are formed from members of the Lower House, most bills are first introduced there. About half the sitting time of the Houses is taken up with the passage of legislation. In practice, proceedings in the House of Representatives are almost invariably in the control of the government.5 Televised proceedings sometimes suggest to viewers that the House is a serious deliberative chamber when bills are before it, but in practice it has little claim to be such. Debate on most bills, if it occurs at all, is usually desultory.6 During the procedural process the government may accept amendments to a bill, but [page 104] it does so secure in the knowledge that it has the numbers in the House to ensure a successful outcome. Party loyalty comes at a cost to the deliberative processes of the Parliament.7 A bill may pass in the House of Representatives in an hour or two, and passage usually hastens towards the end of a sitting. About 150 to 250 bills are passed each year. The texts of the 164 Acts passed in 2005 were contained in seven published volumes totalling more than 5,000 pages, well beyond the capacity and combined skills of either House to examine in any worthwhile way in the course of their passage. The position is not made any easier by the fact that the House of Representatives averaged just under 64 sitting days each year (in the period 2006–15) — less than it sat for during the first 10 years of federation (an average of almost 95 sitting days per year in the period 1901–10),

when it passed an average of 32 bills each year. A former member and senator, David Hamer, considered the Lower House to be a total failure as a legislature. He expressed his disillusionment thus: As an example of its performance, during the twelve years between 1976 and 1987, under two different governments, not a single Opposition amendment was accepted to any of the 2,000 bills passed (except for two bills which were handled by an experimental procedure which was soon stopped by the Government). Bills were contemptuously bulldozed through under a guillotine—for example, ten bills being allowed a total of five minutes for all stages of consideration.8

The Senate is a more leisurely chamber. Senators do not have to worry about facing electorates as individuals. Bills transmitted to the Senate have at least the possibility that they will be debated with more meaning than in the [page 105] House of Representatives. There is no shortage of examples where the debates have resulted in the making of amendments which have been subsequently accepted by the Lower House. Exponents of Senate legislative authority point out that the Senate is alone as an institution which stands between the Australian community and an electoral parliamentary dictatorship, which the House of Representatives could otherwise become. Nonetheless the strength of the claim rests as much on the electoral results produced by the present system of proportional representation as on the role envisaged for the Senate at Federation. While the current system continues, the Senate will retain the capacity to be a formidable force in processing legislation. This does not however illustrate that it has given effect, broadly speaking, to the intentions of most of the founders. Greg Craven, expressing concern about the imbalance in the federal system in favour of the Commonwealth, wrote: ‘The Senate’s failure to act as a constitutional prophylactic against the Commonwealth raids upon the states placed enormous pressure on the High Court.’9 As a House of review, the Senate has performed much more effectively than as a states’ House.

Representation of the people

In true democratic spirit, members of the House of Representatives usually quickly vacate Canberra when sittings conclude and return to their electorates to ascertain what they can do for their constituents and, incidentally, for their prospects of re-election. Members and senators may also have other functions to perform between sittings, for example, as members of parliamentary committees or visiting other countries to enhance their parliamentary capabilities. Conversely, senators are more concerned about the ranking their party will give them when they are next up for re-election. [page 106] Parliamentary procedures provide for question times during which members and senators may ask searching questions about the actions of ministers and the departments and agencies for which they are responsible. Question time can be an important mechanism for holding the executive to account. It also provides some opportunity for members to ask questions on behalf of their constituents. However, every second question comes from a government member, and these inevitably are ‘Dorothy Dix’ questions, which invite ministers to offer responses to the government’s advantage. With occasional exception, the government usually carries on without being greatly affected by question time proceedings.10

Parliamentary privilege The restraints on legislative and executive power associated with the exercise of the judicial power of the Commonwealth under Ch III of the Constitution do not extend to proceedings in Parliament. Section 49 of the Constitution allows Parliament by declaration to formulate the powers, privileges and immunities of both Houses but until it does so they are to be those of the House of Commons as at the establishment of the Commonwealth in 1901. Parliament has only partly exercised its power and it did not exercise it at all until 1987 when it passed the Parliamentary Privileges Act. Previously it had pinned its faith in the privileges of the House of Commons. Under the Parliamentary Privileges Act 1987 (Cth), if either House finds

that a person has committed a breach of the privileges or immunities or is in contempt of the House, it is ‘an offence against the house’.11 If the person is found by either House to have committed an offence, that House may impose ‘a penalty of imprisonment for a period not exceeding 6 months’ or a fine of up to $5,000 for a natural person, or $25,000 for a corporation.12 [page 107] Parliament is not only prosecutor and judge in its own cause, but there is no appeal from the decision. In 1955, an issue of contempt of Parliament arose to which, for the first time, the rules of the House of Commons were applicable. A freelance journalist, Frank Browne, was the author of a gossipy newsletter called ‘Things I Hear’. It was eagerly read in Canberra and the states for its political content. Browne was also editor of the Bankstown Observer owned by Raymond Fitzpatrick, a contracting engineer. Browne published an article accusing a local Labor Party member, Morgan, of trafficking in entry permits for refugee migrants. After receiving a complaint from the member, a newly formed Committee of Privileges reported the breach of privilege to the House of Representatives. Browne and Fitzpatrick were called to the Bar of the House by compulsory process for members to hear what they had to say for themselves before being sentenced to three months gaol each for contempt of Parliament. They subsequently appealed to the High Court for a writ of habeas corpus but were unsuccessful.13 The Houses have made certain improvements to their procedures since that case, but still refuse to take the step of transferring jurisdiction over contempt to the courts.14 Members enjoy absolute privilege of immunity from suit and prosecution for statements and allegations they make in Parliament. The privilege extends as far back as England’s Bill of Rights 1688 and also covers proceedings in the courts. Members cannot be made answerable for their parliamentary statements except to the House to which they belong.

[page 108]

Parliament and the executive Much parliamentary time, both during sittings and in between, is taken up with scrutiny of activities of the government and the public services and other agencies of executive government. The object is to ensure that ministers of the government and the growing army of public officials carry out the powers and functions conferred upon them in the public interest or in the interests of worthy groups in the community. The further purpose is to assert the supremacy of Parliament as the institution of government directly elected by the people, over actions of the executive government in their various guises. In the second century of federation this has become Parliament’s preoccupation. The official publication Year Book Australia 1997 offered the following explanation of the position: The idea that Parliament ‘controls’ ministers, as well as government policy and the departments and statutory bodies which implement these policies, is a concept which had more relevance in the nineteenth century than it does today. … Today it is more realistic to speak of Parliament influencing or guiding the Executive, or of Parliament scrutinising the actions of executive government and recommending or pressing upon it different courses of action. This influence is exerted in many ways through the procedures of each House and through question time in each House. Two aspects of parliamentary control over executive government are worthy of special mention. The first relates to the legislative power of the Parliament; the second to influence and control through committees of the Parliament.15

Since the introductory years of the 21st century, there has been a growing demand for transparency in public administration in the hands of departments and the substantial list of independent statutory government agencies. However, even the most orderly parliamentary processes may not achieve adequate accountability in the exercise of discretionary executive powers, with which the administration abounds. [page 109] Parliament and the federal judiciary

The High Court will tolerate no interference from Parliament or the executive in the exercise of the judicial power of the Commonwealth. Only courts constituted in accordance with Ch III of the Constitution may exercise the judicial power of the Commonwealth and those courts cannot be given functions inconsistent with the federal judicial process.16 The position imposes restrictions on Parliament’s power to vest adjudicative functions on administrative agencies.17 Of course, the meaning and extent of Parliament’s specific legislative powers depend on decisions of the High Court in its role as a constitutional court under Ch III. Both institutions — Parliament and the High Court — have however a mutual interest in ensuring that the Constitution can be adaptable to the needs of the time. For example, the High Court has held that Parliament may legislate to give someone in the executive government, usually the Governor-General but sometimes a minister, power to make regulations to carry an Act into effect.18 A contrary decision would have paralysed government as we have known it. Regulations are frequently longer than the Acts of Parliament that provide the source of the delegated power. While they derive their authority from the Governor-General or the delegated minister, and are scrutinised by parliamentary committees, such regulations are the work of unelected administrative personnel. Executive law making Traditionally the functions of the executive government have been carried on mainly by a set of government departments, established in accordance with the Constitution, each with a minister in charge who is responsible to Parliament [page 110] in respect of its performance. In 2015 there were 17 such departments employing about 133,000 public servants under the Commonwealth Public Service Act 1989 (Cth). Much governmental activity is, however, undertaken in an elaborate range of statutory agencies, as diverse as the Australian Broadcasting

Corporation, the Civil Aviation Safety Authority, the Australian Wine and Brandy Corporation, the Australian Securities and Investments Commission, and the Australian Security Intelligence Organisation. There are several hundred agencies, all responsible to varying degrees to individual ministers and listed in Administrative Arrangement Orders according to the appropriate departments. Most of the powers, functions and duties of the departments and agencies have Acts of Parliament as their source. The Acts necessarily stop short of detailed coverage of their subject matter and, instead, usually empower the government in the name of the Governor-General or the minister, to make regulations to put their provisions into effect. Some areas of government, well known to the community at large or by special interests, are dominated by regulations which the executive has made. By and large the public is more directly affected by regulations intervening in their daily lives than the Acts of Parliament themselves. Regulations abound in such areas as taxation, customs, aviation, social welfare, superannuation, migration, defence, health, public service management, marketing of goods and services and the export trade. The annual output of regulations runs to around 5,000 pages, and they vest a vast arrangement of powers in bureaucracy. Necessary and desirable as they may be in the cause of effective government, the overall effect has been to seriously diminish Parliament’s traditional claim to control over officialdom. The House of Representatives is open to the accusation that it does more to shore up the interests of the government than to perform as a superior legislative chamber. In 2003, in an attempt to bring the subordinate legislative role of the executive government more to notice and to provide greater supervision, Parliament passed the Legislative Instruments Act. It came into force in January 2005, and was renamed the Legislation Act 2003 in March 2016. [page 111] The Act provided that, unless specifically exempted, all legislative instruments are to be registered on the newly created Federal Register of Legislative

Instruments, or they will not be enforceable. An explanatory statement must also accompany each regulation. A legislative instrument is defined as being of a legislative character made under a delegation from Parliament. After registration, a legislative instrument must be tabled before each House within six sitting days or it will cease to have effect.19 Either House may disallow an instrument within 15 sitting days after tabling, whereupon the instrument ceases to have effect.20 The registration requirements and the accompanying explanatory statements should place Parliament in a better position to scrutinise subordinate legislation. They will also help the public to be better informed. However, the volume of delegated legislation is so massive that in most cases only cursory examination is practicable. Only time will tell whether the new requirements will greatly change existing relationships between Parliament and the executive. Since the enactment of the Acts Interpretation Act 1901 (Cth) it has always been open to either House to disallow regulations and other species of subordinate legislation. Disallowance has occurred in the Senate from time to time. But it generally does not occur in the House of Representatives because the government is in control of its members. Notwithstanding Parliament’s procedures for the control of the executive government, relief for individual members of the community from defective administration on the part of the bureaucracy will continue to depend mainly, not on parliamentary action, but on Acts of Parliament which have established extra-parliamentary avenues for the review of administrative action such as the Freedom of Information Act 1982 (Cth), the Administrative Appeals Tribunal Act 1975 (Cth), the Ombudsman Act 1976 (Cth) (all of which are examined in Chapter 31) and of course the courts, insofar as members of the community can afford to litigate.

1.

In December 1967, Prime Minister Holt was lost at sea and the leader of the Country Party, Senator John McEwen, who was deputy Prime Minister, was commissioned to be a caretaker Prime Minster until the Liberal Party chose a new leader. The Liberal Party chose Senator Gorton, who in February

2. 3. 4. 5.

6. 7.

8.

9. 10. 11. 12. 13.

14.

1968 resigned from the Senate and was subsequently elected a member of the Lower House. Writs must be returned no more than 100 days after issue: Commonwealth Electoral Act 1918 (Cth) s 159. Parliament must meet within 30 days of the return of the writs: Constitution s 5. In 1973 Labor Prime Minister, Gough Whitlam, returned to the earlier practice of having all ministers in Cabinet, but subsequent Prime Ministers did not follow in his footsteps. Constitution s 53. With few exceptions, incoming governments have enjoyed comfortable majorities in the Lower House. Prime Minister Cook was an early exception in 1913. In 1941, the Fadden Government held office only with the support of two independents and resigned when they withdrew their support. In 1961, the Menzies Government was returned to office with only a two-seat majority, but it lasted a full term. The Gillard Labor Government elected in 2010 commanded a majority only by virtue of having negotiated the allegiance of independents to whom it granted concessions shortly after the election. Nonetheless, the Labor Government served a full term, albeit that Gillard was deposed as leader of the Labor Party, and thus as Prime Minister, before that term was complete, in favour of a return to Kevin Rudd. The Turnbull Coalition Government was re-elected in 2016 with a two-seat majority. Most bills are, of course, not controversial. They provide machinery legislation for the ordinary processes of government and mostly amend pre-existing legislation. Government members are known on rare occasions to cross the floor and vote with the Opposition but more in protest against a party room decision than with any thought that their vote will affect the outcome of the debate. A party reprimand may follow, especially for members of the Australian Labor Party, whose rules forbid floor-crossing. More timorous souls occasionally abstain from voting on a measure they dislike. Others may absent themselves from the proceedings. S Bach, Platypus and Parliament: The Australian Senate in Theory and Practice, Department of the Senate, Canberra, 2003, at 240. Hamer’s statement is one of several in the same vein from different commentators. Bach stated that he would have happily balanced them against an equivalent array of complementary and optimistic assessments of the House, but he could not find any: at 241–2. G Craven, Conversations with the Constitution: Not Just a Piece of Paper, UNSW Press, Sydney, 2004, p 78. Standing orders of the House of Representatives also provide for an occasional Grievance Day during which members may give voice to matters of particular concern to the members. Parliamentary Privileges Act 1987 (Cth) s 3(3). Section 4 further limits the conduct that can amount to an ‘offence against the house’. Parliamentary Privileges Act 1987 (Cth) s 7. Browne refused to be cowed by the parliamentary ordeal. For a description of parliamentary privilege and the proceedings in the High Court in R v Richards; Ex parte Fitzpatrick and Brown (1955) 92 CLR 157; [1955] ALR 705, see G Williams, S Brennan and A Lynch, Blackshield and Williams Australian Constitutional Law and Theory: Commentary and Materials, 6th ed, Federation Press, Sydney, 2014, 15.4–15.7. Parliamentary Privileges Act 1987 (Cth) s 9 now requires, in the case of a penalty of imprisonment, that the House set out the facts which it found to constitute a breach of privilege. This permits a limited form of judicial review not available in R v Richards; Ex parte Fitzpatrick and Brown (1955) 92 CLR 157; [1955] ALR 705. On other innovations relating to privilege more broadly, see H Evans, ‘Parliamentary Privileges Changes to the Law at Federal Level’ (1988) 11 University of New South Wales Law Journal 31, pp 44–6.

15. 16.

17. 18. 19. 20.

W McLennan, Year Book Australia 1997, Australia Bureau of Statistics, ABS Catalogue No 1301.0, Canberra, 1997, p 26. R v Kirby; Ex parte Boilermakers’ Society of Australia (1956) 94 CLR 254; [1956] ALR 163. However, s 77 of the Constitution permits Parliament to make laws vesting federal jurisdiction in any court of a state. Parliament has exercised the power: indeed, to this day, there are no federal criminal courts of general jurisdiction. Brandy v Human Rights and Equal Opportunity Commission (1995) 183 CLR 245; 127 ALR 1. Dignan v Australian Steamships Pty Ltd (1931) 45 CLR 188; [1931] ALR 213. Legislation Act 2003 (Cth) s 38. Legislation Act 2003 (Cth) s 42.

[page 113]

Chapter 11

Resolving Deadlocks Between the Two Houses: Section 57 Between 1910 and 1948 there were few occasions when the government encountered a hostile Senate determined to exercise its power of veto over bills coming from the Lower House. The first was in 1914, when the Cook Liberal Government gained office with a marginal majority in the Lower House but held only seven seats in a Senate of 36. After suffering a series of defeats in the Senate, Cook resorted to a double dissolution under s 57 of the Constitution. In 1929, the Scullin Labor Government attained office just before the onset of a worldwide depression which was to last for several years. Although Scullin had a healthy majority in the House of Representatives, his party, rather surprisingly, made no headway in the Senate where it held only seven of the 36 seats. This was partly due to overwhelming Nationalist Party success at several previous half Senate elections. Within a few months the Senate rejected four bills and referred a measure to create a central banking scheme to a select committee. Further troubles followed as the Depression took hold. The Commonwealth had engaged in heavy overseas borrowing for itself and on behalf of the states, which it found extremely difficult to finance. The chairman of the Bank of England, Sir Otto Niemeyer, was invited to advise a premiers’ conference at which he stated that all governments should undertake a heavy deflationary program. Niemeyer was seen by many in the Labor Party, including the New South Wales premier, Jack Lang, as a debt collector for English bondholders. The Scullin Government was in a state of virtual legislative paralysis but it held on to office until a dissolution of [page 114]

the Lower House and its subsequent defeat in the elections held near the end of 1931. Senators were originally elected under the first past the post system used in the UK and the USA, where electors simply marked their voting papers for the number of candidates to be elected and those with the highest total of votes were elected. The system produced one-sided results: for example, after the 1913 elections Labor held 29 of the 36 Senate seats. Imbalance could also be magnified by the fact that, with only half the senators retiring every three years, incoming governments could face an ensconced bank of senators hostile to their cause. This was the fate of the Scullin Government in 1931. In 1919, the Commonwealth Electoral Act 1918 (Cth) was amended to introduce a block preferential system which allowed candidates of the same party to be grouped together on the ballot papers and voted upon as a group. The purpose was to ensure that the party with the highest number of votes for its candidates would easily win most vacant seats. The new system was established in recognition of the party nature of Senate elections, but it did little else and grotesque results continued to occur as before. For example, in 1929 the National and Country Party coalition won all vacant seats. Labor did the same in 1943. After the 1919 elections, the Senate consisted of 35 Nationalists and the Opposition was composed of only one Labor senator. This absurd result was repeated in 1934 when a Country Party and United Australia Party coalition occupied 33 Senate places and the Labor strength was reduced to three. In 1948, the Labor Government brought about a major change to the Commonwealth Electoral Act in the hope of gaining representation in the Senate more in proportion to the number of votes counted. This was at the time when Labor had 33 of the 36 senators. It introduced the system of proportional representation for Senate elections, based on the Hare–Clarke system in Tasmania. This system remains in place to this day. [page 115] The system unfortunately defies a simple description. The first step under the

system is to establish a quota of votes necessary for each candidate to obtain in order to become elected. This is done by taking the total number of first preference votes for all candidates and dividing it by one more than the number of candidates to be elected. The resulting quotient plus one is the quota necessary to become elected. When a candidate achieves a quota his or her surplus votes are transferred to the continuing candidates in proportion to each voter’s preferences. As each candidate achieves the quota, his or her preferences are distributed among the remaining candidates until all Senate vacancies in the state are filled. Although the Constitution does not incorporate any formal machinery for the settlement of disagreements between the two Houses by any consultative process, there is nothing to prevent consultative machinery being established, and there have been a handful of occasions when managers of each House have conferred and reached agreement subsequently proving acceptable to both Houses. However, in the absence of such alternative approaches being utilised, the rigorous provisions of s 57 govern the resolution of disagreements between the two Houses. Section 57 is the third longest section in the Constitution. It applies only to laws first passed in the House of Representatives. In general terms it provides that if the Senate, with an interval of three months intervening, twice rejects any proposed law or fails to pass it, or passes it with amendments to which the House of Representatives will not agree, the Governor-General may dissolve both Houses simultaneously. A double dissolution cannot occur within the last six months of the term of the House of Representatives. If, after the election of a new Parliament, the House of Representatives again passes the proposed law and the disagreement still persists, the Governor-General may convene a joint session of the two Houses to vote on it. If it is passed by an absolute majority of the total number of members of both Houses, it becomes law after receiving royal assent. [page 116]

First double dissolution: 1914 Liberal Prime Minister Joseph Cook scraped home in elections in 1913, with a majority of only one after his party provided a speaker. His government held only seven of the 36 Senate seats. Cook soon suffered defeats in both Houses and, thoroughly frustrated, his government in 1914 submitted a bill to the Senate abolishing preference to unionists in the Commonwealth Public Service. The Senate twice rejected the bill. The Governor-General granted Cook’s request for a double dissolution, but in the elections which followed his government suffered a disastrous defeat. Just a few days later, World War I broke out. Later in the Depression years, the Scullin Government suffered continuous defeats in the Senate but did not resort to a double dissolution because it feared loss of office in those times of high unemployment.

Second double dissolution: 1951 In 1948, Robert Menzies brought the Labor Government to an end by a comfortable electoral win. However, although the incoming government had some electoral success, it still held only 26 of the 60 Senate seats because of earlier Labor victories under the old Senate electoral system. Menzies challenged the Senate with a bill to re-establish the Commonwealth Bank Board, which was a sensitive issue in light of the previous Chifley Labor Government’s failure to nationalise the banks. After the Senate twice rejected the bill, the GovernorGeneral granted Menzies a double dissolution. The government was returned with a majority in both Houses. Parliament passed an equivalent bill and thus a joint sitting was unnecessary.

Third double dissolution: 1974 After almost 23 years in opposition, Labor under Gough Whitlam won an election for the House of Representatives in 1972 but was without a Senate majority. In 1973–74, the Whitlam Government experienced repeated defeat in the Senate, where six bills passed in the Lower House were twice rejected.

[page 117] In 1974 the Opposition took an unprecedented stance by announcing that it would not allow the passage of the government’s appropriation bills unless it agreed to an election for the Lower House. Whitlam refused to budge and approached the Governor-General for a double dissolution. On learning that the Prime Minister was seeking a dissolution, the Opposition avoided an impending financial crisis by passing the appropriation bills. At the ensuing general elections the Labor Government was returned but failed once more to gain a Senate majority. The six bills were again presented to the Senate and twice rejected, whereupon the Governor-General convened the first and only joint sitting of the two Houses under s 57. The six measures were passed, but the government’s inability to attain a Senate majority was a portent of worse things to come in the following year (see Chapter 30). Until 1974, s 57 had not been the subject of litigation. Conventional wisdom at the time was that the section was not justiciable. First, it was thought that since the section dealt only with a proposed law, its application should be a matter for Parliament to decide and not the courts. Second, the section dealt only with conditions of deadlock in respect of a single proposed law and not a collection of them.1 In the Joint Sittings case2 two Opposition senators challenged the validity of the double dissolution with the main argument being that the Governor-General could only grant the dissolution over one single bill, as opposed to several bills. The High Court held that the section was justiciable at least as to the question of whether the specified procedural requirements were satisfied. It further held that the section had a distributive operation and could apply to any number of bills. If the two senators had won their case, it would have meant that only a single bill could have been considered and passed at a joint sitting. Thus, the Whitlam Government’s deadlock situation would not have been resolved in respect of the other five bills that [page 118]

formed the subject of the dissolution.3 The High Court’s decision makes it clear a government can accumulate a stock of twice rejected bills. It can also decide when it should seek a double dissolution.4

Fourth double dissolution: 1975 The 1975 dissolution was the most momentous and controversial occasion in the history of the Commonwealth Parliament and involved an extraordinary application of s 57. After rejecting advice from the Prime Minister, Gough Whitlam, Governor-General Sir John Kerr, in the exercise of the so-called reserve powers of the Crown and his constitutional responsibilities under Ch II of the Constitution, dismissed the Prime Minister and his government from office and appointed Malcolm Fraser as leader of a government on the condition that he seek a double dissolution. This remarkable incident is examined in more detail in Chapter 30. The situation arose after the Opposition parties in control of the Senate, notwithstanding their electoral defeat in 1974, continued to twice reject bills of significance to the Whitlam Government’s legislative program. The Opposition felt secure in the knowledge that the government’s financial policies and actions of particular ministers were causing widespread misgivings in the media and sections of the community. In October 1975, the Opposition parties announced their intention of voting against two appropriation bills, the passage of which was essential for funding the ordinary annual services of the government. The Opposition did the same again to two similar bills a fortnight later, by which time the Whitlam Government was on the threshold of financial crisis. Whitlam alerted the Governor-General and advised that a half Senate election, which was in the [page 119] offing in any event, should be called. Sir John Kerr, however, was convinced that this would not resolve the crisis. Instead, the Governor-General took the unprecedented step of invoking the reserve powers of the Crown, and dismissed

the Prime Minister and his government. Kerr appointed the Leader of the Opposition, Malcolm Fraser, to be Prime Minister after receiving Fraser’s assurance that he would secure the passage of the appropriation bills and then advise the Governor-General to dissolve both Houses. This is indeed what happened. In the ensuing elections, Labor suffered a decisive defeat and lost seats in both Houses. An extraordinary feature of the whole process was that for a double dissolution to occur, Prime Minister Fraser had to rely on a whole series of bills which had been passed by the House of Representatives but rejected by the Coalition parties in the Senate. It would have been beyond the comprehension of the founders that any government could initiate a double dissolution by relying on proposed laws passed by the House of Representatives which its own members had deliberately prevented from becoming laws when in opposition. However, the Governor-General had to apply s 57 as it read.5

Fifth and sixth double dissolutions In 1980 the Fraser Government was returned to office but it was narrowly outnumbered in the Senate, where a handful of Democrats held the balance of power. In 1981 the Senate twice rejected 13 bills, most of them about sales tax. The fortunes of the government began to decline amid looming economic difficulties and the onset of a widespread drought. With the government approaching the end of its term of office, at the [page 120] request of the Prime Minister, the Governor-General, Sir Ninian Stephen, granted a double dissolution. On the same day, to the astonishment of almost everyone and unknown to the Prime Minister as he approached the GovernorGeneral, Bob Hawke, then at the height of his popularity, displaced Bill Hayden as leader of the parliamentary Labor Party. Fraser was easily beaten at the ensuing general election.6 But Labor did not gain a majority in the Senate.

In 1987 the Senate twice rejected a bill to institute a system of personal identification called the Australia Card, which was mainly intended to help curb tax evasion. At Hawke’s request, Sir Ninian Stephen again granted a double dissolution and the government was subsequently returned to office with a slightly increased majority in the House of Representatives, but not in the Senate where it lost two seats. When Parliament assembled, it turned out that regulations would be needed to give effect to the Australia Card, and these could and would be disallowed when tabled in the Senate under the Acts Interpretation Act 1901 (Cth). At this point the government decided to let the matter rest.7

Seventh double dissolution: 2016 In 2013, the Coalition Government headed by Tony Abbott was elected, but without a majority in the Senate, where it had to rely on the support of at least six other senators (either from a crossbench of minor party or independent senators, or the Greens or Labor) to pass legislation. In 2015, Abbott lost the leadership of the Liberal Party, and Malcolm Turnbull became [page 121] Prime Minister. Speculation about an early election grew; speculation about a double-dissolution election (with the prospect of earning the Turnbull Government a Senate majority if favourable polling continued) increased after changes to voting laws that were intended to reduce the number of independent and minor (or micro) party senators elected in subsequent elections (see Chapter 9). Prime Minister Turnbull sought a double dissolution from GovernorGeneral Sir Peter Cosgrove because of three industrial law bills the Senate had twice rejected or failed to pass: two sought to re-establish the Australian Building and Construction Commission, the third to impose stricter internal management rules for unions. After a lengthy election campaign, the Turnbull

Government was returned with a reduced majority of only two in the House of Representatives, and with an even less favourable position in the Senate. It appeared likely that those bills, if re-presented to the Senate, would again be rejected; and with the new composition of the Senate, there was no prospect of the government being able to pass them at a joint sitting.

Conclusions about s 57 1. For 29 years from 1977 until 2006, no government had the benefit of a Senate majority. The Senate was dominated by parties which together did not have sufficient votes to win government in the House of Representatives. As long as proportional representation remains in its present form it is likely that the government of the day will often face a hostile Senate in which it will suffer repeated defeats on its policy measures. 2. Section 57 may provide an opportunity by which a government approaching the end of its term can use a double dissolution to bring on a general election if it sees a political advantage in doing so. An Opposition in control of the Senate may continue to reject bills in the [page 122] hope that it will force the government to seek a double dissolution if it thinks that it may win office. 3. A government suffering continuous defeat in the Senate may choose to remain in office rather than risk a double dissolution as the Scullin Government did in the early 1930s. In these circumstances, Parliament no longer functions as a full-blown legislature but as a Parliament in which the government does not have the ability to carry out any kind of a mandate. 4. The various stages of resolving a deadlock which s 57 requires — the three months interval between the two bills being presented, the conduct

of an election following dissolution, the summoning of Parliament, a further submission of any disputed bill to the Senate and its rejection, and a subsequent joint sitting — are completely unsuited for responding to a major financial crisis, which requires prompt and effective action. 5. The occasions in which deadlocks arise with s 57 looming in the background would be fewer if the major parties were to agree to Parliament using its powers under s 9 of the Constitution to modify the existing system of proportional representation. The 2016 amendments to the Commonwealth Electoral Act 1989 (Cth) to introduce a form of optional preferential voting for the Senate (see Chapter 9) may have a similar effect in reducing the frequency with which independent or micro-party senators are elected. 6. One measure which the Senate cannot ultimately reject outright with s 57 in mind is a proposed law to amend the Constitution passed by the House of Representatives under s 128 of the Constitution. If the Senate twice does not pass it according to the formula of s 57, which is repeated in s 128, the Governor-General may submit the proposed law to a referendum of voters as provided in that section.8 The [page 123] position is the same for a bill to amend the Constitution introduced and passed in the Senate.9

Reform of s 57? Arguably, the fact that s 57 has only been invoked seven times since Federation indicates that it is not a workable means of resolving deadlocks. In 2003, the Howard Government issued a discussion paper about resolving deadlocks.10 The theme was that although the Senate passed most bills, when it came to legislation involving major policy issues, the government was at the mercy of an Opposition which had failed to gain government but sought to gain something for itself by combination with other non-government senators representing their

own minority interests. The paper put forward for discussion two alternative proposals for constitutional change, either of which could be employed as an alternative to s 57 (which would still remain in the Constitution). The first proposal was that in the event of a deadlock occurring, the issue should be resolved by a joint sitting of the two Houses without resorting to a double dissolution. The second proposal put forth was that the Prime Minister would be able to request the Governor-General to convene a joint sitting following a general election to consider a bill twice blocked by the Senate in the previous Parliament and blocked again in the new Parliament. The Prime Minister took the quite unusual step of establishing a consultative group of three11 to test the public reaction to the discussion paper at public meetings convened in each of the state and territory capital cities. The group reported that all meetings were poorly attended and [page 124] at none was there any inkling of support for either proposal. The group concluded that any referendum on the subject in the foreseeable future would be doomed to failure.12 Interest in the reform of s 57 appears to have subsided.

1.

2. 3.

4. 5.

Section 53, which defines the legislative powers of the two Houses, is expressed in terms of ‘proposed laws’ but the High Court decided in Osborne v Commonwealth (1911) 12 CLR 321 at 336; (1911) 17 ALR 242 at 245 that the interpretation of its provisions was in the hands of the Parliament and not the court. Cormack v Cope (1974) 131 CLR 432; 3 ALR 419. In a subsequent case, the High Court held in Victoria v Commonwealth (1975) 134 CLR 81; 7 ALR 1 that one of the six bills passed at the joint sitting was not a valid law although the Senate had twice rejected it because the required interval of three months had not intervened between the two occasions. The question before the court was the meaning of the expression ‘fails to pass’. The court decided this expression required sufficient time to have passed, which would allow for a reasonable period of deliberation for the Senate to decide whether or not to pass the bill. In Western Australia v Commonwealth (1975) 134 CLR 201; 7 ALR 159 the High Court held that the section did not require a double dissolution to occur without delay. It does not seem possible to obtain a completely impartial explanation of the 1975 imbroglio. G

6. 7.

8.

9.

10. 11. 12.

Williams, S Brennan and A Lynch, Blackshield and Williams Australian Constitutional Law and Theory: Commentary and Materials, 6th ed, Federation Press, Sydney, 2014, 10.15–10.16 provide a reasonably detached account of the events. A rejection of supply by the Senate resulting in the fall of a government that has the confidence of the House of Representatives could be considered to strike at the root of the concept of responsible government. Nevertheless, the founders gave the Senate the power to do it. The question remains whether Mr Fraser would have sought a double dissolution in the knowledge that Labor would be headed by Hawke. There is an unresolved question as to how far a proposed law which gives rise to a double dissolution can subsequently be amended to meet procedural and other formal requirements and yet retain its identity as the original proposed law which could be put to a vote in a joint sitting. The question also arises as between the proposed law which the Senate first declined to pass and the proposed law submitted to it on the second occasion which established deadlock conditions. In 1974, four such bills to alter the Constitution were submitted to referendum at the same time as an election; all four were defeated. See G Souter, Acts of Parliament, Melbourne University Press, Carlton, 1988, p 520. However, the Governor-General will only put a constitutional amendment to the people on the advice of the government of the day. If the House of Representatives has failed to pass the amendment, it is only in unusual circumstances that the government would be likely to advise the Governor-General to proceed to a referendum. Department of the Prime Minister and Cabinet, Resolving Deadlocks: A Discussion Paper on Section 57 of the Australian Constitution, Commonwealth of Australia, Canberra, 2003. The group consisted of a former Liberal minister as chairman (Neil Brown), a former Labor Attorney-General (Michael Lavarch) and a former Commonwealth Ombudsman (Jack Richardson). Consultative Group on Constitutional Change, Resolving Deadlocks: The Public Response: Report of the Consultative Group on Constitutional Change, Department of the Prime Minister and Cabinet, Canberra, 2004. The group also reported that any constitutional change of a complicated provision such as s 57 would need to be preceded by a widespread public education program. The group also received 293 written submissions many of which expressed less one-sided views than the individual orators at the public meetings. It was repeatedly said at public meetings that electors frequently voted differently for the Senate than the House of Representatives because it would put some brake on the government and this was in the interests of the community at large.

[page 125]

Part Three The Growth of a Nation

[page 127]

Chapter 12

Historical Factors in a Century of Federalism So far, this book has described the early growth of central power in Australia, beginning in a time of dependence on the mother country as the principal market for Australian goods, a source of protection from external aggression and the representative of Australian interests abroad. Chapter 13 describes the emergence of Australia as a nation state in its own right, capable of making its own way domestically and externally without dependence upon Britain but still recognising the British Queen as the Queen of Australia and a formal component of the Australian Parliament. Chapters 8–11 have explored the role of the federal parliamentary system as the cornerstone of Australian democracy. The central factor has been the dominance of party politics in both Houses, closely matched by ever expanding exercises of executive power and influence through the Cabinet system of government, leaving the House of Representatives little choice but to comply with the legislative wishes of the party in government. The Senate is left to its own devices and mainly through its committee system has the capacity to make a meaningful input into the legislative program. The extent of that input usually depends upon where the balance of power lies between the parties represented in the Senate. Many other factors bear upon the development of the federal system and the form it has assumed in the second century of federation. This chapter will present some of them. Most are interrelated. [page 128]

The people In 1901 the population of Australia was 3.8 million, not counting Aboriginal and Torres Strait Islander peoples. It had doubled over the previous 25 years. Two-thirds lived in New South Wales and Victoria, and in all states a majority of residents lived outside their capital cities.1 At the outbreak of World War I in 1914, the population was just on 5 million. By 1926, it had increased to 6.1 million. After World War II, it reached 7.4 million in 1947. Ethnically, the population was overwhelmingly of British ancestry. After World War II, successive governments made a concerted effort to encourage the influx of migrants as a national priority, and the population grew fairly rapidly: 1965

11.4 million

1985

15.8 million

1995

18.1 million

2004

20.1 million

2015 23.9 million. At the end of 2015, permanent residents were distributed across the land as follows: State or territory New South Wales

Million 7.7

Capital city Sydney

Victoria

6.0

Melbourne

Queensland

4.8

Brisbane

Western Australia

2.6

Perth

South Australia

1.7

Adelaide

Tasmania

0.5

Hobart [page 129]

State or territory Australian Capital Territory

Million Capital city 0.4 Canberra

Northern Territory 0.2 Darwin. For many years after World War II, the official migration programs encouraged English-speaking migrants, coming principally from the United Kingdom but also New Zealand, South Africa, Canada and the United States. In 1947, about 80 per cent of migrants came from these countries. From then on, non-English speakers came in considerable numbers from Europe and the Middle East, but the White Australia Policy continued to exclude migrants from elsewhere. The census of 1991 showed that 23 per cent of Australia’s population were born overseas and that 96 per cent had come from English-speaking and European countries. By 1995, when the White Australia Policy was a thing of the past, the proportion of English-speaking migrants had fallen from 80 per cent in 1947 to 40 per cent. Of other countries, the foremost sources for migrants were Italy, by far, followed by Yugoslavia and Greece. There was also a high level of migration from Vietnam following the cessation of hostilities in which Australia had participated. Migrants also began to arrive increasingly from China, the Philippines, Malaysia and Hong Kong, but the numbers were not large. In 2004–05, there were 431,000 permanent and long-term arrivals from overseas.2 Permanent arrivals from overseas countries accounted for 26 per cent of the population. Migration from Asian countries had rapidly increased. Six Asian countries were in the top 10 of permanent arrivals which were as follows:3 Country of birth United Kingdom

% of total arrivals 14.8

New Zealand

14.1 [page 130]

Country of birth

% of total arrivals

China

9.0

India

7.6

Sudan

4.6

South Africa

3.7

Philippines

3.4

Singapore

2.5

Sri Lanka

1.9

Vietnam 1.8. The changing pattern of migration to Australia, and an emerging consciousness of the importance of Aboriginal and Torres Strait Islander peoples (whose experience of constitutional government in Australia is explored in Chapter 15), has led to Australia’s self-identification as a multicultural society. Although the Constitution has remained unchanged, the institutions it established (Parliament, executive, judiciary) have — within the scope of their competence set out in the Constitution — begun the task of adapting the Australian system of government to a multicultural future, although undoubtedly much work remains to be done.

World wars World War I The federation was only 14 years old when the Great War broke out in Europe and put the Commonwealth’s defence power to the test. Out of a population of a mere 5 million, Australia dispatched a volunteer military force of over 415,000 to do battle in Europe and the Middle East in support of Britain. Australian deaths on active service during the four years of war totalled a heavy 60,000. Australia’s participation was an intense expression of loyalty to the mother country. It was also pursuant to the conviction that Australia, like the colonies before Federation, relied on British power for protection from overseas aggression. [page 131]

In 1916, the wartime Prime Minister Billy Hughes became concerned about a fall in recruitment to Australian forces fighting overseas and after visiting Britain he instituted a plebiscite of federal voters to approve the conscription of men for compulsory overseas service. It was narrowly defeated. Undeterred, in the following year, he held a further plebiscite which was again defeated, this time by a greater margin than before. By this time, the Australian forces had suffered heavy casualties in France to add to the losses at Gallipoli. As a signatory to the Treaty of Versailles, albeit under the cloak of the United Kingdom, Australia gained an international presence of sorts and recognition that within the British Empire it was more than a collection of six separate colonies. But the war was not the birth of a nation in the international sense. Within Australia there was a great deal of concern about the heavy military casualties, but loyalty to Britain was never in doubt and the war served as a unifying factor involving virtually the entire population. The war and its consequences promoted the role of the Commonwealth in the federation vis-avis the states. World War II In 1939, Australia was again called upon as a member country of the British Empire to participate in a European war, and it again did so with full community backing. Most Australians respected, if not admired, Britain for its institutions, its way of life and its preparedness to go out on a limb in the defence of Western-style democracy against the onslaught of dictatorships. In a country populated by people of British origin there remained a feeling of indebtedness to the mother country. Britain was also by far the largest market for Australian products. Some 500,000 members of the Australian Defence Force served overseas. Deaths were around 40,000. As the European conflict extended to countries outside Europe, a situation of total war developed and the entire Australian community was placed on [page 132]

a wartime footing. Manpower and economic controls entered almost all phases of civilian life. Food, clothing and petrol rationing became part of day-to-day living. As in World War I, only volunteer forces served overseas except for conscripts who served in New Guinea. However, in the face of Japanese aggression the Defence Act 1903 (Cth) was amended in 1943 to allow the deployment of the Citizen Military Force in a wider south-west Pacific zone. At the end of the war, Australia was a full participant in treaty negotiations and was accepted internationally as a nation state in its own right. Its international status gained further recognition when Dr Herbert Evatt, a member of the wartime Labor Government, became the third president of the United Nations General Assembly in 1948. A repercussion of World War II was that Australia would no longer be automatically at war as a British ally in any future conflict. In subsequent conflicts in Korea, Vietnam, Iraq and Afghanistan, to which Australia has chosen to contribute armed forces, it has done so in a voluntary partnership with the United Nations, our ANZUS partner the United States, Britain and other nations. World War II greatly changed the international panorama. Major readjustments of worldwide alliances and national interests inevitably involved Australia’s Commonwealth Government and emphasised the dominance of the Commonwealth at the expense of the standing of the states. British, French and Dutch colonial empires soon began to disintegrate. India became an independent state and from former colonies such as the Dutch East Indies and French Indo-China, independent states such as Indonesia and Vietnam emerged. The Commonwealth Parliament carried major responsibility for the transition from war to peace, for example, in the repatriation of the service personnel and the unwinding of wartime controls. To enable a smooth transition, the wartime Labor Government sought an increase in federal constitutional powers. Towards the end of 1942 a convention of Commonwealth and state parliamentarians agreed to refer specific powers

[page 133] to the Commonwealth for five years after the end of the war, but four states subsequently reneged. In 1944, the Labor Government, having been restored to office, sought 14 additional powers by a referendum under s 128 of the Constitution, but voting fell well short of the majorities required for amendment. The manner in which the defence power has permitted the Commonwealth to control all aspects of Australian life during wartime is examined in more detail in Chapter 19; the way in which financial dominance by the Commonwealth has resulted from the uniform income taxation first introduced as a war measure in 1942 is addressed in Chapter 17. The Commonwealth’s powers have met the test posed by Australia’s war experiences.

Development of a national economy The founders had been most anxious to abolish the barriers to interstate trade and commerce. They included s 92 in the Constitution to guarantee freedom of trade, commerce and intercourse between the states, and gave the Commonwealth an exclusive power to levy duties of customs and excise. These provisions aimed at establishing a common market within Australia. After Federation, overseas trade, mainly with Britain and in primary products, continued as before for the time being, but it was plain to the founders that it was better that Australia should speak with a single voice in international trade through the Commonwealth. In 1932, the Imperial Economic Conference in Ottawa led to a trade agreement between Britain and Empire countries which established a system of imperial preference in international trade. The agreement accorded Australia a guaranteed market for its primary products in Britain. In return, Britain retained preferential treatment for its manufactured goods. The conference itself illustrated that the idea that the Australian economy could be assessed in terms of six separate economies was completely obsolete. At the same time, the Ottawa

agreement showed how much Australia’s economy depended on Britain. Before World War II, Commonwealth activity in the international [page 134] marketplace mainly took the form of marketing schemes for primary products, which continued to constitute the bulk of the country’s export trade.4 During both world wars, the British Government bought all the available Australian wool clip, but between the wars Australia looked for greater economic freedom from Britain and sought other markets for its goods. In 1918, a Commonwealth Board of Trade was set up to advise the government. In the same year, a trade commission was appointed to represent Australia in the USA. Similar appointments followed in other countries and, by 1939, trade agreements existed with several European countries as well as with the USA and Japan. On the economic front, World War II resulted in substantial increases in heavy engineering, including manufacture of munitions, ships, aircraft and chemicals. Local food, textile, clothing and footwear industries also received an impetus from increased demand brought on by the war needs of Australia and its allies which sustained them for several years to come. Midway in the 20th century, the Constitution Review Committee of the Commonwealth Parliament noted: The Australian economy is becoming increasingly industrialized and the process has been accompanied by an intensive use of various Commonwealth powers. For example, [notwithstanding the limited scope of the Commonwealth power to deal with industrial disputes under para (xxxv) of s 51] … Commonwealth awards and determinations now cover directly almost one-half of the total number of male employees in Australia and Federal determination of industrial conditions has pronounced effects on State regulation of wages and other conditions of employment.5

The emergence of an integrated national economy was attributable to many factors, including advances in transport and communication, [page 135]

population growth, the development of overseas markets and the stimulus to industrial development resulting from the world wars. The committee concluded that there was now ‘a most complex fabric of trade and business in which there is an interdependence between the many activities constituting the whole economy and between these activities and the climate of the economy as a whole’.6 These tremendous structural changes to Australian commerce and industry significantly reduced the capacity of the states to take effective action. Since 1959, the states have largely acquiesced in the Commonwealth’s assertion of its dominant role in the management of the economy. Consequently, the Commonwealth has proceeded apace in the discharge of its responsibilities — all in the absence of an embracing constitutional power to deal with economic matters.

1.

2. 3. 4.

5.

6.

The populations of the capitals were: Melbourne 502,000 Sydney 497,000 Adelaide 162,000 Brisbane 121,000 Perth 70,000 Hobart 36,000. Permanent and long-term departures in the same years were 307,000 so that there was a net overseas migration to Australia of 124,000. No European country (other than the United Kingdom) was in the top 20, but USA arrivals were 1.3 per cent of the total intake. Most Australian primary products, such as dairy products, wheat, meat and dried fruits, were subject to marketing schemes. A notable exception was wool, which for most years was sold on the open market and was Australia’s chief export until 1970. For a short time around 1903 gold production displaced wool as the major export. House of Representatives Joint Standing Committee on Constitutional Review, Report from the Joint Committee on Constitutional Review, Parliament of Australia, Canberra, 1959, p 12. As noted previously, Jack Richardson served as the legal secretary for this inquiry. House of Representatives Joint Standing Committee on Constitutional Review, note 5 above, p 137.

[page 137]

Chapter 13

Colony — Dominion — Nation In 1900, so far as they were known overseas, Australia and its component states lacked legal personality. As part of an empire of matchless size, Australia was subject to the complete hegemony of the British Government in Westminster in relation to any participation in affairs beyond Australian borders. Strikingly, some 48 later, in 1948, Dr Evatt, the Australian Minister for External Affairs, became the third president of the General Assembly of the United Nations, which had been created in San Francisco in 1945.

The Great War Australia, Canada, South Africa, India and New Zealand were among the British colonies that provided significant civil and military aid to Britain and the Allied cause during 1914–18 in World War I. After the conflict ended, Australia and other formerly self-governing dominions were accorded representation at the peace conference in Versailles in 1918. They were signatories to the Peace Treaty in their own right.1 These British countries also became members of the League of Nations and Australia became responsible for a mandate under the League over the territory of New Guinea, a former German colony. [page 138]

Balfour Report 1926 Participation in World War I gave Australia and the other participating major colonies a much greater sense of national identity. This, coupled with Britain’s preoccupation with home affairs in the wake of a war of tremendous cost, laid

the foundation for a demand for dominion status. Canada and South Africa, as well as the Irish Free State (Eire, not a participant in the war) were the main players. Australia was not among them. In 1926, a regular Imperial Conference thrashed out the question and the Balfour Report resulted. The report referred to the group of self-governing communities composed of Great Britain and the dominions. It declared that they were communities within the British Empire, equal in status, in no way subordinate to one another in any aspect of their domestic or external affairs, though united by a common allegiance to the Crown, and freely associated as members of the British Commonwealth of Nations. It was also declared that the Governor-General of a dominion was no longer a representative or agent of the British Government and that the British Government would not advise the King on dominion matters contrary to views of the dominion government. Another resolution declared that a dominion government had full power to enter into treaties, appoint ambassadors and engage in other external activities in its own right. In matters involving a dominion, the King would act on the advice of the dominion government. Important though it was in the recognition of existing or desirable conventional practices affecting the relationships between Australia and the other dominions and the Imperial Government, the Balfour Report did not have any legal standing. Canada, South Africa and the Irish Free State continued to press for greater commitment from Britain.

Statute of Westminster 1931 Each dominion remained subject to the Colonial Laws Validity Act 1865 of the Imperial Parliament. The effect of this Act was to invalidate any [page 139] dominion laws that were contrary to those Acts of the Imperial Parliament which were expressed to extend to operate in its territory. There were also some

lingering doubts as to a dominion’s ability to make laws with an extra-territorial operation. The Parliament at Westminster still possessed its sovereign rights to pass Acts applicable to the dominions without any necessity to consult the dominions. In practice it did no such thing, but its imperial power was seen in the dominions as not being consonant with independent dominion status. In 1931 the Imperial Parliament passed the Statute of Westminster. A preamble recited that Canada, Australia, New Zealand, South Africa, the Irish Free State and Newfoundland had requested and consented to it. Section 4 of the Act gave effect to what had become conventional practice by stating that no further Act of the Parliament of the United Kingdom should apply to a dominion except with its request and consent. Other sections rendered the Colonial Laws Validity Act inapplicable to any dominion legislation passed thereafter (s 2) and declared that each dominion had full power to make extraterritorial laws (s 3). Professor Zines observed that: The only relevant formal legal changes to the powers of the Dominions were made by the Statute of Westminster. That Statute achieved one important result. It enabled the Dominions to override imperial law. For the rest it achieved little that was not merely symbolic … For the most part … it was conventions and practices, embodied partly in Conference resolutions, and international recognition rather than the creation of judicially enforceable legal rules, that created the sovereign status in the world of Canada, Australia and New Zealand.2

The Statute came into immediate effect in Canada but the principal operative provisions were expressed not to apply to Australia until adopted by the Commonwealth Parliament. [page 140] The role of the states in the conference discussions preceding the Statute was quite negative. They were distrustful of the use which the Commonwealth, which was in competition with them, could make of s 4, by requesting imperial legislation in relation to state interests. In this connection, s 9 of the Statute, applicable only to Australia, gave a concession to the states by providing that the Statute did not authorise the Commonwealth Parliament to make laws on any

matter of state authority which was not within the powers of the Commonwealth. It was not until World War II was well under way that the Commonwealth Parliament passed the Statute of Westminster Adoption Act 1942 (Cth). That Act recited that there were difficulties that hampered the successful prosecution of the war as the reason for the legislation. The adoption was expressed to take effect from the outbreak of war with Germany on 3 September 1939.

World War II In 1939 Prime Minister Robert Menzies informed Parliament and the community that it was his melancholy duty to announce that Great Britain had declared war on Germany and that as a result Australia was automatically at war. The Australian Government made a similar assumption after Italy declared war against Great Britain on 10 June 1940. Menzies’ statement implied that Australia was inexorably tied by the prerogative power of the Crown in England to declare war irrespective of Australia’s wishes. His view was out of line with the reasoning responsible for the Statute of Westminster. It also disregarded s 61 of the Constitution, which vests the executive power of the Commonwealth in the Queen but makes it exercisable by the Governor-General as her representative. Canada and South Africa made separate declarations of war and in 1941 Australia made a declaration of war against Japan without any involvement of the King in the United Kingdom. Australia’s membership of the United Nations [page 141] in 1945 dispelled any doubts about the recognition of Australia as an independent sovereign nation.3

The judicial system

From the very beginning of the Commonwealth, the sense of ever greater independence from Britain motivated the Commonwealth Parliament to gradually remove all remaining rights of appeal to the Privy Council in London. Section 74 of the Constitution prevents appeals from the High Court on many important constitutional questions without a certificate from that court. The remaining avenues of appeal to the Privy Council were first limited by the Judiciary Act 1903 (Cth),4 terminated in most matters by two separate Acts passed in 19685 and 1975,6 and finally exhausted by the Australia Act 1986 (Cth).7 A second consequence of Australia being recognised as an independent nation state was to encourage the High Court to interpret Commonwealth legislative and executive powers free from earlier inhibitions associated with the colonial era and the intention of the framers not to surrender any more powers to the Commonwealth than was necessary to achieve federation. Observations to this effect appear in the Seas and Submerged Lands case in 1975, in which the High Court held, to the chagrin of the states, that [page 142] the territorial sea surrounding the Australian coastline was exclusively a Commonwealth sea and did not form part of the territory of any state.8

Royal style and titles In 1900 the Constitution Act recited an agreement of the people of New South Wales, Victoria, South Australia, Queensland and Tasmania to ‘unite in one indivisible Federal Commonwealth under the crown of the United Kingdom of Great Britain and Ireland’. Powers and functions given to the Queen and her Governor-General permeate the Constitution. As a result of the dissolution of the British Empire, the Queen has become the recognised sovereign in several separate and independent realms as well as head of the Commonwealth. In 1952 a conference of Commonwealth countries

agreed that each should adopt a form of royal title suitable to its own circumstances. The Royal Style and Titles Act 1953 (Cth) as amended in 1973 now describes the Queen, for use in situations requiring formality, as ‘Elizabeth the Second, by the Grace of God Queen of Australia and Her other Realms and Territories, Head of the Commonwealth’.

Citizenship Separate Australian citizenship was established by the Australian Citizenship Act 1948 (Cth). Passports issued in the 1960s were still entitled ‘British Passport’. Ten years later, passports acknowledged some change by describing the holder as an ’Australian citizen and a British subject’. All reference to ‘British subject’ has since disappeared and current passports simply read ‘Australia’. As Gibbs CJ observed in Pochi v MacPhee, ‘the allegiance which [page 143] Australians owe to Her Majesty is owed not as British subjects but as subjects of the Queen of Australia’.9

The Australia Acts and national independence The states were not beneficiaries of the Statute of Westminster and their constitutional relationships with the United Kingdom Government remained much as they were in colonial times. They fell further behind as the Commonwealth gained advancements for itself in similar aspects of government; for example, state courts exercising state jurisdiction remained subject to appeals to the Privy Council. The states also remained subject to the Colonial Laws Validity Act 1865 (UK), so that certain Imperial Acts continued to apply and it was beyond the competence of the states to change them. On the conventional side, the monarch in relation to state matters acted on the advice of the United Kingdom ministers and not the state governments, for example, in the appointment of Governors.

After conferences between the Prime Minister and state premiers in 1982 and 1984 the states were of one mind that imperial fetters on their competence should be removed. In 1985 each passed an Australia Act (Request) Act, requesting the Commonwealth to pass an Australia Act in order to achieve greater autonomy from Britain. They did so in reliance on s 51(xxxviii) of the Constitution, which allows the Commonwealth Parliament to make laws at the request or concurrence of all the states concerned on any power which as at Federation could be exercised only by the Parliament of the United Kingdom or the Federal Council of Australasia. This occasion was its first use. The Federal Parliament passed the Australia Act 1986 (Cth) dealing comprehensively with the situation. The long title of the Act reads: ‘An Act to bring constitutional arrangements affecting the Commonwealth and the states into conformity with the status of the Commonwealth of Australia [page 144] as a sovereign, independent and federal nation.’ The main provisions are as follows: •

Section 1 — terminates the power of the British Parliament to legislate for Australia.10

•

Section 2 — gives state legislatures power to make laws for the peace, order and good government of the state that have an extra-territorial operation11 but not a power to engage in relations with overseas countries which they did not previously have.12

•

Section 7 — changes the powers and functions of Her Majesty and Governors in each state by creating greater state involvement. It declares that the Governor is the Queen’s representative in a state and that her powers and functions will only be exercised by the Governor, except the Queen’s powers to appoint and terminate the appointment of the Governor or the power which she may exercise when she is personally present in a state.

•

Section 7 — also states significantly that the advice which Her Majesty receives in relation to state matters shall be tendered only by the premier of the state.

•

Section 8 — removes the power of Her Majesty in state constitutions to disallow any Act of a state Parliament which has been assented to by the Governor.

•

Section 9 — removes all vestiges of British control over the enactment of Australian state legislation.13 [page 145]

•

Section 10 — terminates all responsibility of the United Kingdom Government in relation to state matters.

•

Section 11 — abolishes appeals to the Privy Council in respect of any decision of an Australian court. The abolition is complete except for one theoretical exception.14

•

Section 15 — provides that any amendment of the Australia Act or the Statute of Westminster as amended by the Australia Act may be replaced or amended by the Commonwealth Parliament but only with the request or concurrence of all state Parliaments.15 For greater caution and to remove any doubts about the Commonwealth’s reliance on the reference of power under s 51(xxxviii), the Imperial Parliament also passed an Australia Act in 1986 in substantially identical terms.16 In 1988 the Constitutional Commission made the following comment: Historically, as the enacting clause of the Commonwealth of Australia Constitution 1900 states, the Constitution derived its authority from the principle of subservience to the British Parliament. As that Parliament no longer has any authority in Australia, the legal basis of the Constitution no longer rests on any paramount rule of obedience to that institution. The legal theory that sustains the Constitution today is its acceptance by the Australian people as their framework of government. The Federal

[page 146]

Parliament and Government are, themselves, created by the Constitution. It is our fundamental law.17

In 1900 the British Parliament was accepted in legal theory as being a sovereign Parliament of unlimited legislative power. A corollary was that it could also amend or repeal any existing Act. The doctrine of parliamentary sovereignty owes much to Professor A V Dicey in his renowned treatise, Introduction to the Study of the Law of the Constitution, first written in 1885. The doctrine left open for argument the question as to whether a sovereign Parliament could, by an Act transferring unshackled legislative power to a country such as Australia, to that extent permanently narrow the scope of the sovereign power; in other words, whether sovereignty once transferred cannot be recaptured. The practical answer is that the surrender by the British Parliament of power to legislate for Australia, irrespective of whatever view an English court might take, would be regarded by an Australian court as amounting to a permanent transfer of sovereignty. This may be no more than saying that ultimately sovereignty depends more on the facts than on theory, and in this light the Constitution is undoubtedly a fundamental law. If sovereignty has to reside anywhere, the search can go no further than the Australian people or, at least, those who are qualified to vote in the elections for the Commonwealth Parliament. In 1935, Sir Owen Dixon was able to say: The Constitution … is not a supreme law purporting to obtain its force from the direct expression of a people’s inherent authority to constitute a government. It is a statute of the British Parliament ... we treat our organs of government simply as institutions established by law exercising authorities belonging to them by law. American doctrine treats them as agents for the people who are the source of power and their powers as authorities committed to them by a principal.18

[page 147] As Professor Cheryl Saunders has observed: The sovereignty of the British parliament in the colonies, on which the Constitution depended in 1901, itself was a common law rule. Popular sovereignty on which the Constitution now is said to depend, is a concept developed in a common law context although for historical reasons its legal significance is considerably less precise.19

There has been some speculation, mainly in academic circles, as to when it could be said precisely that Australia had acquired complete independence. On one view it was in 1931 when the Statute of Westminster was passed; or in 1942 when the Statute of Westminster Adoption Act 1942 (Cth) was passed; or 1939, when that Act was expressed to have come into force; on another view it was on the passing of the Australia Acts.20 Justice Murphy put the date at 1 January 1901.21 Constitutionally speaking, the matter is not of any moment, but it could arise as a question when interpreting various statutes.22 To add grist to the mill, the High Court held in Sue v Hill23 that for the purpose of s 44(i) of the Constitution, the United Kingdom was now a foreign power. Under the subsection, owing allegiance to a foreign power made a person incapable of being a member of the Senate or the House of Representatives. Heather Hill, who was declared elected to the Senate to represent Queensland, was subsequently held to have been ineligible because she was at the time also a United Kingdom citizen. Dual citizenship has its problems and this is one of them. And so, from the close of the first century of federation, the Australia Act has brought to an end legal ties to the British Government. Symbolic ties will remain as long as Australia has an English monarch as head of state. [page 148]

Role of the monarch Apart from appointing the Governor-General (and Administrators),24 and the state Governors, the Queen no longer participates in the government of Australia. Powers which the Constitution vests in the monarch are exercised only on the advice of the Prime Minister and his or her ministers. It is not so widely known that the Commonwealth Parliament consists of the Queen, the Senate and the House of Representatives. The Queen’s role is specified in ss 58 and 59 of the Constitution as being a power to assent or disallow proposed laws of the Parliament. As far as is known publicly, no British monarch has sought to refuse assent or to disallow any Commonwealth law.25

Under British law, the Crown possesses so-called prerogative powers, most of which can only be exercised with the advice of its ministers, for example, in making a declaration of war. The Queen can exercise a handful of reserve powers without, or contrary to, ministerial advice. The Queen is the Queen of Australia and so far these personal prerogatives have been treated as applicable to Australia and exercisable by the Governor-General as the Queen’s representative. The reserve powers have been identified as follows: •

appointment of the Prime Minister;

•

dismissal of the Prime Minister;

•

dissolution of the House of Representatives; and

• a double dissolution under s 57 of the Constitution.26 The exercise of these reserve powers has been largely regulated by convention in Australia, with the Governor-General acting in accordance [page 149] with the advice of the Prime Minister, but in 1975 Governor-General Sir John Kerr refused to accept Prime Minister Whitlam’s advice and dismissed him and his government after they had not succeeded in obtaining the passage of their appropriation bills through the Senate (see Chapter 30). Many powers which might have been exercised by the Queen are given instead by the Constitution to the Governor-General or the Governor-General acting on the advice of the Federal Executive Council, for example, s 64 empowering the Governor-General to appoint ministers of state to administer such departments of state as the Governor-General in Council establishes. Only the Governor-General can exercise such powers, the powers are exercised in his or her own right and not as delegate of the Queen. In the event of a visit to Australia, the Queen may at the time personally assent to bills passed by the Parliament and she may preside at meetings of the Executive Council. Otherwise, her activities are personal and unofficial, and entirely at her discretion as the Queen of Australia. She is more likely to be enthusiastically

greeted as the Queen of Australia by her loyal subjects, the citizens of Australia, than as the monarch of a foreign power. In law, she is now both.

1. 2. 3. 4.

5. 6. 7. 8.

9. 10.

11.

12. 13. 14.

Prime Minister Billy Hughes attended and signed on behalf of Australia. The colonial signatories were indented consecutively after the United Kingdom signature. L Zines, Constitutional Change in the Commonwealth, Cambridge University Press, Cambridge, 1991, p 5. The fact that Australia is a constitutional monarchy with a British Queen as head of state has not mattered, although it has occasionally been the source of some confusion internationally. Judiciary Act 1903 (Cth) s 39(2)(a) precluded appeals from state courts to the Privy Council in matters involving federal jurisdiction. Further amendments to the Judiciary Act in 1907 inserted ss 38A and 40A which prevented state courts from examining those important constitutional questions which s 74 of the Constitution preserves as the domain of the High Court, so as to prevent appeals to the Privy Council on such matters from state courts. Privy Council (Limitation of Appeals) Act 1968 (Cth) ss 3, 4 abolished appeals from the High Court in federal matters, and all appeals from federal and territory courts. Privy Council (Appeals from the High Court) Act 1975 (Cth) abolished appeals from the High Court in state matters. Australia Act 1986 (Cth) s 11 abolished appeals from state courts on state matters. New South Wales v Commonwealth (1975) 135 CLR 337 especially at 373; 8 ALR 1 especially at 16 per Barwick CJ (Seas and Submerged Lands case). The result in this case was later modified after an agreement between the Commonwealth and the states: see Chapter 24. See also Commonwealth v Tasmania ( Tasmanian Dam case) (1983) 158 CLR 1; 46 ALR 625 in which the High Court held that the Commonwealth could in the exercise of its external affairs power prohibit the building of the Franklin Dam contrary to the state’s wish. In this case Deane J referred to several cases containing statements that the Commonwealth Parliament is vested with certain powers inherent in its existence or in the fact of Australian nationhood and international personality. His Honour’s view would most likely be upheld in any future case. (1982) 151 CLR 101 at 109; 43 ALR 261 at 266. Section 4 and related provisions of the Statute of Westminster were repealed by Australia Act 1986 (Cth) s 12. Section 4 stated that no Act of the United Kingdom Parliament would apply to Australia unless it expressly declared in the Act that Australia had requested and consented to its enactment. The empowering formula in s 2 operates according to its language irrespective of the formulae to be found in state constitutions, for example, s 16 of the Constitution Act 1975 (Vic) states that Parliament may make laws ‘in and for Victoria in all cases whatsoever’. For example, in relation to the United Nations the qualification ensures that Australia speaks with one voice through the Commonwealth. Similar powers to those mentioned in ss 8 and 9 still remain in the Commonwealth Constitution. See ss 58, 59 and 60. The exception exists through a constitutional quirk. Under s 74 of the Constitution it is legally possible for an appeal to lie to the Privy Council from decisions of the High Court on most

15. 16.

17. 18. 19.

20.

21. 22. 23. 24. 25.

26.

constitutional questions if the High Court grants a certificate. The constitutional quirk is that s 74 assumes the High Court has jurisdiction to hear cases involving the Constitution and its interpretations, yet that power was not vested in the court by the Constitution but by an Act of the Commonwealth Parliament under s 76. The High Court granted such a certificate in Colonial Sugar Refining Co v Commonwealth (1912) 15 CLR 182; 18 ALR 556, but has not granted one since. In Kirmani v Captain Cook Cruises Pty Ltd (1985) 159 CLR 461; 58 ALR 108 the High Court formally announced it would not issue a certificate under s 74 again, making the section in effect now a dead letter. The same result could also be achieved by an amendment made in accordance with s 128 of the Constitution: Australia Act 1986 (Cth) s 15(3). It did so pursuant to a request made and consent given in accordance with the Statute of Westminster by the Parliament and Governor-General of the Commonwealth in the Australia (Request and Consent) Act 1985 (Cth) and with the further concurrence of all state Parliaments pursuant to their Australia Acts (Request) Acts of 1985. Constitutional Commission, Final Report of the Constitutional Commission 1988, Australian Government Publishing Service, Canberra, 1988, p 107. O Dixon, ‘The Law and the Constitution’ in O Dixon, Jesting Pilate and Other Papers and Addresses (collected by Judge Woinarski), Law Book Company, Melbourne, 1965, pp 38–40. C Saunders, ‘Future Prospects of the Australian Constitution’ in R French, G Lindell and C Saunders (eds), Reflections on the Australian Constitution, Federation Press, Sydney, 2003, p 231. Professor Saunders also quotes the observations of Sir Owen Dixon quoted above. See G Lindell, ‘Further Reflections on the Date of the Acquisition of Australia’s Independence’ in R French, G Lindell and C Saunders (eds), Reflections on the Australian Constitution, note 19 above, pp 53–5. Kirmani v Captain Cook Cruises Pty Ltd (No 1) (1985) 159 CLR 351 at 383; 58 ALR 29 at 48. Lindell, note 20 above, pp 55–6. (1999) 199 CLR 462; 163 ALR 648. Constitution ss 2, 4. Under s 58 the Governor-General may declare that he or she withholds assent to a bill or reserves it for the Queen’s pleasure. Section 59 states that the Queen may disallow (within one year) any law assented to on her behalf by the Governor-General. These powers could only be exercised on the advice of the Queen’s Australian ministers. The Constitutional Commission recommended the replacement of s 58, and repeal of ss 59 and 60: Commonwealth of Australia, Final Report of the Constitutional Commission, Australian Government Publishing Service, Canberra, 1988, pp 82–3. See, for example, Commonwealth of Australia, An Australian Republic — The Options: The Report of the Republic Advisory Committee, vol I, Australian Government Printer, Canberra, 1991, p 88. See Chapter 29.

[page 151]

Chapter 14

Interpreting the Constitution Although the High Court’s jurisdiction over constitutional matters partly depends on an Act of Parliament — the Judiciary Act 1903 (Cth) — the founders’ clear intention was that the Constitution should be interpreted by a process of judicial review in which the High Court, and not the Privy Council, should be the final arbiter.1 For the most part, a specific constitutional power has to be found to sustain the validity of any Commonwealth law, otherwise it will be held to be ultra vires and of no effect. This follows because the residual powers of government remain with the states and not the Commonwealth. In a challenge to the validity of legislation, the logical first question is to ascertain the meaning which the High Court has given or will give to a relevant power. For example, in the case of the trade and commerce power (s 51(i)), the High Court has held that the Commonwealth is not restricted to the regulation of interstate and overseas trade and commerce but it may engage in trade itself directly or through a statutory corporation which it controls. The second question is whether a law falls within the limits of the power so described. This will cause the court to examine its content in order to ascertain whether it has a sufficient connection with the particular power source on which it relies for its validity. Most constitutional challenges call for a decision on both questions. Most of the Commonwealth’s legislative powers are set out in s 51. After more than a century of judicial interpretation, many laws made under [page 152] these powers have engaged the attention of the court. The most important of

these include trade and commerce s 51(i), taxation (ii), defence (vi), corporations (xx), immigration (xxvii), external affairs (xxix) and industrial disputes (xxxv). A handful of powers have received only passing attention or none at all, because their subject matter is clear and the exercise of them seldom gives rise to political controversy. Examples include the power to make laws with respect to lighthouses (vii) and census and statistics (xi). In some instances, the content of a power has been absorbed by a wider power, for example, the power over external affairs (xxix) embraces the relations of the Commonwealth with the islands of the Pacific (xxx).

Nature of Commonwealth legislative powers Most of the Federal Parliament’s powers, including those set out in s 51, are not expressed to be exclusive to it, but are concurrent with the general legislative powers of the states. This means that conflicts may arise where both Commonwealth and state laws operate in the same area but with different results. Possible dilemmas are resolved by s 109, which provides that where there is an inconsistency between a Commonwealth law and a state law, the Commonwealth prevails and the state law is invalid to the extent of the inconsistency. This process is discussed in Chapter 27. Nevertheless, the founders made certain that a few federal legislative powers were exclusive to the Commonwealth. Most notably, the states are prohibited from imposing duties of customs and excise (s 90).2 The law reports abound with cases in which the states have challenged Commonwealth laws, but there are also occasions when the states have been brought before the High Court. For example, there have been several challenges to state taxation laws on the ground they have imposed a duty of excise.3 Most of the many cases about the [page 153] role of s 92, which provides for freedom of trade, have also concerned state laws.4

Although the powers contained in s 51 are not expressed to be exclusive to the Commonwealth, some have been held by their nature in effect to be exclusive. One example of this is some aspects of the power in s 51(vi) to make laws with respect to the naval and military defence of the Commonwealth: the only express restraint on the states in this area is s 114 which prohibits maintaining any military force without the consent of the Commonwealth Parliament, but many exercises of the defence power by the Commonwealth will virtually exclude a state from legislating on the subject. Another example is s 51(xii), the federal power to legislate with respect to currency, coinage and legal tender. Section 115 states that a state shall not coin money nor make anything but gold and silver coin legal tender in the payment of debts. Ever since Federation, the states have left the subject matter of para (xii) entirely to the Commonwealth. Other examples of powers that are by their nature exclusive are s 51(iv) (borrowing money on the public credit of the Commonwealth) and s 122 (laws for the government of the territories). Almost all Commonwealth legislative powers are defined in terms of subject matter, for example, trade and commerce, invalid and old age pensions, and quarantine. For those powers, if a law is plainly on its face a law with respect to the relevant subject matter, then unless the exercise of the power infringes some constitutional prohibition the court will not embark on any further inquiry as to the law’s validity. However, the High Court has held that the defence power in s 51(vi) describes a purpose rather than a subject and, therefore, the test for validity is whether a law made under this power serves a valid defence purpose. It is sometimes said that the defence power has a constant meaning, but a variable content, which has to be examined in the light of the prevailing international situation. During times of armed conflict as in World War II, [page 154] the Commonwealth may impose all kinds of control on community life which could not be justified during peacetime as a valid exercise of the defence power.

Some other powers also have a purposive aspect, for example, under the external affairs power (s 51(xxix)) the question may be whether a federal law actually serves the purpose of implementing a treaty to which Australia is a part.

Characterising federal laws In considering whether a federal law is within a head of legislative power, the High Court has for many years applied a primary test known as characterisation, or the real connection test. Under this test, once there is seen to be a real and substantial connection between the law and a head of legislative power, the law will be valid unless it infringes some express or implied prohibition. Before the Engineers’ case5 of 1920, which is discussed below, some High Court judges deferred to the pith and substance test, used in the interpretation of the Canadian federal constitution. This test acknowledges that a law may appear to deal with two subject matters, one of which may fall within federal power and one of which may be within provincial power. Under the test, if the greater substance to the federal law falls within the provincial power, it will be invalid. In Canada, the provinces have expressly enumerated powers and the Dominion Parliament has its own list of powers plus a residual general law-making power. Almost all powers are expressed to be mutually exclusive.6 Thus, in Canada it is necessary to ask whether a law is in pith and substance within the federal powers, for example, is it a law with respect to trade and commerce and therefore in the federal sphere, or is it a law with respect to property and civil rights, an item on the provincial list? It cannot be a law with respect to both. The test was soon abandoned in the High Court because, in the main, Commonwealth and state legislative powers are concurrent and not exclusive to either side. [page 155] Since the Engineers’ case, the real connection test has undergone a great deal of elaboration and refinement. Over the period of time since World War II, the volume, scope and intensity of federal legislation has greatly increased. One feature of this development has been the emergence of subsidiary tests, which fall

within the ambit of the real connection test. One such test is known as proportionality. Under the characterisation principle, if a law can reasonably be described as a law with respect to a subject of Commonwealth power, it does not matter that it can also be described as a law with respect to something else that may not be. An important consequence of the test is that the Commonwealth is able to use its limited financial and economic powers to achieve ulterior objects not within power. Examples are: •

a legislative scheme to help combat inflation in the early 1950s — caused by exceptionally high prices for Australian wool — under which producers were subject to a scale of deductions from the sale value of their wool to be credited against their liability for income tax and provisional tax during that year and for provisional tax for the next financial year. This legislation was upheld under the taxation power;7

•

a law passed in reliance on the taxation power, under which the income from superannuation funds was made liable to income tax with an exemption for income received from investments in public securities, including Commonwealth securities. This was held to be a law with respect to taxation even though it was acknowledged that the object of the laws was to encourage investment in public securities.8 In Murphyores Inc Pty Ltd v Commonwealth in 1976,9 the court considered federal customs regulations that prohibited the export of mineral sands without a permit from the Minister for Minerals and Energy. The plaintiff [page 156] company applied for an export permit but the Minister refused, having regard to environmental considerations. The court upheld the regulations as a valid exercise of the trade and commerce power although the policy objective was to protect the environment, which was not a subject of Commonwealth legislative power. As Mason J said in his judgment: It is … for Parliament in its wisdom … to decide who may export and what goods may be

exported. The means and the criteria by which this choice is to be made are for Parliament to decide. There is nothing in the subject matter of the constitutional power which justifies the implication of any limitation on Parliament’s power of selection.10

In Re Maritime Union of Australia; Ex parte CSL Pacific Shipping Inc in 2003, a unanimous High Court held: It is well settled that the character of the law in question must be determined by reference to the rights, powers, liabilities, duties and privileges which it creates and that its practical as well as legal operation must be examined to determine whether there is a sufficient connection between the law and the head of power ... If a connection exists between the law and the relevant head of power the law will be “‘with respect to’ that head of power” unless the connection is “‘so insubstantial, tenuous or distant’ that it cannot sensibly be described as a law ‘with respect to’ that head of power” [Re Dingjan; Ex parte Wagner (1995) 183 CLR 323 at 369].11

Broad construction of the legislative powers In Grain Pool of Western Australia v Commonwealth,12 the High Court unanimously observed that the general principles to be applied to determine whether a law is a law with respect to a head of constitutional power were well settled. The first was that the constitutional text should be construed with all the generality which the words that were used permitted. The court [page 157] quoted with approval a further principle explained by Mason and Deane JJ in Re F; Ex parte F: In a case where a law fairly answers the description of being a law with respect to two subject matters, one of which is and the other of which is not a subject matter appearing in section 51, it will be valid notwithstanding that there is no independent connection between the two subject matters.13

Laws incidental to the exercise of a constitutional power The High Court has consistently held that there is an implied incidental legislative power contained in the powers enumerated in s 51. As early as 1904

in D’Emden v Pedder,14 the court held that every grant of a specific legislative power included ‘every power and every control the denial of which would render the grant in itself ineffective’. In 1955 in Grannall v Marrickville Margarine Pty Ltd, Dixon CJ, McTiernan, Webb and Kitto JJ said: [E]very legislative power carries with it authority to legislate in relation to acts, matters and things the control of which is found necessary to effectuate its main purpose, and thus carries with it power to make laws governing or affecting many matters that are incidental or ancillary to the subject matter.15

The Grannall judgment referred to laws necessary to effectuate the main purpose. Later cases made it clear that it was sufficient for a law to be regarded as appropriate to that purpose. There is also a power in s 51(xxxix) for Parliament to make laws on matters ‘incidental to the execution of any power vested … in the Parliament … or in the Government … or in the Federal Judicature’. The paragraph adds little if anything to the implied incidental power at least so far as exercises [page 158] of a legislative power are concerned. As the court pointed out in Burton v Honan,16 the paragraph is limited to laws incidental to the ‘execution’ of a legislative power and not the power itself. Commonwealth legislation makes considerable use of the incidental power conferred by the Constitution in substantial areas of power such as trade and commerce. According to Quick and Garran it also served purposes connected with the formal separation of powers in the Constitution, for example, to authorise the High Court to make rules regarding the rights of litigants and the qualifications of the legal profession.17 In relation to the executive government, the power ensured that departments were equipped with all the necessary powers for their successful operation but, again, the implied power would have sufficed. In considering whether a law is a valid exercise of the implied incidental

power, the court has applied the test of whether it is reasonably appropriate and adapted to the exercise of the power on which it depends for its validity.18

High Court not bound by its previous decisions A fundamental feature of the High Court’s role as the constitutional interpreter is that it is not bound by its previous decisions.19 Section 128 provides the machinery for effecting constitutional change by popular referendum of federal electors, but only a handful of proposals submitted to the electors have found their way into the Constitution. Flexibility in approaching constitutional questions is paramount because the Constitution is not like an ordinary Act of Parliament. It may become apparent to Parliament at some time after it has passed an Act that circumstances have [page 159] so changed that an amendment is necessary and it will legislate accordingly. Yet although the Commonwealth is now a vastly different entity from the one envisaged by its framers, the problems inherent in the referendum process have usually prevented amendments from allowing for changed circumstances. Instead, the High Court performs the role of interpreting the Constitution in such a way that it is able to cater for what are regarded as being contemporary requirements. In so doing, the court professes to eschew political considerations. The court will not overturn a previous line of authority unless it finds compelling reasons to do so, but had the legal concept of stare decisis (adhesion to precedent) been preserved, it would have made the Constitution a document essentially frozen in time. Individual judges will usually defer to a strong majority decision which emerges from a line of decided cases, even though they disapprove of it. Sometimes, however, an individual judge will continue to adhere to a personal view because of what the judge sees as the requirements of the Constitution, of which the court is both a creature and the custodian.20 The rule that the High Court is not bound by earlier decisions is not

confined to constitutional matters. Whereas the Privy Council used to be the final court of appeal in all matters involving the interpretation of the common law, since the abolition of appeals to the Privy Council, the common law is now the common law of Australia and the High Court will be prepared to overturn previous decisions applicable to Australia, irrespective of their origin, if it thinks they are inappropriate or unjust, and make new rules to meet the situation before it. In earlier years when many of the Commonwealth’s powers had still to receive judicial exposition, the court was frequently reluctant to embark on upholding a law which seemed to go beyond a literally interpreted Commonwealth power. For example in 1953 in Wragg v New South Wales,21 Dixon CJ acknowledged that the distinction between interstate [page 160] and intrastate trade and commerce was probably artificial and unsuitable to modern times but his Honour said the Constitution drew a clear distinction between interstate trade and commerce that came within Commonwealth legislative power, and intrastate trade and commence which the framers had deliberately left in the hands of the states. Economic considerations had to be put to one side in considering this limitation on the scope of the Commonwealth power. By contrast in Abebe v Commonwealth, decided almost 50 years later, Kirby J said: It is not correct to construe it [the Constitution] by a search for what its framers “intended” … We are not bound to the imaginings of the men who, in the last decade of a past century, wrote the Constitution. It is the governmental charter of today’s Australians. It belongs to the present and the future. It is not chained to the past.22

Other judges, in paying regard to contemporary factors in Australian society, do so without casting aside to the same extent as Kirby J did the significance of the background against which the draftsmen of the Constitution performed their task and the understandings then current as to its meaning.

Advocates in some quarters urge that the language used in describing Commonwealth legislative powers should be interpreted according to the meaning they had as at 1900. Originalists, as they are known, do not command widespread support in their effort to enhance the standing of the states in the federation. In XYZ v Commonwealth23 a strong majority of the High Court upheld the validity under the external affairs power (s 51(xxix)) of provisions of the Crimes Act 1914 (Cth) making it an offence for Australian citizens or residents while outside Australia to engage in sexual intercourse or to commit acts of indecency on a person under 16 years of age. Despite the strong majority, Callinan and Heydon JJ dissented on the basis that the expression ‘external affairs’ should have the meaning that in [page 161] 1900 it had, or might have been envisaged as taking on in future. This did not include all matters external to Australia.24

Overlap of power Several of the powers in s 51 overlap, for example, the external affairs power in para (xxix) as now interpreted by the High Court overlaps with ‘the relations of the Commonwealth with the islands of the Pacific’ in para (xxx). The trade and commerce power in para (i) overlaps with several others including banking (xiii), insurance (xiv), bills of exchange and promissory notes (xvi) and corporations (xx). The court has held that each power is to be interpreted according to its tenet and its meaning is not to be restricted because another power also covers the same subject.25

Inbuilt limitations on legislative powers Some powers are described in s 51 with express limitations. For example, the insurance power in para (xiv) and the banking power in para (xiii) are expressed with the exceptions ‘other than State insurance’ and ‘other than State banking’,

although the Commonwealth has powers over state banking and insurance extending beyond state borders. Under para (xxxi) the Commonwealth has power to acquire property ‘on just terms’. The Commonwealth would have power to acquire property for its purposes pursuant to its other constitutional powers in the absence of para (xxxi) but the presence of para (xxxi) has been held by the High Court to require the Commonwealth to offer just terms on any acquisition it undertakes.26 An analogous position applies in relation to banking and insurance — thus the Commonwealth cannot invade state banking under other legislative powers.27 [page 162] The Constitution also imposes some express limits on the exercise of all Commonwealth powers. For example, under s 116, the Commonwealth is prohibited from establishing any religion or prohibiting the free exercise of any religion. Similarly, s 92 amounts to a constitutional guarantee of the freedom of interstate trade, and any law deemed by the High Court to infringe the guarantee will be invalid irrespective of the subject matter of the law. States as subjects of Commonwealth legislative power In 1904, the first High Court consisting of Griffith CJ, Barton and O’Connor JJ, each of whom had been prominent participants in the Convention Debates, had to come to grips with a basic question concerning the legal relationships between the original states and the new Commonwealth. Borrowing from the jurisprudence of the Supreme Court of the United States, the court imported two implied doctrines which it held to govern relationships between the Commonwealth and the states. The first implied doctrine was the immunity of instrumentalities under which the powers of both the states and the Commonwealth were interpreted as not being binding on each other or their instrumentalities. The understanding of the doctrine was that no party to the federation should be able to give its legislative or executive authority an operation which would interfere to the

smallest extent with free exercise of the legislative or executive power of other parties unless the Constitution expressly authorised such an operation. Thus, a state Act could not require a federal officer, in giving a receipt for his salary as required by Commonwealth law, to attach a state duty stamp to the receipt.28 In reverse, the Commonwealth could not make an award under its arbitration power applicable to employees of a state railway.29 [page 163] The second implied doctrine known as the doctrine of implied prohibition (sometimes also described as the ‘reserved state powers’ doctrine) operated to accord to a specific federal legislative power a narrower rather than a wider construction if the latter would involve a greater intrusion into the general legislative powers ‘reserved’ to the states. For example, a federal law imposing excise duties on the production of agricultural machinery and granting complete exemptions if the manufacturer could establish that it paid fair and reasonable remuneration to its employees was held not to be a valid excise law because it purported to deal with conditions of labour, a matter reserved to the states.30 In 1906, Isaac Isaacs and Henry Higgins were appointed to the High Court and changes followed. In 1920, the court delivered the landmark Engineers’ case, deciding by a six to one majority that both implied doctrines should be abolished.31 The engineers had served a log of claims on several employers in different states, including the Minister for Trading Concerns of Western Australia who administered two authorities set up under state law — the State Implement and Engineering Works and the State Sawmills. After having their claims rejected, the engineers sought a federal determination by the Commonwealth Court of Conciliation and Arbitration established under s 51(xxv) of the Constitution. Their claim was resisted on the ground that the Commonwealth had no power to bind a state in its capacity as an employer. The court held that the Constitution was to be interpreted in accordance with the ordinary principles of statutory interpretation. According to the court, the ‘golden rule’ of statutory interpretation used by English courts, applied in

accordance with the ordinary rules for construing of statutes, meant that a subject of legislative power such as the conciliation and arbitration power was to be accorded its natural and ordinary meaning, without resort to implications. The case was considered to be a triumph for Isaacs and Higgins. Some of the reasoning in the judgment has attracted [page 164] heavy criticism in constitutional quarters. The joint judgment of four of the judges authored by Isaacs J was poorly organised and discursive, but the decision has stood the test of time. In subsequent cases, the court has been careful to point out that the Engineers’ case did not preclude resort to implications arising from the federal system of government, and it has drawn a number of relevant implications. In 1947 in Melbourne Corporation v Commonwealth32 — the State Banking case — the High Court held that an implication arose from the federal structure that the Commonwealth could not validly impose burdens specially on states, or discriminate against states as objects of burdens, nor curtail a state’s capacity to function as a government. In the State Banking case, a Commonwealth banking law which prohibited the states (including their local governments) from banking, except with a bank consented to by the Federal Treasurer, was held to be invalid. Otherwise, however, although the states are not the same as ordinary citizens, in general they can be made subject to a Commonwealth law. Dixon J held that its banking power did not entitle the Commonwealth to nominate the states and place burdens or disabilities specifically on them. Latham CJ’s view was that a Commonwealth law would be invalid if it discriminated against the states in the sense that the states were singled out for taxation or some other burden which did not apply across the board. He also stated that a federal law would be invalid if it interfered with the performance of the basic state functions of government. Dixon J’s explanation in the State Banking case of the limits to the Commonwealth Parliament’s power to make laws binding the states did not

attract unqualified acceptance by other members of the court. In 1971, Barwick CJ took a quite different view in Victoria v Commonwealth (Payroll Tax case),33 a case in which the court upheld the right of the Commonwealth to impose payroll tax on salaries paid by state governments. His Honour’s opinion was that the only acceptable ground for the decision in Melbourne [page 165] Corporation was that the validity of a Commonwealth law depended on whether it was within a subject matter of Commonwealth legislative power, and this was a question of characterisation. In 1983, Mason J in the Tasmanian Dam case34 contradicted Barwick CJ’s view, saying, consistently with the Dixon J view in the State Banking case, that there was an implied prohibition which could prevent the Commonwealth from discriminating or singling out a state or imposing some special burden or disability which impaired its continued existence or capacity to function. At the same time, where a head of Commonwealth legislative power such as the defence power on its true construction authorised interference with the state’s exercise of a particular subject matter, there was no room for the application of the implied limitation. In 1995, the unanimous High Court in Re Australian Education Union35 adopted the Mason J view, in holding that the Commonwealth industrial awards could apply to persons employed in the administrative services of the state. According to the court, the existence of the states and their constitutions, and their capacity to function as governments, would not be impaired by the operation of federal awards made in respect of the vast majority of state employees, at any rate if the award provision were confined to minimum wages and working conditions. This decision did not authorise the Commonwealth to determine the conditions of employment of persons at the higher levels of government. The court held that the limitations on Commonwealth power consisted of two elements: first, a prohibition against discrimination which involved placing special burdens or disabilities on a state; and second, a

prohibition against laws applying not just to states but generally, which operated to destroy or curtail the continued existence of the states or their capacity to function as governments.36 [page 166] In Clarke v Commissioner of Taxation in 2009,37 the plaintiff had been a member of the South Australian Parliament and was entitled to benefits under South Australia’s superannuation schemes. A Commonwealth legislative scheme purported to tax his state superannuation contributions. The High Court, consisting of French CJ, Gummow, Hayne, Heydon, Kiefel and Bell JJ, unanimously held that the imposition of federal taxation on the state’s schemes, so far as they benefitted the holders of high state offices such as Clarke, impaired the governmental functions of South Australia and were therefore invalid. In Clarke’s case, Gummow, Heydon, Kiefel and Bell JJ jointly agreed38 that the ‘notion of discrimination’ was only an illustration of a law which impaired the capacity of states to function as constituent entities of the federal structure. Their Honours stated that Dixon J in the State Banking case considered discrimination in the sense of a law aimed at a state or placing a special burden on a state. The situation was as described in Austin v Commonwealth,39 that the required assessment of a federal law’s impact and hence its validity, was by action such as imposing a special burden or curtailing the capacity of the states to function as governments and this inevitably turned on matters of materiality and degree and facts not readily established in court proceedings. The joint judgment in Clarke’s case concluded that the effect of the federal legislation was to induce the states to vary their methods of remuneration of members of the legislature, because it operated as a deterrent in attracting competent persons as legislators, which was a critical aspect of the conduct of the parliamentary form of state government. The judgment had nothing to say about members of the lower echelons of state government administration. [page 167]

State power to bind the Commonwealth While the Commonwealth can make laws binding upon the states, to the extent of requiring payment of payroll tax, the reverse is not true. The extent to which a state could bind the Commonwealth remained a matter of judicial controversy for some years after the State Banking case. In 1925 in Pirrie v McFarlane,40 the defendant was a member of the Royal Australian Air Force (RAAF). He was ordered to drive an RAAF car in Victoria but he did not have a driver’s licence. After being stopped by a member of the Victorian Police Force he was charged under the Motor Car Act 1915 (Vic) with driving a motor vehicle on a public highway without a licence. After a state magistrate dismissed the charge, the case came before the High Court. In a three to two decision the court held that there was nothing in the Constitution that expressly or impliedly exempted members of the defence force from the state Act. In the absence of any Commonwealth law granting members of the defence force immunity from state laws regulating the use of motor cars, the state Act applied and the driver was guilty of an offence.41 In Commonwealth v Bogle in 1953,42 Commonwealth Hostels Ltd, a company managed and controlled by a federal department, operated a hostel in Victoria on land held by the Commonwealth under a lease. Several boarders refused to pay increases in hostel tariff charges exceeding maximum charges fixed by orders made under the Prices Regulation Act 1948 (Vic). Both the Commonwealth and the company sought to recover the unpaid increases. The High Court held that the company was not an agent or instrumentality of the Commonwealth Crown and was therefore not entitled to its immunities. Fullagar J, with whom Dixon CJ, Williams, [page 168] Webb, Kitto and Taylor JJ agreed, took the opportunity to state that the Commonwealth was not bound by the state legislation: To say that a State can enact legislation which is binding upon the Commonwealth in the same sense in which it is binding upon a subject of the State appears to me to give effect to a fundamental

misconception … If the answer to the question of construction be that the statute in question does purport to bind the Crown in right of the Commonwealth, then a constitutional question arises. The Crown in right of the State has assented to the statute, but the Crown in right of the Commonwealth has not, and the constitutional question, to my mind, is susceptible to only one answer, and that is that the State Parliament has no power over the Commonwealth.

His Honour added, however, that: The Commonwealth may, of course, become affected by State laws. If, for example, it makes a contract in Victoria, the terms and effect of that contract may have to be sought in the Goods Act 1928 (Vic) … But I should think it impossible to hold that the Parliament of Victoria could lawfully prescribe the uses which might be made by the Commonwealth of its own property …43

In Commonwealth v Cigamatic Pty Ltd (in liq) in 1962,44 the Commonwealth sought a declaration that a company which was in liquidation should pay federal sales tax and other federal impositions in priority over unsecured creditors which included the states. The argument for the defendant company was that it was bound by state company law providing for priority to be given to payment of state taxes in the winding up of an insolvent company. The court dismissed the company’s argument.45 Doubts subsequently arose as to just how the Commonwealth may become affected by state laws. In 1997, in Re Residential Tenancies Tribunal of New South Wales; Ex parte Defence Housing Authority,46 the High Court took the opportunity to review Cigamatic and concluded that the case made it clear that [page 169] a state legislature had no power to impair the capacities of the Commonwealth executive, but at the same time it recognised that the Commonwealth might be regulated by state laws of general application to those activities which were carried on in common with other citizens. Having regard to the fundamental principle recognised in the State Banking case, the court held that only an express provision in the Constitution could authorise a state to affect the capacities of the Commonwealth executive and there was no such authorisation in this case. Turning to Bogle’s case, the court stated that Fullagar J’s statement to the effect that it was a fundamental misconception to say that a state could enact legislation binding upon the Commonwealth was obiter dictum — not part

of the reasoning which led to the court’s decision — and contrary to the later decision in Cigamatic. Even though Dixon CJ and other judges in Bogle’s case stated that they agreed with the reasoning and conclusion of Fullagar J, the court had decided in Cigamatic that it could hardly be said that they were assenting to Fullagar J’s proposition. The Commonwealth executive was not above the law, and state laws of general application could bind the Commonwealth. Accordingly, the court held that the Defence Housing Authority was subject to the operation of state residential tenancies legislation which was of general application.47 The rule of law required such a result. The court stated further, however, that while the principle that executive power must be exercised in accordance with the law applied to both Commonwealth and state governments, the Commonwealth enjoyed a paramount position within its areas of legislative competence because of s 109 of the Constitution. In the Defence Housing Authority case the court pointed out that the Residential Tenancies Act 1987 (NSW) did not purport to modify the executive capacities of the Commonwealth but was a law of general application. Brennan CJ pointed out that there was no reason why the Crown in right of the Commonwealth should not be bound by a state law of general application which governs the transactions which the Crown [page 170] in right of the Commonwealth may choose to enter, unless the state law purported on its face to impose a burden on the Crown in right of the Commonwealth. According to the joint judgment of Dawson, Toohey and Gaudron JJ (substantially in line with the other majority judges) in the Defence Housing Authority case, Commonwealth legislative powers were impliedly restricted so as to preclude their exercise by the making of laws singling out a state so as to impose a special burden on it or inhibiting or impairing the continued existence of the state or its capacity to function, but the states did not have specific legislative powers authorising them to restrict or modify the executive capacities of the Commonwealth. The specific heads of power granted

to the Commonwealth Parliament might, in construing legislation, be found to extend to the alteration of the capacity of the Crown in right of the states. The Commonwealth enjoyed a paramount position within its area of legislative competence because of s 109 of the Constitution. A valid Commonwealth law would prevail over any inconsistent state law. Thus if there had been a law validly enacted under the defence power relieving servicemen of the obligation to hold a driver’s licence when acting in the execution of their duties, according to the judges, the result in Pirrie v McFarlane would have been different. It seems that the extent to which the Commonwealth can invoke s 109 to render itself immune from the application of any state law depends on the interpretation of the Commonwealth’s particular legislative powers and the nature of the exemption it seeks from the application of a state law of general application. Generally, however, the High Court has permitted the Commonwealth to exclude the application of state laws once a matter can be shown to fall within Commonwealth power.48 [page 171] The High Court has steadfastly held that, as a principle, the rule of law underlies the Constitution. Dixon J said so specifically in the Communist Party case49 in 1951 which invalidated Commonwealth legislation suppressing the Communist Party and its affiliated bodies and restricting the employment of persons holding Communist beliefs. His Honour’s observations were adopted by nearly all the judges in 2003 in Plaintiff S157/2002 v Commonwealth.50 It would be open to the court to invoke the rule of law principle, elusive in its dimensions as it may be, in considering Commonwealth laws which rely on s 109 to exclude state laws, for example, to invalidate federal laws claiming major exemptions from state traffic laws for Commonwealth employees of various categories. Alternatively, in terms of the current formulae for determining the connection between a federal law and a legislative power, the court could determine the validity of a Commonwealth law by considering whether it was a measure appropriate and adapted to the implementation of the legislative power on

which it relies for validity.

1. 2. 3. 4.

5. 6. 7. 8. 9. 10. 11. 12. 13. 14. 15. 16. 17. 18. 19.

20. 21. 22. 23. 24. 25. 26. 27. 28.

M Stubbs, ‘A Brief History of the Judicial Review of Legislation under the Australian Constitution’ (2012) 40 Federal Law Review 227. Under s 52 the Federal Parliament also has exclusive powers, inter alia, to make laws for the seat of government of the Commonwealth and all places acquired by it for public purposes. Dickenson’s Arcade Pty Ltd v Tasmania (1974) 130 CLR 177; 2 ALR 460; Ha v New South Wales (1997) 189 CLR 465; 146 ALR 355. Cole v Whitfield (1988) 165 CLR 360; 78 ALR 42; Castlemaine Tooheys Ltd v South Australia (1990) 169 CLR 436; 90 ALR 371; Betfair Pty Ltd v Western Australia (2008) 234 CLR 417; 244 ALR 32; [2008] HCA 11; Betfair Pty Ltd v Racing New South Wales (2012) 249 CLR 217; 286 ALR 221; [2012] HCA 12. Amalgamated Society of Engineers v Adelaide Steamship Co Ltd (1920) 28 CLR 129; 26 ALR 337. British North America Act 1867 ss 91 and 92. Two powers, immigration and agriculture, are given to both the dominion and the provinces by s 95. Moore v Commonwealth (1951) 82 CLR 547; [1951] ALR 258. Fairfax v Federal Commissioner of Taxation (1965) 114 CLR 1; [1966] ALR 1073. (1976) 136 CLR 1; 9 ALR 199. (1976) 136 CLR 1 at 19; 9 ALR 199 at 211–12. (2003) 214 CLR 397; 200 ALR 39; [2003] HCA 43 at [35]. (2000) 202 CLR 479; 170 ALR 111; [2000] HCA 14. (1986) 161 CLR 376 at 318; 66 ALR 193 at 200. (1904) 1 CLR 91 at 110; 10 ALR (CN) 30. (1955) 93 CLR 55 at 77; [1955] ALR 331 at 338 (Grannall). (1952) 86 CLR 169; [1952] ALR 553. J Quick and R Garran, The Annotated Constitution of the Australian Commonwealth, Angus & Robertson, Sydney, 1901, p 655. On the implied incidental power, see J Stellios, Zines’ The High Court and The Constitution, Federation Press, Sydney, 2015, pp 48–70. A good account of the function of legal precedent and the factors and circumstances which the High Court has taken into account in deciding whether or not to follow a precedent may be found in P Keyzer, Principles of Australian Constitutional Law, 4th ed, LexisNexis Butterworths, Sydney, 2013, pp 38–45. Stevens v Head (1993) 176 CLR 433 at 464–5; 112 ALR 7 at 27 per Deane J. (1953) 88 CLR 353; [1953] ALR 583. (1999) 197 CLR 510; 162 ALR 1; [1999] HCA 14 at [203]. (2006) 227 CLR 532; 227 ALR 495; [2006] HCA 25. (2006) 227 CLR 532; 227 ALR 495; [2006] HCA 25 at [153]. Pidoto v Victoria (1943) 68 CLR 87; [1944] ALR 1. Attorney-General (Cth) v Schmidt (1961) 105 CLR 361; [1961] ALR 806. Bourke v State Bank of New South Wales (1990) 170 CLR 276; 93 ALR 460. D’Emden v Pedder (1904) 1 CLR 91; 10 ALR (CN) 30.

29. 30. 31. 32. 33. 34. 35. 36.

37. 38. 39.

40. 41.

42. 43. 44. 45. 46. 47.

48.

49. 50.

Federated Amalgamated Government Railway and Tramway Service Association v New South Wales Railway Traffic Employees Association (1906) 4 CLR 488; 13 ALR 273 (Railway Servants’ case). R v Barger (1908) 6 CLR 41; 14 ALR 374. Amalgamated Society of Engineers v Adelaide Steamship Co Ltd (1920) 28 CLR 129; 26 ALR 337. (1947) 74 CLR 31; [1947] ALR 377 (Melbourne Corporation). (1971) 122 CLR 353; [1971] ALR 449. Commonwealth v Tasmania (1983) 158 CLR 1; 46 ALR 625. Re Australian Education Union; Ex parte Victoria (1995) 184 CLR 188; 128 ALR 609. (1995) 184 CLR 188; 128 ALR 609. The first limb was applied earlier in Queensland Electricity Commission v Commonwealth (1985) 159 CLR 192; 61 ALR 1; the second limb struck down a federal industrial award in Victoria v Commonwealth (1996) 187 CLR 416; 138 ALR 129. (2009) 240 CLR 272; 258 ALR 623; [2009] HCA 33 (Clarke’s case). Hayne J separately agreed. (2003) 215 CLR 185; 195 ALR 321; [2003] HCA 3. Several Supreme Court judges challenged federal legislation which singled them out as state judges and imposed taxation on their superannuation entitlements. The High Court held that the Melbourne Corporation principle applied to invalidate the federal law because it affected the financial security and independence of state judicial officers. (1925) 36 CLR 170; 31 ALR 365. In Re Residential Tenancies Tribunal of New South Wales; Ex parte Defence Housing Authority (1997) 190 CLR 410; 146 ALR 495, Brennan J stated that he regarded Pirrie v McFarlane as being rightly decided and in so doing he stated that, in the absence of statutory authority, the Crown in right of the Commonwealth could not authorise its servants or agents to perform their functions in contravention of the criminal laws of a state. (1953) 89 CLR 229; [1953] ALR 229 (Bogle’s case). (1953) 89 CLR 229 at 259–60; [1953] ALR 229 at 240. (1962) 108 CLR 372; [1963] ALR 304 (Cigamatic). (1962) 108 CLR 372 at 377; [1963] ALR 304 at 305. (1997) 190 CLR 410; 146 ALR 495 (Defence Housing Authority case). The court also held that the Defence Housing Authority Act 1987 (Cth) did not provide a comprehensive and exclusive code regulating the Authority’s housing functions and there was therefore no inconsistency between the federal and state legislation such as to attract the operation of s 109 of the Constitution. Thus, the Commonwealth has been permitted, on account of its powers under ss 51(i) and 122 of the Constitution to exempt a Commonwealth public authority from state taxation (Australian Coastal Shipping Commission v O’Reilly (1962) 107 CLR 46; [1962] ALR 502) and to exempt a Commonwealth instrumentality responsible for the construction of airports from having to comply with state environmental controls (Botany Municipal Council v Federal Airports Corporation (1992) 175 CLR 453; 109 ALR 321); and by virtue of its power under s 51(v) of the Constitution to exempt Telstra Corporation Ltd and Optus Vision Pty Ltd from the payment of council rates imposed under state laws: Bayside City Council v Telstra Corporation Ltd (2004) 216 CLR 595; 206 ALR 1. Australian Communist Party v Commonwealth (1951) 83 CLR 1; [1951] ALR 129. (2003) 211 CLR 476; 195 ALR 24; [2003] HCA 2.

[page 173]

Chapter 15

Aboriginal and Torres Strait Islander Peoples Aboriginal and Torres Strait Islander peoples had occupied Australia in relative harmony with each other and with the land and seas for more than 40,000 years before the arrival of the First Fleet in 1788. They lived in communities under the leadership of elders and sustained themselves by hunting and fishing and using the products of native flora. Around 300 different language groups existed across Australia. White colonisation was a disaster for Aboriginal and Torres Strait Islander peoples. After the First Fleet arrived, Aboriginal peoples were often treated as primitive in their state of social development, and they were forced to make way for British settlers. Any resistance was frequently opposed with callous disregard for individual lives, families and communities. Killings and other brutal treatment by white colonists, the introduction of exotic diseases, and poverty resulting from dispossession of their lands and seas, saw the total number of Aboriginal and Torres Strait Islander peoples radically reduced as white colonisation expanded. By 1900, there were fewer than 100,000 Aboriginal people in Australia, and the number remained below that figure well into the 20th century. Maltreatment did not cease at Federation. In 1928, a group of Aboriginal people in central Australia killed a white station hand. A party led by police caught up with the group near Coniston Station, 260 km from Alice Springs. The police party killed at least 30 members of the group. A subsequent board of inquiry consisting of a police magistrate, a police inspector and a police commissioner interviewed 30 witnesses, of whom

[page 174] only one was not a European. The board reported that the shootings were justified.1 By the 1890s, Aboriginal and Torres Strait Islander peoples were employed in relatively small numbers by white farmers often with little more reward than their food and lodgings. They were also employed in lower level occupations in the towns at marginal levels of reward. Beyond the areas of settlement, Aboriginal nations still lived according to their customs but they remained susceptible to displacement by further white settlement on large-scale pastoral properties in northern Australia. Aboriginal matters received scant consideration in the Convention Debates. Section 51(xxvi) of the Constitution gave the Commonwealth Parliament the power to make laws for the people of any race ‘other than the aboriginal race in any State’. Section 127 proclaimed that in the reckoning of the population of the country ‘aboriginal natives shall not be counted’. Aside from these two exclusions, no other specific provision was made in the Constitution for Aboriginal and Torres Strait Islander peoples. They would, however, also be affected by s 25 which — for the purposes of determining how many seats in the House of Representatives are allocated to each state — excludes from the calculation of a state’s population all persons of any race disqualified from voting at state elections. At Federation, the states remained responsible for the treatment of Aboriginal and Torres Strait Islander peoples, but the Commonwealth assumed responsibility for the Northern Territory upon the transfer of the Territory from South Australia to the Commonwealth on 1 January 1911. The Northern Territory Acceptance Act 1910 (Cth) contained a provision that was to be of future significance, namely that Crown lands were not to be disposed of as freehold estates. Large areas left in Commonwealth hands by this provision became Aboriginal reserves. State and federal policies were directed towards segregation of Aboriginal peoples under the name of

[page 175] protection measures. Action took diverse forms including the establishment of reserves under white control in which Aboriginal peoples were compelled to live with serious restraints upon their freedom. In 1918, the Northern Territory adopted a policy already practised by state authorities, of removing Aboriginal children from their mothers and placing them in institutions or foster care. Similar policies were still in place in many parts of Australia into the 1960s. By raising Aboriginal children in accordance with the norms of white society, the policy aimed at assimilation of the Aboriginal peoples into the general population, unlike the institution of Aboriginal reserves and other segregationist measures. The pursuit of this policy resulted in the ‘Stolen Generations’, which the Prime Minister’s apology of 2008 acknowledged as a ‘blemished chapter in our nation’s history’ in which ‘profound grief, suffering and loss’ was inflicted on Aboriginal and Torres Strait Islander peoples.2 A 1937 conference of Commonwealth and state authorities on Aboriginal welfare stated by way of objective that ‘this conference believes that the destiny of the natives of Aboriginal origin but not of the full-blood, lies in their ultimate absorption by the people of the Commonwealth, and it therefore recommends that all efforts be directed to that end’.3 Commonwealth and state policies continued to be directed to that end for many years to come. In 1951, federal minister Paul Hasluck informed the House of Representatives that segregationist measures were no longer appropriate, in language that reflected the times. He said that ‘more than two-thirds of the Aborigines are either de-tribalised or well on the way to losing their [page 176] tribal life’.4 According to the minister, there were advantages for Aboriginal peoples in the ‘blessings of civilisation’ and ‘in the course of time it is to be

expected that all persons of aboriginal blood or mixed blood in Australia will live as white Australians do’.5 The policy of assimilation which Paul Hasluck announced received support from all Australian governments. In the Northern Territory, large numbers of Aboriginal people were made wards of the government for the given reason that they required special care. In 1957, 15,700 Aboriginal people were made wards in a block declaration under a welfare ordinance, which subjected them to substantial restrictions in relation to marriage, employment and other matters. One gesture of inclusion, fitting with the turning away from the policy of segregation, was the 1962 amendment to the Commonwealth Electoral Act 1918 (Cth) to finally give Indigenous people the right to vote at federal elections. In 1967, one of the few successful constitutional referendums gave the Commonwealth legislative power in respect of Aboriginal peoples by deleting the words ‘other than the aboriginal race in any State’ from s 51(xxvi), which empowers the Commonwealth to legislate for the people of any race for whom it is deemed necessary to make special laws. Section 127, which disregarded Aboriginal people in counting the population, was also repealed; s 25, however, was not removed. The referendum came about largely through the strenuous efforts of the Federal Council for the Advancement of Aborigines and Torres Strait Islanders, a body that included Indigenous and non-Indigenous citizens from all walks of life including unions and religious bodies. Following the referendum in 1967, the Commonwealth took a much more active role in Aboriginal affairs. Following the 1967 referendum, non-Indigenous persons joining forces with Aboriginal and Torres Strait Islander peoples in various causes began to press for the acceptance of a plan of reconciliation which would give formal recognition of ill treatments and seek to address past wrongs. [page 177] A major turnabout occurred in 1972 when the newly elected Prime Minister Gough Whitlam cast aside all previous official policies and announced that

Aboriginal peoples should have the right to self-determination. In consequence, the Aboriginal rights movement entered a new phase, but results were slow in coming. Shortly before the Whitlam Government lost office, it passed the Racial Discrimination Act 1975 (Cth), which outlawed discrimination based on race, descent, colour or nationality that fettered any human right or fundamental freedom. It is an Act which is unlikely to be repealed, although it has been twice suspended to the detriment of Aboriginal peoples: by 1998 amendments to the Native Title Act 1993 (Cth) and by legislation implementing the Northern Territory Intervention (discussed below). In the early 1980s, a growing number of activists promoted the idea of a treaty between Aboriginal and Torres Strait Islander peoples and the Commonwealth Government as representative of the non-Indigenous population. The Hawke Government offered some encouragement but action did not result. Mr Hawke’s successor as Prime Minister, Paul Keating, maintained government interest and Parliament passed the Council for Aboriginal Reconciliation Act 1991 (Cth), which placed the aim of reconciliation on the formal agenda and established a council of the same name.

Mabo v Queensland (No 2) Until 1992, accepted legal theory in Australia which had the backing of judicial observations by the Privy Council in Cooper v Stuart,6 was that New South Wales was a British colony settled peacefully by annexation by the Crown in the exercise of its sovereign power. It was not a colony gained by cession or conquest. In English law, a settled colony not previously occupied by people the colonists could recognise as a settled society, was terra nullius (‘nobody’s land’) and this was treated as the position in Australia. The [page 178] applicable law was therefore English common law, which recognised the Crown

as the owner of all the land it annexed. In delivering the Privy Council’s decision, Lord Watson said: There is a great difference between the case of a Colony acquired by conquest or cession, in which there is an established system of law, and that of a Colony which consisted of a tract of territory practically unoccupied, without settled inhabitants or settled law, at the time when it was peacefully annexed to the British dominions. The Colony of New South Wales belongs to the latter class.7

Later cases in Australia accepted Lord Watson’s distinction but not without misgivings.8 For some years before 1992, the accepted view was under challenge, principally by the Meriam people who inhabited the Murray Islands in the Torres Strait. As a small community of Polynesian origin, the Meriam people had occupied their islands for centuries and they subsisted on the produce of gardens and fishing. The British Crown acquired sovereignty over the island in 1879 when Queen Victoria issued letters patent authorising Queensland to annex them. In Mabo v Queensland (No 2)9 Eddie Mabo and other Meriam people claimed that their islands were not Crown land under the Queensland Land Acts of 1910 or 1962 and that they had title to the land and had continuously occupied it. The High Court by a majority of six to one upheld the claim. The court overturned the terra nullius doctrine, which it said was a fiction unacceptable to contemporary society. The doctrine ignored the fact that Australia was at the time of colonisation inhabited by organised Aboriginal communities that had their own customs and traditions and had a close traditional connection with the land on which they hunted and foraged. Their rights amounted to native title. [page 179] Second, the court held, contrary to previous thinking, that when the Crown acquired Australia in 1788, the sovereign action did not thereupon vest full beneficial ownership in the Crown. Instead the Crown acquired ‘radical title’ which it could convert into full beneficial ownership if it wished as, for example,

when it made grants of freehold land, whereupon native title would be extinguished. Until then, any existing native title rights remained unaffected. Neither Queensland’s Land Acts nor any other Crown measure purported to oust native title and therefore the plaintiff’s claim was upheld. To most lawyers, the concept of radical title would have appeared to be an invention, but Brennan J (with whom Mason CJ and McHugh J agreed) in the course of an elaborate judgment replete with historical references explained that the origin of the term lay in the feudal land system, which provided the basis of the English law of real property. Under feudalism, all land was held on different tenures either mediately or immediately from the sovereign king as the Lord Paramount who held radical, ultimate or final title.10 Essential features of the case include the following: •

The Crown’s exercise of sovereignty over New South Wales and parts of Australia was not susceptible to legal challenge.

•

The court did not disturb the English common law characterisation of Australia as a settled colony as distinct from a conquered or ceded colony, even though from an early date Aboriginal and Torres Strait Islander peoples had resisted white encroachment on their lands.

•

Besides being subject to extinction by action on the part of the Crown, native title could also be extinguished if an Indigenous group lost its connection with the land. Native title could not be subsequently revived. Claimants had to show a traditional continuous connection with the land as at the date sovereignty was asserted and a continuous connection thereafter, subject to overriding land grants. [page 180]

•

Native title to particular land and the Indigenous people entitled to it, have to be ascertained according to the laws and customs of the Indigenous people.

•

Common law native title is communal title enjoined by a community or

other group and not by the members individually. The rights conferred are legal rights and do not constitute an interest or estate in the land itself. •

Native title rights are not the equivalent of real property rights under English common law, and the content of the rights depends upon the relevant traditional laws or customs. They may vary from a right to hunt and forage to something approaching ownership of the land in the common law sense. The traditional law or custom is not frozen as at the establishment of the colony but can be varied by subsequent developments, as long as the native title holders’ relationship with the land continues unabated. Following Mabo, the Commonwealth Parliament passed the Native Title Act 1993 (Cth). It validated past grants of land to remove any uncertainty about title which had arisen following the case and provided a regime for dealing with future claims to native title. The Act described native title as rights and interests that are possessed under traditional laws and customs of the Aboriginal and Torres Strait Islander peoples recognised by the common law of Australia. Such rights are subject to the general law of the Commonwealth, states and territories. The Act provided machinery for ascertaining where native title still exists and its ownership and to determine compensation in the event of future action adversely affecting it. The Act also provided for a Native Title Tribunal. In Western Australia, Mabo aroused considerable hostility among holders of pastoral leases, which extended over a large part of the state. Shortly afterwards, the Western Australian Parliament passed the Land (Titles and Traditional Usage) Act 1993 (WA) to extinguish all native titles in the state and replace them with statutory rights of traditional usage, which were more restrictive than rights recognised in Mabo. That Act also did not [page 181] allow compensation for the extinguishment of native title. In a High Court challenge in Western Australia v Commonwealth,11 the High Court held that the

state Act was inconsistent with the Racial Discrimination Act 1975 (Cth) and therefore invalid. The court also upheld the validity of the Native Title Act 1993 (Cth). Mabo made it clear that a grant of freehold land from the Crown would extinguish native title and this gave assurance to owners of freehold land that they would not be susceptible to native title claims. However, the decision left open the question whether Aboriginal claims to continuing rights over land were extinguished by the granting of pastoral leases. Such leases are of many different kinds, and they occupy almost 40 per cent of the continent, mainly in Queensland, Western Australia and the Northern Territory. The question came before the High Court in Wik Peoples v Queensland.12 Queensland had granted pastoral leases under two separate Land Acts (Land Act 1910 (Qld) and Land Act 1962 (Qld)) over land in which the Wik people had claims to continuing land rights. The High Court held in a four to three decision that it did not follow from the mere granting of pastoral leases that Aboriginal land rights were necessarily extinguished. The leases contained several reservations but made no mention of Aboriginal land rights. Nevertheless, the court held they were subject to them. Conversely, the minority judges (one of whom was Brennan CJ, the principal architect of the Mabo decision) held that the grants of the leases in themselves were sufficient to extinguish native title. The minority position was that the Commonwealth could only grant a property interest such as a lease because it had a greater proprietorial interest in the land and upon the expiration of the term of the lease ownership reverted to the Crown. The majority judgments stressed that, historically, both in England and Australia the constant concern was that the grant of pastoral leases should not prevent Aboriginal peoples from continuing to use the land for traditional purposes. According to Toohey J, it was therefore unlikely that [page 182] it was the intention of the Queensland legislature to exclude Aboriginal peoples

from their traditional rights. Toohey J went on to say: That is not to say the legislature gave conscious recognition to native title in the sense reflected in Mabo (No 2). It is simply that there is nothing in the statute or grant that should be taken as a total exclusion of the indigenous people from the land …13

Yet the fact that the leases created specific exceptions to the leaseholders’ rights in other ways might have suggested that the leases were to be read — expressio unius, exclusio alterius — so as not to limit the leaseholders’ rights in favour of Aboriginal land rights.14 When the Commonwealth took over responsibility for the Northern Territory from South Australia in 1910, existing pastoral leases in the Territory granted under South Australian law explicitly preserved Aboriginal rights to enter pastoral leases and hunt and forage,15 as if supporting the view that native rights required an express limitation. So the Wik case was a noteworthy victory for Aboriginal rights. A sequel to the Wik decision was that the plaintiffs gained native title rights over about 20,000 square kilometres of leasehold land. The greater significance of the decision lay in the fact that, with about 40 per cent of the landmass being subject to pastoral leases, the potential existed for many further claims, depending of course, as Wik made clear, on the terms of the leases. Wik has so far served Aboriginal people reasonably well, although claims are slow in being resolved. The native title rights of the Wik peoples which were recognised in the decision were limited to hunting and foraging. Of course, in all cases the right depends on Aboriginal groups continuing [page 183] to exercise their traditional rights in respect of the land under challenge. In Mabo, the court recognised that the content of native title could vary with changes in traditions and customs. How far native title can approximate to the equivalent of freehold title under the common law remains uncertain.

Reconciliation and self-determination In 2000, the Council for Aboriginal Reconciliation released a draft Australian

Declaration Towards Reconciliation, which it wanted all Australian governments to adopt. Amongst other things, it contemplated an apology and forgiveness of the sins of the past. It stated that human rights should be available to all Australians on the basis of equality, and that customary laws, beliefs and traditions of Aboriginal and Torres Strait Islander peoples should continue to be recognised. The draft declaration also urged the adoption of a final pledge recognising that the Indigenous peoples had the right to self-determination within the life of the nation. The Council had a road map for the implementation of the draft declaration, but it faced formidable obstacles particularly about the content of the right of self-determination. On one meaning, it could involve recognising that the Indigenous population has the right to choose a separate existence within the nation as a community with its own institutions of government. A further issue is to determine how and to what extent customary laws, beliefs and traditions can exist side by side with an established legal system based on the common law. To this day, the draft declaration remains just that — a draft. In 1989, a major policy change occurred. Parliament passed the Aboriginal and Torres Strait Islander Commission Act, which established a Commission by that name as a successor to the Aboriginal Development Commission and the Department of Aboriginal Affairs. It became known as ATSIC. This was a serious attempt by the Hawke Labor Government to introduce a policy of selfdetermination for Indigenous Australians. The Act provided for the election of 17 Aboriginal and Torres Strait Islander commissioners through the machinery of elected regional councils, three commissioners appointed by the minister, and a public service support [page 184] staff. The regional councils were given their own budgets and authority to make policy decisions, subject to the overall supervision of the Commission. The Commission itself was given power to make housing loans and grants for enterprises to undertake community development employment programs. It

could also provide funding for the activities of umbrella organisations such as Aboriginal Hostels Ltd and the Office of the Registrar of Aboriginal Corporations. The legislative framework plus a generous annual budget exceeding $1 billion seemed to provide a golden opportunity for Aboriginal peoples to manage their own affairs. In its initial years, ATSIC seemed as though it would ultimately be competent to frame and deliver sound policies, but in later years controversy arose as to whether the promise was being fulfilled. In 2005, the Commonwealth brought ATSIC to an end, and replaced it with a nominated Indigenous Council. The Council is an advisory body to the government through the channel of a ministerial taskforce on Indigenous affairs. Policy and coordination roles were returned to the Office of Indigenous Policy Coordination within the Department of Families, Community Services and Indigenous Affairs. The closure of ATSIC followed allegations of nepotism, internal conflicts, misuse of powers, unauthorised expenditures and support given to projects that were doomed to failure from the outset. Thereafter, throughout the duration of the Howard Coalition Government, the political climate was more one of concern with Aboriginal social welfare than with formal gestures about reconciliation and self-determination. Reports were emerging with increasing frequency of problems of inadequate housing, high levels of unemployment, lack of education, drug and alcohol abuse, and the physical and sexual abuse of women and children in Aboriginal communities. The problems are well known, the solutions are not. Intervention in the affairs of the Northern Territory Aboriginal communities by the Commonwealth Government in 2007 (described below) has understandably been seen as a paternalistic move away from self-determination. On the [page 185] other hand, an apology to Aboriginal and Torres Strait Islander peoples for abuses of the past, given on behalf of the Commonwealth by recently elected Prime Minister Kevin Rudd in 2008, was applauded by many observers as an important step towards a future in which Indigenous peoples enjoy opportunity

and respect. It is likely that both the intervention and the apology were intended to promote real improvement in the condition of Aboriginal peoples, although at the very least they approached the issue in radically different ways. Years later, the scale of the challenge remains far more conspicuous than the progress resulting from either. Aboriginal sovereignty In 1960, a United Nations General Assembly resolution declared that all peoples have the right to self-determination and by reason of that right they could freely determine their political status and pursue their economic, social and cultural development.16 Some see the declaration as providing an incentive for former colonies to become sovereign states, as has happened to Papua New Guinea. By analogy, it is argued that Indigenous Australians should have a comparable right to self-determination by treaty or other arrangement with non-Indigenous Australians. In Mabo, Brennan J quoted Gibbs J in New South Wales v Commonwealth:17 ‘The acquisition of territory by a sovereign state for the first time is an act of state which cannot be challenged, controlled or interfered with by the courts of that state.’18 In Walker v New South Wales, Mason CJ spoke about notions that Australian Parliaments lacked competence to regulate the rights of Aboriginal peoples and that their laws were subject to Aboriginal acceptance: ‘Such notions amount to the contention that a new source of sovereignty resides in the Aboriginal people. Indeed Mabo (No 2) rejected that suggestion.’19 [page 186] The chances of any rival claim of sovereignty or some limited form of sovereignty based on United Nations formulations succeeding in Australia are minimal.20

Northern Territory intervention

In 2007, an inquiry commissioned by the Northern Territory Government produced a scathing report of widespread sexual abuse of Aboriginal children and the appalling conditions in which they lived in some communities. The report emphasised how little governments had done to ameliorate the plight of children, and concluded that the situation of children in some communities was a symptom of a broader ‘breakdown of Aboriginal culture and society’ within those communities.21 The causes of this alleged breakdown of areas of society are extremely complex; debates over the years have ranged over issues such as welfare dependence, alcohol and substance abuse, poverty and lack of economic opportunity, lack of access to basic services especially in health and education, and the enormously destructive impacts of governments and settlers since colonisation. The 2007 report attracted immediate widespread attention across the nation and it led Prime Minister John Howard to announce that as a matter of urgency the Commonwealth would take immediate steps to become involved. This would mean the Commonwealth temporarily taking over the lands of affected communities and introducing measures to take wrongdoers to account, to render parents responsible for the care of their children, and to ensure that the children were the actual recipients of the welfare and other [page 187] benefits, including education, which were (at least in theory) available to them under Commonwealth law. About 70 communities in the Northern Territory were identified for intervention. The Prime Minister’s intervention was consistent with his government’s policy following the abolition of ATSIC of sharing responsibility by agreements between Indigenous people and the nation, in return for services and infrastructures that ordinary Australians took for granted. Not unexpectedly, the government’s action aroused criticism from Aboriginal activists and other commentators that the government acted without prior agreement of relevant Aboriginal groups. Some complained that the process was another form of

paternalism which ran counter to the need for self-determination. Others defended the intervention, arguing that the protection of children outweighs more idealistic concerns such as self-determination. The Prime Minister made it clear that the government expected it to be a long-haul process that would be costly for the taxpayer.

Aboriginal peoples and the race power (Constitution s 51(xxvi)) The Commonwealth power is not one to make laws with respect to Aboriginal peoples as it may do in the Territories, but rather the power to legislate with respect to Aboriginal peoples as the people of a race ‘for whom it is deemed necessary to make special laws’. The phrase ‘for whom it is deemed necessary’ means that it is for Parliament to decide whether it is necessary to make a special law. Full constitutional power to make laws about Aboriginal peoples remains with the states, except that any state law is invalid if it is inconsistent with a valid Commonwealth law. The original thinking behind the race power, in the eyes of the founders, was to give the Commonwealth the power to deal with groups of foreigners such as Pacific Islanders, Afghans and Chinese, whom it did not wish to admit to permanent residence, or against whom it wished to discriminate [page 188] in other ways. In the founder Edmund Barton’s words, the race power was included to enable the Commonwealth to ‘regulate the affairs of the people of coloured or inferior races who are in the Commonwealth’.22 The public supported the referendum in 1967 that extended the Commonwealth’s power to include Aboriginal peoples within the race power, by deleting the words ‘other than the Aboriginal race in any state’ from s 51(xxvi) of the Constitution, which grants legislative power with respect to ‘the people of any race for whom it is deemed necessary to make special laws’. The undoubted

reason for granting the Commonwealth power with respect to Aboriginal peoples — previously withheld by the words deleted from s 51(xxvi) in 1967 — was that this additional power would be of benefit to Aboriginal and Torres Strait Islander Australians. It has subsequently been argued that the Commonwealth power is thus limited to measures that are beneficial to Aboriginal peoples. In the Hindmarsh Island Bridge case,23 only Kirby J so held. Gummow and Hayne JJ impliedly rejected this view, finding instead that only a law involving a ‘manifest abuse’ of the races power would be invalid (not merely a law that is not beneficial). Gaudron J suggested a middle ground, that the court would look to see that Parliament’s determination that a law was ‘necessary’ under the races power was reasonable in that it was appropriate and adapted. The remaining judges did not address the question. Accordingly, although the issue was not finally resolved, there was little support for the view that the Commonwealth’s power to regulate Aboriginal and Torres Strait Islander peoples under s 51(xxvi) is limited to beneficial laws. In any event, whether a particular law would be to the benefit of Aboriginal peoples could give rise to major differences of opinion. A law may on one view be thought to be for the better but subsequently turn [page 189] out to be for the worse, as the Stolen Generations policy (for example) clearly shows. It could be an embarrassment to the court to have to reach an independent judgment on such a question.

Hindmarsh Island Bridge case In 1994, there was a proposal to connect Hindmarsh Island in the lower reaches of the Murray River to mainland South Australia by a bridge, to give access to a marina development on the island. It became the subject of objection by some Ngarrindjeri people, who asserted the area was of cultural significance and that

the minister should prohibit the development by using his powers under the Aboriginal and Torres Strait Islander Heritage Protection Act 1984 (Cth). Accepting their claim that the site was an area where sacred women’s business was conducted, the minister prohibited construction of the bridge. His actions were then successfully challenged in the Federal Court. In between, there had been three separate inquiries into the validity of the women’s claim, two of which, one state and the other Commonwealth, did not substantiate the claim (although their findings remain strongly contested to this day). With further litigation on the cards, the Commonwealth Government amended the Heritage Protection Act to exclude the Hindmarsh Bridge area from its provisions, so that it no longer empowered the minister to prevent development there. The validity of the legislative amendment was challenged in the High Court. One of the main arguments was that the Commonwealth power gained by the referendum in 1967 only enabled the Commonwealth to pass laws for the benefit of Aboriginal peoples. The court held by majority that if Parliament amended the law for the benefit of Aboriginal peoples, it also had the power to withdraw the amendment, irrespective of whether the constitutional power only enabled it to legislate for the benefit of Aboriginal peoples. Only Kirby J (in dissent) found that Aboriginal peoples could only be subject to ‘beneficial’ laws under s 51(xxvi). [page 190]

Constitutional recognition Since the beginning of this century, moves have been afoot to ensure formal recognition of Aboriginal and Torres Strait Islander peoples in Australian constitutional documents.24 Following the 1967 referendum, the Constitution now makes no reference at all to Aboriginal and Torres Strait Islander peoples, despite their status as Australia’s first peoples and the fact they are one of the oldest civilisations on Earth. Thus far, the Constitutions of five states have been amended to recognise their Aboriginal (and, where appropriate, Torres Strait Islander) peoples: Victoria (2004), Queensland (2009), New South Wales

(2010), South Australia (2013) and Western Australia (2015). Proposals are afoot to do likewise in Tasmania. The Commonwealth has also passed, but only as an interim measure, the Aboriginal and Torres Strait Islander Peoples Recognition Act 2013 (Cth). Proposals to change the Constitution to recognise Aboriginal and Torres Strait Islander peoples remain under discussion. Possible changes that might be made include: •

removal of s 25 of the Constitution;

•

insertion of a statement which recognises Aboriginal and Torres Strait Islander peoples and their contribution to Australian life; and

•

replacement of the races power (s 51(xxvi)) with a power to make laws with respect to Aboriginal and Torres Strait Islander peoples, but which is subject to a prohibition on adverse discrimination. After nearly a decade of sporadic work on the proposal for constitutional recognition, the appropriate model for change to put to voters at a referendum was still under discussion in 2016.

1.

2.

3. 4. 5. 6. 7. 8.

J Summers, ‘The Parliament of the Commonwealth of Australia and Indigenous Peoples 1901–1967’ in G Lindell and B Bennett (eds), Parliament — The Vision in Hindsight, Federation Press, Sydney, 2001, pp 166–7. Commonwealth, Parliamentary Debates, House of Representatives, 13 February 2008, p 167. See Human Rights and Equal Opportunity Commission, Bringing Them Home: Report of the National Inquiry into the Separation of Aboriginal and Torres Strait Islander Children from Their Families (1997). In Kruger v Commonwealth (1997) 190 CLR 1; 146 ALR 126 (Stolen Generations case) the plaintiff challenged the validity of the Aborigines Ordinance 1918 of the Northern Territory under which they had been removed from their parents between 1929 and 1945. The High Court rejected the plaintiff’s argument that the law was contrary to an implied constitutional right to legal equality under Commonwealth laws. A Commonwealth law which did not operate uniformly throughout the land was not in breach of any constitutional requirement. Summers, note 1 above, p 173. Commonwealth, Parliamentary Debates, House of Representatives, 18 October 1951, pp 875–6. Note 4 above. (1889) 14 App Cas 286. (1889) 14 App Cas 286 at 291. See, for example, Blackburn J in Milirrpum v Nabalco Pty Ltd (Gove Island Land Rights) (1971) 17

9. 10.

11. 12. 13.

14.

15. 16.

17. 18. 19. 20.

21.

22. 23. 24.

FLR 141; [1972–73] ALR 65. (1992) 175 CLR 1; 107 ALR 1. The other three majority judges, also with elaborate reasoning, reached the same conclusion broadly in line with Brennan J’s approach but with some differences about its application. There was disagreement as to whether the Crown could extinguish native title simply by taking executive action inconsistent with it without exposure to a claim for compensatory damages. (1995) 183 CLR 373; 128 ALR 1. (1996) 187 CLR 1; 141 ALR 129 (Wik). Wik (1996) 187 CLR 1 at 122; 141 ALR 129 at 181. Toohey J’s reasoning means although the legislature may in fact have intended to grant the lessees exclusive possession subject to the reservations contained in their leases, it needed some specific wording to exclude native title rights. Kirby J also said it was not difficult to infer that Parliament had no intention to authorise a lessee to expel Aboriginal people from their land. It is open to serious question whether this was in fact the case. Gaudron J took an opposite view. Her Honour said there were so many reservations to be found in the 1910 law under which the leases were granted and in the leases themselves, that this was the strongest indication that a pastoral lease granted under the Act did not confer a right to exclusive possession. Summers, note 1 above, p 163. Declaration on the Granting of Independence to Colonial Countries and Peoples, resolution 1514 (XV) of 14 December 1960: see (viewed 26 July 2016). (1975) 135 CLR 337 at 388; 8 ALR 1 at 28. Mabo (1992) 175 CLR 1 at 31; 107 ALR 1 at 20. (1994) 182 CLR 45 at 47; 126 ALR 321 at 322. The High Court rejected out of hand a claim on behalf of the Wiradjuri tribe that it was a sovereign nation of people and owner of large tracts of land in New South Wales in Coe v Commonwealth (No 2) (1993) 118 ALR 193. For a discussion of Indigenous peoples and sovereignty, see G Williams, S Brennan and A Lynch, Blackshield and Williams Australian Constitutional Law and Theory: Commentary and Materials, 6th ed, Federation Press, Sydney, 2014, 4.48–4.71. R Wild and P Anderson, Ampe Akelyernemane Meke Mekarle/Little Children are Sacred: Report of the Northern Territory Board of Inquiry into the Protection of Aboriginal Children from Sexual Abuse 2007, Northern Territory Government, Darwin, 2007, p 12. Official Report of the Debates of the Australasian Federal Convention, Melbourne, 27 January 1898, p 227. Kartinyeri v Commonwealth (1998) 195 CLR 337; 152 ALR 540; [1998] HCA 22. See, for example, Expert Panel on Constitutional Recognition of Indigenous Australians, Recognising Aboriginal and Torres Strait Islander Peoples in the Constitution: Report of the Expert Panel, Commonwealth of Australia, 2012; Joint Select Committee on Constitutional Recognition for Aboriginal and Torres Strait Islander Peoples, Parliament of Australia, Final Report (2015) M Stubbs, ‘Refining the Model for Constitutional Recognition of Aboriginal and Torres Strait Islander Peoples’ (2015) 26 Public Law Review 150.

[page 191]

Part Four Commonwealth Legislative Powers

[page 193]

Chapter 16

Trade and Commerce 51. The Parliament shall, subject to this Constitution, have power to make laws … with respect to: (i) …

trade and commerce with other countries, and among the States;

The federal resolutions of Parkes and Barton and the extensive debates dealing with trade and commerce and the Commonwealth customs and excise powers leave no doubt that the founders were determined not to concede to the Commonwealth a power to deal with either intrastate trade or productive industry within a state. The debate on trade and commerce occupies about 280 pages of the Convention Debates. It overlapped in part with discussions about customs and excise duties, which are recorded in 470 pages. In comparison, the debate on all other Commonwealth legislative powers surprisingly accounts for only about 350 pages of the entire record of the Convention Debates. Section 98 of the Constitution declares that the trade and commerce power extends to ‘navigation and shipping, and to railways the property of any State’. As Quick and Garran pointed out,1 the reference to navigation and shipping added nothing to s 51(i) but was in effect declaratory.2 [page 194] The Commonwealth Parliament has frequently relied upon the power in s 51(i) to make laws affecting trade and commerce in diverse areas including the marketing of primary products, the control of shipping and aviation, the regulation of exports and imports, restrictive trade practices and the protection of the environment.

So far, the High Court has drawn a clear distinction between interstate trade on the one hand and intrastate trade on the other. In Wragg v New South Wales in 1953, Dixon CJ said: The distinction which is drawn between interstate trade and the domestic trade of a State … may well be considered artificial and unsuitable to modern times. But it is a distinction adopted by the Constitution and it must be observed however much inter-dependence may now exist between the two divisions of trade and commerce which the Constitution thus distinguishes.3

In 1976, the private airline Ansett challenged the validity of sections of the Australian National Airlines Act 1945 (Cth) which authorised the government airline TAA to carry passengers and freight between an intermediate stop at Port Hedland in Western Australia and Perth in the course of operating a commercial air service between Perth and Darwin. TAA did so in the interests of its profitability and as being only incidental to its operations between the two capital cities. The High Court held that the trade and commerce power did not allow the government airline to engage in intrastate transport between Port Hedland and Perth. However, under the territories power (see Chapter 22), the Commonwealth was able to authorise its airline to operate intrastate so long as the Port Hedland–Perth operation was necessary to be able to conduct the Darwin–Perth operation profitably, which a majority of the court held was the case. In so doing the court endorsed the view of the trade and commerce power expressed by Dixon CJ in Wragg’s case, even though the [page 195] Commonwealth was able to achieve the same result in this case under the territories power.4 The United States Supreme Court, interpreting the corresponding power,5 has not been similarly inhibited and has upheld federal laws operating on productive industry within a state or on intrastate commerce because the particular activity may have some effect on, or relevance to, interstate and foreign commerce (the ‘commingling’ doctrine). For example, a US federal law regulating the production of wheat to control the volume moving in interstate and foreign commerce so as to avoid a surplus and consequent abnormally low

prices was upheld.6 The US Supreme Court has also upheld the federal regulation of the conditions of workers engaged in cleaning the windows of a factory producing goods some of which entered the flow of interstate commerce.7 In 1964, it upheld a federal prohibition on racial discrimination in motels whose customers included interstate travellers.8 Arguably, the legalistic distinction adopted in Wragg’s case and applied in the Ansett case is out of touch with reality and it is possible that the High Court may at some stage take into account economic factors, but so far the weight of judicial authority is against this happening. A question would arise of course if it did as to how far the Commonwealth could enter the area of intrastate trade and commerce, as being incidental to the exercise of its power under s 51(i). The answer would require the court to make a judgment on the facts before it, but there is no novelty about that. The court has recognised that the express grant of a legislative power carries with it an implied grant of power to make the execution of the express power effective. In 1945 in Australian National Airways Pty Ltd v Commonwealth,9 the court held that the trade and commerce power [page 196] enabled the Commonwealth to establish its own airline for the interstate carriage of passengers and goods. As Dixon J observed, it was only by importing a limitation into the descriptive words of the power that such a law could be excluded.10 Other cases have followed suit.11 When the law enacted under s 51(i) is not on its face a law on the subject of interstate or overseas trade and commerce, its validity depends on the implied or incidental power. To fall within the scope of the implied or incidental power, there must be a real or sufficient connection between the law and the power, as distinct from an insubstantial, tenuous or distant connection. Whether this is satisfied or not will depend on its practical and legal operation. It cannot rest on a mere economic relationship. In O’Sullivan v Noarlunga Meat Ltd12 in 1954 the connection between the slaughter of stock within a state and overseas trade was

sufficient, however TAA’s reliance on increased profitability to support its intrastate air carriage in the 1976 Ansett case was not. Although the court has continued to reject a commingling approach to the trade and commerce power, the Commonwealth has been able in a limited way to regulate activities occurring wholly within a state before interstate or overseas trade commences. In the Noarlunga Meat case13 a federal law required the registration of slaughter houses engaged in the slaughter of meat for export. The purpose of registration was to ensure that only meat of a certain grade and quality should be exported. Noarlunga Meat did not itself engage in the export trade but it processed carcasses which could find their way to the export market. The law was upheld. The court held that the Commonwealth needed to exercise supervision and control of slaughter houses in order for Australia to meet the objective standards required for selling meat on overseas markets. [page 197] In 1965 in R v Anderson; Ex parte Ipec-Air Pty Ltd14 the court upheld a Commonwealth Prohibited Import Regulation which prohibited the importation of aircraft without the approval of the Director-General of the Department of Aviation. The plaintiff company wished to establish an air freight service in Australia, but the Director-General refused to grant it a permit. His reason for doing so was to protect the Commonwealth’s two-airline policy, one private operator and one government airline, from competition. In 1936 in R v Burgess; Ex parte Henry15 (the Goya Henry case), the court held to be invalid s 4 of the Air Navigation Act 1920 (Cth), which enabled the Governor-General to make regulations for the control of air navigation in the Commonwealth. The provision made no distinction between intrastate and interstate air navigation. Dixon J expressed the view that he was later to repeat in Wragg’s case. His Honour said that the inconvenience of maintaining a distinction between intrastate and interstate air travel needed no demonstration, but that ultimately: The express limitation of the subject matter of the power to commerce with other countries and

among the States compels a distinction, however artificial it may appear, and whatever interdependence may be discovered between the branches into which the Constitution divides trade and commerce.16

Air transport was not far from its infancy in 1936, but between Goya Henry in 1936 and the 1960s, commercial air transport had become a major form of transport within Australia and internationally. Commercial aviation is well suited to Australian conditions, and by 1963 the industry as a whole was booming both domestically and internationally. Between these years, commercial aircraft grew rapidly in size and speed, and international operations shared the same controlled air space, airports and air navigation facilities as aircraft operating domestically. [page 198] The provisions of the Air Navigation Act 1920 (Cth) that were struck down in the Goya Henry case in 1936 were applicable to aviation generally, including intrastate operations. It was not until 1964 that the Air Navigation Regulations 1947 (Cth) were amended to once again apply to intrastate operations. This set up a potential inconsistency with state laws applicable to intrastate carriage such as the Air Transport Act 1964 (NSW) which also required a commercial air carrier operating in that state to be licensed. Airlines of New South Wales had been operating a licensed air service between Sydney and Dubbo within the state, but its licence was cancelled under a rearrangement of intrastate commercial air carriage. The company appealed to the High Court in Airlines of New South Wales Pty Ltd v New South Wales (No 2) in 1965,17 claiming the state licensing law to be inconsistent with the Commonwealth regulations. The first issue before the court was whether the federal regulations applying to aviation generally were valid laws. The court held that, in the interest of air safety and regularity of air services, the regulations were valid. As Barwick CJ said, ‘the safety of air operations in Australia does not admit of any distinction being drawn between aircraft engaged in intra-State trade and those in inter-State or international air operations’.18 The court also referred to the Chicago Convention of 1944 to which Australia was an original party. The Convention

established the International Civil Aviation Organisation (ICAO), which over the years developed a comprehensive set of air navigation rules which member countries, such as Australia, were required to implement. Although the court could have relied on the external affairs power (s 51(xxix)), it was only necessary to invoke the trade and commerce power. In upholding the Commonwealth’s entry into intrastate aviation, the court made it clear, however, that the American commingling doctrine [page 199] had no place in the Australian federal system. The court maintained that its decision rested on considerations of safety, rather than any economic connection between intrastate and interstate air operations. The court held further that Airlines of New South Wales needed to have both a federal and a state licence in order to fly on the Sydney–Dubbo route. The trade and commerce power has produced some good examples of the High Court’s characterisation of Commonwealth laws. Where it is plain that the law has a direct operation on interstate or overseas trade and commerce, the motive, purpose or ulterior object of the law will not affect its validity. As long as the law answers that description, it does not matter that it may equally be described as a law with respect to some other matter whether or not it was within Commonwealth power.19 In Murphyores Incorporated Pty Ltd v Commonwealth,20 the plaintiff was engaged in mining on the pristine sands of Fraser Island in Queensland. Federal Customs Regulations made under the Customs Act 1901 (Cth) required the plaintiffs to obtain ministerial approval to export zircon and rutile concentrates. On seeking approval, the company was informed that a decision had to wait pending an inquiry under the Environment Protection (Impact of Proposals) Act 1974 (Cth). The plaintiffs unsuccessfully challenged the validity of the legislation. Mason J said: It is one thing to say that the trade and commerce power does not enable the Commonwealth to regulate and control directly matters standing outside the subject matter of power, such as the

environmental aspects of mining in Queensland. It is quite another thing to say that the Commonwealth cannot in the exercise of that power make laws which have a consequential and indirect effect on matters standing outside the power, even by means of prohibiting conditionally engagement in trade and commerce with other

[page 200] countries. It is no objection to the validity of a law otherwise within power that it touches or affects a topic on which the Commonwealth has no power to legislate.21

Section 92 Section 92 of the Constitution declares that ‘trade, commerce, and intercourse among the States … shall be absolutely free’. The section applies to any law or executive action by either the states or the Commonwealth, and for many years it has bedevilled all governments at one time or another, for example, by giving road transport the right to engage in interstate operations subject only to contributing reasonable sums towards the costs of maintaining the roads. In the ANA case22 in 1945 the court held that although the Commonwealth could run its own airline, s 92 precluded it validly giving the airline a monopoly over interstate transportation, as the Australian National Airlines Act 1945 (Cth) attempted to do. In 1988, the court overturned earlier tests to determine whether s 92 was infringed and enunciated a new test of more limited application. In Cole v Whitfield23 the court held that in order for a law to infringe s 92 it had in the first instance to discriminate against interstate trade and commerce. If it did, the discrimination had to be of a protectionist character otherwise the section was not infringed. Section 92 of the Constitution is discussed in detail in Chapter 23. Currently any air operator capable of satisfying all the requirements of the regulatory system created under the Air Navigation Act 1920 (Cth) may conduct interstate operations, so s 92 has little application in the aviation area. [page 201]

Prohibition on preference Section 99 states that the Commonwealth shall not ‘by any law or regulation of trade, commerce, or revenue, give preference to one State or any part thereof over another State or any part thereof’. The section confirms the founders’ determination to create common market conditions throughout the Commonwealth. Section 100 further states that the Commonwealth ‘shall not, by any law or regulation of trade or commerce’ abridge the right of a state to the reasonable use of the waters of rivers for conservation or irrigation. In Morgan v Commonwealth in 194724 the High Court held that s 99 applied only to laws that could be made under the trade and commerce power and not to laws made under other powers such as the defence power. The court also said, obiter dictum, that ss 98 to 102 should be read as applying only to laws which could be made pursuant to s 51(i). The question arises, however, whether a law made under another legislative power, for example, the corporations power, which could be almost but not entirely made under the trade and commerce power still remains outside s 98. Morgan’s case was approved by the court in 1983 in the Tasmanian Dam case25 in the course of considering whether a Commonwealth Act to conserve world heritage by preventing the building of the Gordon below Franklin Dam infringed Tasmania’s rights under s 100. The court held that the World Heritage Properties Conservation Act 1983 (Cth) was not a law with respect to trade and commerce.

Declining significance of the trade and commerce power Since 1971, the corporations power in s 51(xx) of the Constitution has emerged as a major source of Commonwealth legislative power, and the trade and commerce power has ceased to occupy centre stage in the [page 202]

Commonwealth’s economic armoury. Under s 51(xx), the Commonwealth may regulate the conditions on which the corporations it identifies can carry on business. Those corporations are foreign corporations and Australian trading and financial corporations. Commercial civil aviation in Australia is almost entirely in the hands of those corporations. Nevertheless the trade and commerce power remains relevant in some areas, for example, in regard to the import and export of goods and services. The power could stage a modest revival if the High Court were to reverse some previous decisions, particularly those in which the American commingling doctrine was rejected, and allow the Commonwealth to regulate or participate in intrastate trade and commerce where that trade had a substantial economic impact on interstate or overseas trade and commerce. However, there is little indication that the court is minded to expand the scope of Commonwealth power under s 51(i). In Pape v Commissioner of Taxation in 2009,26 three Justices rejected the claim that the Tax Bonus for Working Australians Act (No 2) 2009 (Cth) could be supported by the trade and commerce power merely because increased economic activity would promote interstate or overseas trade. Such an expansion of power would of course mean a further inroad into state legislative power, but it would not obliterate the distinction between interstate and intrastate trade. However, even if a more liberal interpretation of the trade and commerce power were to be embraced by the High Court, it would still be unlikely to replace the corporations power as the stellar performer among the Commonwealth’s enumerated legislative powers.

1. 2.

3. 4.

J Quick and R Garran, The Annotated Constitution of the Australian Commonwealth, Angus & Robertson, Sydney, 1901, p 873. Section 102 of the Constitution states in substance that the Commonwealth Parliament may by any law of trade and commerce forbid any state railways from engaging in any preferential or discriminatory action which the Inter-State Commission has found to be undue, unreasonable or unjust. The Commission no longer exists and the section is a dead letter. If the Commission were to be revived, s 102 would be unlikely to attract any action on the part of the Commonwealth. (1953) 88 CLR 353 at 385–6; [1953] ALR 583 at 585–6 (Wragg’s case). 194 Attorney-General (WA) (ex rel Ansett Transport Industries (Operations) Pty Ltd) v Australian National Airlines Commission (1976) 138 CLR 492; 12 ALR 17 (Ansett case).

5. 6. 7. 8. 9. 10. 11. 12. 13. 14. 15. 16. 17. 18.

19. 20. 21. 22. 23. 24. 25. 26.

United States Constitution, Art 1, §8 includes a federal power ‘[t]o regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes’. Wickard v Filburn (1942) 317 US 111. Martino v Michigan Window Cleaning Co (1946) 327 US 173. Heart of Atlanta Motel v United States (1964) 379 US 241. (1945) 71 CLR 29; [1946] ALR 1. The Commonwealth’s establishment of a government shipping line was upheld in Australian Coastal Shipping Commission v O’Reilly (1962) 107 CLR 46; [1962] ALR 502. The amplitude of the Commonwealth’s express legislative powers was accepted as early as 1904 in D’Emden v Pedder (1904) 1 CLR 91; 10 ALR (CN) 30. (1954) 92 CLR 565; [1955] ALR 82 (Noarlunga Meat case). (1954) 92 CLR 565; [1955] ALR 82. (1965) 113 CLR 177; [1965] ALR 1067. (1936) 55 CLR 608; [1936] ALR 482. (1936) 55 CLR 608 at 672; [1936] ALR 482 at 504. (1965) 113 CLR 54; [1965] ALR 984. (1965) 113 CLR 54 at 92; [1965] ALR 984 at 999. This view was quoted with approval in Airservices Australia v Canadian Airlines International Ltd (1999) 202 CLR 133 at 174–5; 167 ALR 392 at 411; [1999] HCA 62 at [80]. See Actors and Announcers Equity Association v Fontana Films Pty Ltd (1982) 150 CLR 169 at 192; 40 ALR 609 at 624 per Stephen J. (1976) 136 CLR 1; 9 ALR 199. (1976) 136 CLR 1 at 22; 9 ALR 199 at 214. Australian National Airways Pty Ltd v Commonwealth (1945) 71 CLR 29; [1946] ALR 1 (ANA case). (1988) 165 CLR 360; 78 ALR 42. (1947) 74 CLR 421; [1947] ALR 161 (Morgan’s case). Commonwealth v Tasmania (1983) 158 CLR 1; 46 ALR 625. (2009) 238 CLR 1; 257 ALR 1; [2009] HCA 23.

[page 203]

Chapter 17

The Taxation Power 51. The Parliament shall, subject to this Constitution, have power to make laws … with respect to: … (ii) taxation; but so as not to discriminate between States or parts of States; …

Section 51(ii) of the Constitution accords the Federal Parliament a general power to make laws with respect to taxation, unlimited with respect to subject matter, and it probably ranks as the Commonwealth’s single most potent weapon in ensuring its uncontested supremacy in the Australian federal system. Coupled with the power under s 96 to grant financial assistance to the states on such terms and conditions as it thinks fit, the taxation power has allowed the Commonwealth to dominate the states and implement Commonwealth policies on subjects of traditional state authority, such as education, roads and housing. In 2013–14, Commonwealth taxation revenue was over $351 billion compared with total revenues from taxes imposed by the states of less than onefifth of that amount, at $68.7 billion,1 leaving the states crucially dependent on Commonwealth funding for the maintenance of state functions.

Characterisation Despite the fact that s 51(ii) reads as though it is a purposive power, enabling the Commonwealth to raise revenue to finance its operations, the High Court [page 204] has always treated it as a power to legislate on a subject. Thus, the initial test of

validity of a law passed by the Commonwealth in reliance on the taxation power is whether it shows that there is a real connection between the power and its exercise. In most cases this is straightforward, as the law imposes a payment of a tax, or relief from a payment. This has important consequences for the Commonwealth because in these circumstances the tax power may be utilised to finance policies or for other purposes which do not fall directly within the ambit of any of the Commonwealth’s specific legislative powers. From time to time, individual judges have stated that the use of the power for overtly political ends is not an issue for the court to be concerned about and that the court will have nothing to do with the wisdom or expediency of the legislation.2 If the law can reasonably be described as a law with respect to taxation it does not matter that it can also be described as a law with respect to something else. The Commonwealth has made use of its taxation power, blunt though the instrument may be, to compensate for its lack of a set of economic powers to deal with a much expanded economy which now requires management on a national basis. In Moore v Commonwealth in 1951,3 the High Court considered a legislative scheme designed to combat inflation related to the unusually high wool prices in the years following World War II. The scheme subjected wool producers to a scale of deductions from the proceeds of wool sales to be credited against their liability for income tax and provisional tax during that year. The court upheld the validity of the law under the taxation power. In Fairfax v Commissioner of Taxation in 1965,4 a law making income from superannuation funds liable to federal income tax, with an exemption for income received from investments in public securities, including Commonwealth securities, was upheld as a law with respect to taxation, [page 205] even though the political object or motive was to encourage investment in public securities.

In 1996 in Leask v Commonwealth5 the plaintiff argued that the Financial Transaction Reports Act 1988 (Cth) was not appropriate and adapted to the purpose of collecting tax. The Act required persons who carried on business as cash dealers, upon pain of committing a criminal offence, to report to a nominated official certain transactions involving the transfer of cash sums of $10,000 or more. The object of the measure was to curtail the avoidance of income tax through cash transactions. The argument failed. A full court of seven judges held that the Commonwealth had power to pass the Act by virtue of the currency, coinage and legal tender power in s 51(xii) of the Constitution. Three judges also held that the taxation power was sufficient to validate the law. The seven judges were of one mind in rejecting the plaintiff’s argument that the two powers were to be interpreted according to the ‘appropriate and adapted’ formula also known as the concept of proportionality, by which the court has tested legislation that relies for its validity on one of the purposive powers granted to the Commonwealth by the Constitution.

Non-discrimination and the prohibition of preferential treatment The taxation power contains its own inherent limitations by precluding the Commonwealth from discriminating between states or parts of states. Further, s 99 prohibits the Commonwealth from giving preference by any law of revenue, among other things, to one state or part of a state over another state or a part of a state. Obviously, to fix different rates of the federally imposed goods and services tax for different states would amount to discrimination, but it does not follow that a Commonwealth tax should have a uniform operation. For example, a tax on the mining of a particular mineral would be valid even [page 206] if the mineral were only mined in one state. As Higgins J observed in 1928 in

James v Commonwealth,6 the Commonwealth law under consideration operated unequally because of inequality of conditions existing in the states, but this did not amount to a discrimination or preference between states. Nevertheless, judicial opinion has differed on whether a federal tax which is on its face uniform but has a non-uniform operation may amount to discrimination. In Conroy v Carter in 1968,7 a Commonwealth Act for the collection of a levy in each state required commercial poultry owners to file relevant information with their state egg board and allowed the Commonwealth to enter into arrangements for the collection of the levy in each state, which had the effect of favouring poultry owners in states which had made such an arrangement with the Commonwealth. Conroy failed to provide the required information, but argued that the Commonwealth law could discriminate between states in circumstances in which the Commonwealth had made arrangements with some states but not with others. The Commonwealth argued that any lack of uniformity in the operation of the federal Act did not render it discriminatory. Conroy’s challenge succeeded, but only on a split decision of a court of six with the Chief Justice casting the deciding vote. The limitations on the taxation power in ss 51 and 99 amount to much the same thing. As Dixon J observed in Elliott v Commonwealth,8 without discrimination between states or parts of states it is difficult to see how one could be given preference over the other. In the same case, Latham CJ observed that preference necessarily involves discrimination but discrimination does not necessarily involve preference.9 On this footing, the exact relationship between the two restrictions is not important and s 99 adds little if anything to the limitation in s 51(ii). The question is really whether the facts show that the practical operation of a tax, uniform on its face, constitutes such a serious impediment to a state [page 207] as to amount to discrimination, or conversely whether the advantages are of such a significant character as to amount to a preference to a state contrary to s 99.

Until fairly recent times, in the cases on discrimination the High Court has generally approached the meaning of the expression without regard to its practical operation. In Cameron v Deputy Federal Commissioner of Taxation (Tas) in 192310 federal income tax regulations specified values to be assigned to livestock in calculating the profits made on their sale. The regulations valued stock at different levels in different states, suggesting that there was discrimination. The Commonwealth argued that the regulations specified fair values for the different types of livestock, but the court held that this had no bearing on whether the legislation was discriminatory. According to Isaacs J: It does not matter whether those legal standards are arbitrary or measured, whether dictated by a desire to benefit or to injure, the simple fact is they are ‘different’, and those different legal standards being applied simply because the subject of taxation finds itself in one State or the other, there arises the discrimination by law between States which is forbidden by the Constitution.11

More recently, there was a departure from the traditional attitude to the meaning of ‘discrimination’ in a case involving that word as used in s 117 of the Constitution. Section 117 states that a resident in one state cannot be made subject in another state to any ‘disability or discrimination’ which would not apply equally to him if he resided in the other state. In 1989 in Street v Queensland Bar Association12 the plaintiff, a resident and practising barrister in New South Wales, applied for admission in a similar capacity to the Supreme Court of Queensland. Under the Rules governing admission at the time, he was required to be a resident of Queensland and to cease practice in New South Wales. After the proceedings began, the Queensland [page 208] Rules were modified to require an out-of-state applicant for admission to have an intention to practise principally in Queensland. According to the Rules, a barrister could be admitted conditionally for one year and be eligible for final admission if, at the end of that year, he or she had practised principally in Queensland during that time. This would have required the plaintiff to give up practice in New South Wales. There was no obvious appearance of

discrimination since all barristers practising in Queensland had to be residents of the state irrespective of where they gained their legal qualifications. In reality, however, Street was under the disability that he would have to relinquish practice and residence in New South Wales in order to satisfy the Queensland requirements. The High Court, consisting of all seven judges, unanimously held that the rules were inapplicable to the plaintiff to the extent that they required him to have an intention to practise principally in Queensland and to practise that way in the period between conditional and absolute admission. According to Brennan J, s 117 did not require the plaintiff to show that the character of the law was discriminatory. The material fact was the impact that the state law had on him in applying for admission. McHugh J said that the section required a comparison between the actual position of an interstate resident and his or her hypothetical position as a resident in the legislating state. In Street’s case, the plaintiff was worse off because he was an out-of-state resident. Mason CJ stated that it was enough that the plaintiff was subjected to either a disability or discrimination, by whatever means this was brought about by state law.13 The approach to discrimination in Street’s case was adopted by the High Court in Permanent Trustee Australia Ltd v Commissioner of State Revenue14 in 2004. The court found no discrimination arose from the Commonwealth Places (Mirror Taxes) Act 1998 (Cth), because although [page 209] the Act did result in different taxation regimes applying in different Commonwealth places (because it picked up the different state taxation regimes according to which state the Commonwealth place was located in), ‘[t]he differential treatment and unequal outcome that is involved here is the product of distinctions that are appropriate and adapted to a proper objective’.15 A similar approach was taken in Fortescue Metals Group Ltd v Commonwealth in 2013,16 in finding that there was no discrimination in the operation of the minerals resource rent tax, which permitted companies subject to it to reduce

the tax payable by the amount of any royalties already paid to a state (and which, because of differing rates of state royalties, resulted in different tax being payable to the Commonwealth by miners in different states). Hayne, Bell and Keane JJ held that ‘a law is not shown to discriminate between states by demonstrating only that it will have a different practical operation in different states because those states have created different circumstances to which the federal Act will apply’.17 An argument of impermissible preference under s 99 was rejected in 2015 in Queensland Nickel Pty Ltd v Commonwealth.18 The plaintiff had claimed that, although the Clean Energy Regulations 2011 (Cth) applied equally on their terms to producers anywhere in Australia, their operation resulted in a practical disadvantage to nickel producers in Queensland compared to Western Australia. The court dismissed this claim, noting that whatever practical difficulties arose for producers in Queensland occurred as a result of ‘natural, business and other circumstances as between the States of production’ not any discrimination or preference by the law imposing taxation.19 [page 210] The change in attitude in Street’s case will probably be reflected in any future cases involving discrimination and preference in ss 51(ii) and 99. This would be consistent with the founders’ intention that members of the Australian community should be free to move anywhere in the federation and not be confronted by state-imposed restrictions which not only hamper freedom of movement but constitute a barrier to the freedom of trade and commerce.

‘Between States or parts of States’ In Elliott v Commonwealth in 1936,20 the High Court considered federal transport regulations which required seamen at certain ports to be licensed. The ports were Sydney, Melbourne, Brisbane, Newcastle and Port Adelaide. The regulations did not specify any ports in Western Australia and Tasmania. Elliott, a seaman who lived in Sydney, sought to stop the Commonwealth from

enforcing the license system on the basis that it gave a preference to Western Australia and Tasmania contrary to s 99. The court was of one mind that in order to amount to a preference, the federal law had to offer a tangible commercial advantage, which in the present case it did not. A majority of the court headed by Latham CJ further decided that the legislation would not infringe s 99 unless states or parts of states are selected by virtue of their character as states or parts of states. In Elliott, the transport regulations only identified localities, which although they were parts of states were not on their face chosen because they were parts of states. Dixon J expressed a minority view. His Honour said s 99 prohibits granting one state or part of a state a tangible advantage over another and if the law has this effect it does not matter whether the law selected an area for the bestowal of preference upon that area or whether it identified an area ‘as part of a State’ for the same purpose. Surprisingly, the difference in view between the majority and minority judges has not [page 211] yet been formally resolved. Eventually it is more likely that the Dixon approach will prevail.21

What is a tax? Cases requiring the High Court to address the meaning of ‘taxation’ have not arisen from any question about the ambit of Commonwealth power, as most challenges to federal legislation do, but rather because it is claimed that a particular Commonwealth or state law imposes taxation contrary to some constitutional provision. For example, a state law would be invalid if it imposes a tax that amounts to a duty of excise (which only the Commonwealth can impose). Or a Commonwealth law dealing with matters other than the imposition of a tax would contravene s 55 of the Constitution if it also imposes a tax.

In 1938 in Matthews v Chicory Marketing Board (Vic), Latham CJ defined tax as ‘a compulsory exaction of money by a public authority for public purposes, enforceable by law, and not a payment for services rendered’.22 Fifty years later in Air Caledonie International v Commonwealth,23 a unanimous High Court held that a law that conformed to Latham CJ’s description could be properly characterised as a tax, but it also decided that it was not an exhaustive definition of a tax. The case arose through a challenge to a section of the Migration Act 1958 (Cth) inserted with effect from 1 January 1988, which provided that a passenger travelling to Australia on an overseas flight should pay a fee for his or her immigration clearance. Air Caledonie was required to pay the fee whether or not it was collected from the passenger. The Commonwealth argued that the fee was [page 212] a payment for services received from the government. However, the court rejected that argument on the basis that an Australian citizen had a right to reenter the country without any need of a clearance, even though this could be required of non-Australian citizens. The court held that the Commonwealth’s imposition therefore amounted to a tax,24 and that: If the person required to pay the exaction is given no choice about whether or not he acquires the services and the amount of the exaction has no discernable relationship with the value of what is acquired, the circumstances may be such that the exaction is, at least to the extent that it exceeds that value, properly to be seen as a tax.25

A compulsory exaction A tax does not have to be compulsory in form, if the person liable to pay does not have a real option of refusal. For example, in Air Caledonie a returning citizen did not have a real choice when the result of a refusal to pay the tax meant foregoing the opportunity to enter Australia. In Attorney-General (NSW) v Homebush Flour Mills Ltd,26 a state compulsory acquisition scheme for flour expropriated flour from millers at a specified price

and also gave the millers a first option to buy their flour back at a higher price. If they did not, they were required to store the flour until it was sold by the state. The purpose of the scheme was to subsidise the growing of wheat in New South Wales. The court held that the effect of the law, as distinct from its form, had to be taken into account. Millers who [page 213] sought to avoid payment would suffer the burden of having to hold their flour stocks, at their own expense. Therefore, the court held that the scheme imposed an excise duty contrary to s 90 of the Constitution. Who may collect a tax In Air Caledonie, the court held that a compulsory exaction of money under statutory powers could amount to a tax even though it was not exacted by a public authority or for public purposes. In Australian Tape Manufacturers Association Ltd v Commonwealth in 1993,27 an amendment to the Copyright Act 1968 (Cth) imposed a royalty charge on vendors of blank tapes with a view to compensating record companies and performing artists for losses resulting from the unauthorised duplication of their sound recordings. The royalty was payable to a company the members of which were copyright owners and the money so received was distributed to them. The court in a four to three majority decision held that the law imposed a tax, in contravention of s 55 of the Constitution.28 A similar approach was taken in 2011 in Roy Morgan Research Pty Ltd v Federal Commissioner of Taxation,29 where the Superannuation Guarantee Charge Act 1992 (Cth) was upheld as a law imposing taxation, even though the tax was imposed only where an employer had failed to make a compulsory superannuation payment, and notwithstanding that the Commissioner of Taxation was obliged to transfer an amount equal to the tax raised to the employee’s superannuation fund. However, in Luton v Lessels in 2002,30 where an obligation to pay child support to the person caring for a child could be substituted with an obligation to

[page 214] pay the same amounts to the Commonwealth and a corresponding right of the person caring for the child to be paid any amounts the Commonwealth can recover, the court held that this was not a form of taxation because of the close correspondence between the debt to the Commonwealth and the prior debt to the person caring for the child.

The Commonwealth cannot tax state property and vice versa Section 114 prohibits the Commonwealth from imposing any tax on property of any kind belonging to a state. Correspondingly, s 114 also prohibits a state from, without the consent of the Commonwealth Parliament, imposing any tax on property of the Commonwealth. Obviously, therefore, the Commonwealth cannot impose a capital gains tax on property owned by a state. No state has yet asked the Commonwealth Parliament to consent to it imposing a tax on Commonwealth property. According to the High Court, at least three kinds of issues may arise under s 114: first, what is meant by ‘tax on property?’; second, what is meant by ‘property … belonging to a State?’; and third, how is ‘State’ to be understood?31 In the Steel Rails case in 1908,32 the court upheld the states’ obligation to pay customs duty on steel rails they imported, for the reason that the duty was paid on the act of importation and not the ownership of goods. Since then, there have been an assortment of cases on what amounts to a tax on property in which a distinction is drawn between a tax on a transaction and a tax on property. For example, it has been held that a tax on the use or occupation of land owned by a state or the Commonwealth is a tax on property, but a tax imposed on income derived from the property would not be a tax on property. The imposition of stamp duty on a property transaction is not a tax on property, but a sales tax on goods owned and used by a state instrumentality has been held to be a tax on ownership.33

[page 215] According to the court in SGH Ltd v Commissioner of Taxation in 2002, the definition of state (or Commonwealth) is not to be determined by asking whether an entity is entitled to Crown privileges or immunities. The court noted that state instrumentalities may be entitled to immunity from taxation if the legal relationship between the entity and the executive government of the state shows that the latter has extensive control over the use and disposal of property held by the entity.34

A tax must not be arbitrary The distinction between a tax and arbitrary exaction was explained in a unanimous joint judgment of the court as follows: [L]iability can only be imposed by reference to ascertainable criteria with a sufficiently general application and … the tax cannot lawfully be imposed as a result of some administrative decision based upon individual preference unrelated to any test laid down by the legislation.35

Fines and other financial penalties also do not amount to taxes because, as the court has explained, they only operate where there has been a ‘failure to discharge antecedent obligations on the part of the person on whom the exaction falls’.36

Taxation and the grants power in s 96 Section 96 of the Constitution reads: During a period of ten years after the establishment of the Commonwealth and thereafter until the Parliament otherwise provides, the Parliament may grant financial assistance to any State on such terms and conditions as the Parliament thinks fit.

[page 216] Operation of the section Section 96 owes its inclusion to agreement at the premiers’ conference in 1899

after the Convention Debates had ended. It was intended to compensate in part the less populous states for limiting the Braddon clause to 10 years of certain operation, to mitigate the inflexible arrangements of the distribution clauses for customs and excise revenues and, finally, to avoid uniform but excessive tariffs in order to enable the needier states to obtain sufficient revenue. The section bears the initial appearance of being an ephemeral clause because its operation is limited to 10 years and thereafter until Parliament otherwise provides. As Dixon CJ observed in the Second Uniform Tax case in 1957,37 either the power is terminated or it continues, since it confers a bare power of appropriating money to a purpose and of imposing conditions. A question remains as to whether a termination of the power by parliamentary action would mean permanent and final discontinuance of the operation of s 96. The High Court has contented itself with treating the section as a permanent provision. Politically speaking, no federal government is likely to bring s 96 to an end.38 During the Convention Debates on the proposal in 1898 in Melbourne, several members said that the assistance might take the form of a straight out appropriation of Commonwealth revenue, although the premiers seemed to have contemplated that the power was to enable the Parliament to deal with exceptional circumstances affecting the financial position of any state. A grant for financial assistance may be either outright or by way of loan. The Privy Council suggested in 1940 in Moran v Deputy Federal Commissioner of Taxation (NSW)39 that there could possibly be cases in which the Commonwealth attempts to effect outcomes by linking requirements to [page 217] purported grants of assistance, pursuant to s 96, which are in reality beyond the scope of the power that section confers. However, the history of s 96 in the courts makes it plain that there are few, if any, limits to conditions the Commonwealth might attach to a grant, and that such a grant may be made in relation to a subject matter or for a purpose not within the legislative powers of the Federal Parliament.40

Early challenge to the power Since 1923, the Commonwealth has pursued a policy of making grants to all states under the section for road construction and maintenance. In 1926, in Victoria v Commonwealth (Federal Roads case),41 two states sought a declaration that the Federal Aid Roads Act 1926 (Cth) was invalid. The Act authorised the Parliament to make agreements with the states regarding roads, with financial assistance allocated according to a state’s population and area. The court threw out the challenge in peremptory fashion, stating: It is plainly warranted by the provisions of s 96 of the Constitution, and not affected by those of s 99 or any other provisions of the Constitution, so that exposition is unnecessary.42

Flour tax scheme 1938 The purpose of this scheme was to assist the wheat-growing industry, which at that time was in a depressed condition. Just before World War II, [page 218] the Prime Minister and the state premiers agreed that wheat growers should be assisted by a guaranteed prices scheme to operate on local wheat sales. The scheme was to be financed by imposing a tax on flour to be sold in Australia for home consumption. The Commonwealth imposed an excise tax on flour millers. From the revenue received, it made grants to the states under s 96 of the Constitution, to distribute it among their wheat growers. Tasmania, however, did not grow sufficient wheat for its own consumption and imported wheat from the other states. Since the federal grants were given to the states in proportion to the quantities of wheat they produced, the result would have been that the people of Tasmania would have had to bear the excise duty, yet the state would have received little in return because of its small wheat production. Thus, since the Commonwealth was required by s 51(ii) to impose its excise tax uniformly without discrimination between states, Tasmania would be helping to subsidise wheat growers in the mainland states. It was agreed, therefore, that the revenue collected from Tasmania should be returned to the state in the form of a

grant under s 96 to be distributed by the state to the millers who paid the tax. The scheme was upheld.43 Uniform taxation Before World War II, the states and the Commonwealth each imposed income tax, but in 1942 at the height of the war the Commonwealth manufactured a scheme of uniform income taxation under which only the Commonwealth imposed income tax. The Income Tax Act 1942 (Cth), coupled with the Income Tax Assessment Act 1942 (Cth), provided for the imposition and collection of very high rates of income tax amounting to as much as 18 shillings in the pound, to help defray the costs of war. A third Act, the States Grants (Income Tax Reimbursement) Act 1942 (Cth) provided for grants of financial assistance under s 96 of the Constitution [page 219] to each of the states according to a formula based on their previous income tax collections, on the condition that they did not impose income tax themselves. In reality, the rates of federal taxation were so high that it would have been politically impossible for the states to continue to impose income tax regardless. The Commonwealth sought to reinforce its position under the Income Tax Assessment Act 1942 (Cth) by giving priority to the payment of federal tax over a lawful obligation to pay state income tax in order to ensure revenue for the ‘efficient prosecution of the present war’. A fourth Act, the Income Tax (Wartime Arrangements) Act 1942 (Cth), transferred state taxation collection facilities, including staff, to the Commonwealth. Four states challenged the validity of the legislative scheme in 1942 in South Australia v Commonwealth (First Uniform Tax case)44 before a court of five judges. The principal argument for the plaintiffs was that the Acts together constituted a scheme to exclude the states from their constitutional right to impose income tax. The court held, with some minor dissent, that the legislative scheme was valid. The court considered the validity of each of the four Acts

separately. According to the court, the imposition of uniform rates of taxation by the Commonwealth did not infringe s 51(ii) or s 99, and the revenue from taxation lost its identity upon being paid into the Consolidated Revenue Fund as required by s 81 of the Constitution. The Grants Act operated as a separate law appropriating moneys from the Consolidated Revenue Fund for the purpose of granting financial assistance to the states on conditions determined by the Parliament. Although the court acknowledged that a state could not be compelled to accept a Commonwealth grant, it closed its eyes to the fact that the states in reality had no option but to participate in the scheme. In 1957, in the Second Uniform Tax case,45 the court reconsidered the Commonwealth scheme free from the wartime context in which the First Uniform Tax case was litigated. The court confirmed its earlier decision, [page 220] except in relation to one matter. It held that it was not incidental to the federal power of taxation to forbid the payment of state income tax until federal income tax was paid. The earlier decision on that point was not followed because the court was of the view that it had received no support in any previous decisions, and involved an unwarranted extension of the scope of the constitutional doctrine of incidental powers. The Second Uniform Tax case opened the way legally for the states to resume income tax if they wished and Prime Minister Menzies indicated that the Commonwealth would not attempt to place obstacles in the way of the states resuming income tax. However, it suited the Commonwealth to maintain the entire scheme on foot in view of the growth of the functions of the Commonwealth after World War II. Moreover, no one state or group of states can afford to withdraw from the uniform tax scheme because Commonwealth rates of taxation cannot discriminate between states under s 51(ii) and thus no allowance can be made in the imposition of the rates of federal taxation for the fact that a state does not participate in the scheme. It is a case of all the states having to agree to

withdraw, or all will remain parties to the federal scheme.

Use of taxation power to achieve policy objectives It is common knowledge that the ability of the Commonwealth to select any subject for the imposition of taxation and to make grants of financial assistance to the states has allowed it to assume outright financial ascendancy in the federation. Nevertheless, the taxation power serves to illustrate the inadequacy of Commonwealth powers to deal with the general state of health of the economy. As early as 1959, after little more than half a century of federation, the Federal Parliament’s Joint Committee on Constitutional Review commented: When the Constitution was drafted, no government in Australia was responsible for the general state of the economy, including the level of employment, stability of the value of the currency and rate and balance of economic development. It was not until many years after Federation that the achievement of economic standing had made the factors determining these

[page 221] matters sufficiently clear for government to take action. It was not surprising in these circumstances that the Constitution was not concerned with the allocation between the Commonwealth and the States of the powers needed to implement a general economic policy … the Commonwealth now had to discharge a responsibility of government which did not exist when the Constitution was originally framed, namely, to safeguard and promote the economic welfare of the community and Australia.46

In the second half-century of federation, events at home and abroad further strengthened the demand for the Commonwealth to initiate and implement action to stabilise the economy and enhance its development. For this purpose the Commonwealth has made repeated use of the taxation power, blunt instrument though it is. In 1965 in Fairfax v Federal Commissioner of Taxation,47 Kitto J pointed out that whether a law is a valid exercise of the taxation power is to be determined by reference to the nature of the rights, duties, powers and privileges which it changes, regulates or abolishes. Whether a law would be upheld as an exercise of the power was a question of whether in its true nature and character the law was

in real substance a law with respect to taxation. If the law was sufficiently connected to the power, the court would not be concerned with the policy of the law. In Fairfax a Commonwealth law deprived superannuation funds of an exemption from income tax that they previously had unless a proportion of the funds was invested in specified public securities including those of Commonwealth or state governments or their authorities. The object was obviously to encourage investment in public securities, rather than to raise tax revenue. The court unanimously upheld the law, maintaining that as long as the subject matter of the law is sufficiently connected to the subject matter of the power, the court will not be concerned with the policy that underlies the law.48 [page 222] In 2008 the Western democracies and other countries became embroiled in an economic recession commonly regarded as the deepest since the Depression of the 1930s. In the United States, where recession first became apparent, massive hardships were experienced as a result of an unrestrained credit regime under which financial institutions lent money for buying houses, sometimes more than the houses were worth, to borrowers who became quite unable to meet their payment obligations. Major financial institutions collapsed, requiring the implementation of governmental assistance policies unheard of in the history of that country. The recession affected Australia largely as a result of the economic globalisation that had entangled Australia and other Western countries. There were calls for the Federal Government to take immediate remedial action. One of the main responses of the Rudd Labor Government to this Global Financial Crisis in 2008 was its decision to pay bonuses to individual taxpayers of up to $900 each, provided they had paid some tax, however little, on their income tax assessments for 2007/08. The policy was intended to encourage consumer spending as a way of re-establishing confidence. Two Tax Bonus for Working Australians Acts passed in 2009 gave effect to the policy. The Acts drew an immediate High Court challenge in Pape v Federal Commissioner of Taxation.49 The court upheld the legislation in a five to two decision but not as an exercise of the taxation power in s 51(ii).

The majority found that the Acts were not laws with respect to the imposition and collection of tax under s 51(ii) since some taxpayers would receive by way of bonuses more than they paid in tax in the relevant year. But the payments, according to the majority, were a valid exercise of the executive power of the Commonwealth under s 61 of the Constitution plus the incidental power in s 51(xxxix) to deal with an emergency situation which threatened the stability of the Australian economy. Such payments were conditional upon the expenditure being covered by an appropriation of moneys by Act of Parliament in accordance with ss 81 and 83 of the Constitution. [page 223] The case is a striking example of the court allowing free-ranging executive action to cater for an international and Australian financial emergency in the absence of express Commonwealth constitutional powers — at a time when the community expects greater executive accountability because the functions of executive government are now too numerous and complex to be supervised by the Federal Parliament.

Tax bills — the legislative process Section 53 of the Constitution states that proposed laws appropriating revenue or moneys or imposing taxation must not originate in the Senate. It also states that the Senate may not amend bills imposing taxation or appropriating revenue for the ordinary annual services of the government.50 The Senate may, however, request amendments to proposed laws it is not competent to amend. In Osborne v Commonwealth in 191151 the High Court held that s 53 was not justiciable because it dealt only with ‘proposed laws’ and these were solely the concern of the Parliament. Section 55, however, refers to laws and not proposed laws, and thus has been held by the court to be justiciable. The first paragraph of s 55 states that laws imposing taxation shall deal only with the imposition of taxation. The second paragraph states that such laws, except laws imposing duties of customs or excise,

shall deal with one subject of taxation only. The intended purpose of s 55 was to prevent the House of Representatives including in such bills, measures of a different kind with a view to forcing the hand of the Senate in relation to their subject matter, a political process known as ‘tacking’. Since the purpose of the section is political rather than legal, the approach of the court has been to construe such expressions as ‘subject of taxation’ broadly.52 [page 224] For many years, Parliament would impose an income tax in an Income Tax Act and separately pass an Income Tax Assessment Act setting out all the elaborate administrative machinery for the collection of the tax and related matters, under the leadership of the Commissioner of Taxation. The process was designed to conform to s 55 so far as it states that a law imposing taxation must deal only with the imposition of taxation. In 2004 in Permanent Trustee Australia Ltd v Commissioner of State Revenue,53 the High Court in a majority judgment decided that both paragraphs of s 55 were sufficiently wide ‘to allow the insertion of any provision which is fairly relevant or incidental to the imposition of a tax on one subject of taxation’ and also that it was not unlawful to include in a taxing Act, provisions incidental and auxiliary to the assessment and collection of the tax. Accordingly, it was not necessary to have separate assessment and tax Acts. Their Honours thought the practice was desirable, however, and it continues. In State Chamber of Commerce and Industry v Commonwealth in 1987,54 the plaintiff argued that the inclusion of a fringe benefits tax in the Fringe Benefits Tax Act 1986 (Cth) infringed the second paragraph of s 55 because it imposed a number of separate taxes (for example, on car fringe benefits and housing fringe benefits). In a unanimous judgment, the court found for the Commonwealth on the ground that the fringe benefits tax was a necessarily distinct and separate subject of taxation. This means that a federal tax may impose liability on several different objects without infringing s 55, for example, the fringe benefits tax can cover accommodation, motor vehicles and other benefits included in packaged

salary deals.

Customs and excise duties Section 90 provides that the power to impose customs and excise duties is an exclusive power of the Commonwealth Parliament. Before Federation, all the colonies were heavily reliant on customs and excise duties to balance [page 225] their budgets, and they continue to be an important source of revenue for the Commonwealth. Therefore, it is not surprising that there has been a good deal of litigation involving the states as to what constitutes an excise duty. In its earlier years, the High Court was inclined to take a narrow meaning of the expression excise — namely that it was a tax on the production and manufacture of articles.55 Some later cases employed a formula known as the ‘criterion of liability’ in which the form rather than the substance of a state law was the primary test. In 1960 in Dennis Hotels Pty Ltd v Victoria,56 for example, a South Australian Act which imposed a licence fee to conduct a retail liquor business calculated at 6 per cent of the value of liquor sold in the previous 12 months was held not to constitute an excise duty because it did not operate on the process of bringing goods into existence to the point of receipt to the customer.57 As a result, various states backdated fees payable as a condition of holding a franchise. In separate cases, a tobacco retailer’s licence fee and a petrol retailer’s licence fee were upheld. Revenues derived from licensing and similar compulsory arrangements entitling businesses to operate are known as franchise taxes. At one time they constituted as much as 25 per cent of states’ revenues from their own resources. By the late 1980s, there was a growing body of opinion on the court favouring an expanded definition of excise, but the court was not persuaded it should reconsider the franchise cases particularly because the states had organised their financial affairs in reliance on them.58 The increasing

dissatisfaction with the criterion of liability approach reached its peak [page 226] in 1997 in Ha v New South Wales.59 In this case, by a four to three decision, the court looked at the substance and not the form of a state law. This case involved a challenge to the validity of the Business Franchise Licences (Tobacco) Act 1987 (NSW), which prohibited wholesale and retail sales of tobacco without a business franchise licence. The licence was calculated by reference to 100 per cent of the value of tobacco sold in a previous month. Brennan CJ, McHugh, Gummow and Kirby JJ60 held that the state tax amounted to an excise because it was in substance a tax on the value of goods before they reached the consumer. The majority judges held that the tax was so substantial that it could not be characterised as a mere licence fee. In reaching this decision, the majority judges took the opportunity to review several earlier cases, all of which led them to hold that a duty of excise is a domestic tax on a step in the production, manufacture, sale or distribution of goods, whether of foreign or domestic origin.61 The court acknowledged that its decision had most serious consequences for the revenues of the states and territories, placing them further at the mercy of the Commonwealth to keep afloat financially. Following the decision, the Commonwealth undertook various interim measures to raise the revenue on their behalf, including a Franchise Fees Windfall Tax (Imposition) Act 1997 (Cth), which imposed 100 per cent tax on any amount a state might be liable to repay taxpayers as a result of the invalidity of the state revenue measure. The subsequent introduction of the goods and services tax (GST), all of which goes to the states, has superseded the former franchise fees that the states charged.

1. 2.

3.

Australian Bureau of Statistics, Taxation Revenue, Australia, 2013–14, ABS cat no 5506.0, 2015. See, for example, South Australia v Commonwealth (1942) 65 CLR 373 at 409 per Latham CJ, with whom Rich J agreed, 469 per Williams J; [1942] ALR 186 at 192 per Latham CJ, 220 per Williams J (First Uniform Tax case). (1951) 82 CLR 547; [1951] ALR 258.

4. 5. 6. 7. 8. 9. 10. 11. 12. 13.

14. 15. 16. 17. 18. 19. 20. 21.

22. 23. 24.

25.

26. 27. 28.

(1965) 114 CLR 1; [1966] ALR 1073. (1996) 187 CLR 579; 140 ALR 1. (1928) 41 CLR 442 at 462. (1968) 118 CLR 90; [1968] ALR 545. (1936) 54 CLR 657 at 683; [1936] ALR 174 at 183. (1936) 54 CLR 657 at 668; [1936] ALR 174 at 177. (1923) 32 CLR 68; 29 ALR 119. (1923) 32 CLR 68 at 76–7; 29 ALR 119 at 123. (1989) 168 CLR 461; 88 ALR 321 (Street’s case). (1989) 168 CLR 461 at 487; 88 ALR 321 at 333. In deciding for the plaintiff, the court overruled a previous full court decision in Henry v Boehm (1973) 128 CLR 482; 1 ALR 181 in which it had upheld admission rules in South Australia which required a legal practitioner qualified in another state to reside in South Australia for at least six months before applying for admission. (2004) 220 CLR 388; 211 ALR 18; [2004] HCA 53. (2004) 220 CLR 388; 211 ALR; [2004] HCA 53 at [91] per Gleeson CJ, Gummow, Hayne, Callinan and Heydon JJ. (2013) 250 CLR 548; 300 ALR 26; [2013] HCA 34. (2013) 250 CLR 548; 300 ALR 26; [2013] HCA 34 at [117]. (2015) 318 ALR 182; [2015] HCA 12. (2015) 318 ALR 182; [2015] HCA 12 at [56] per Nettle J. (1936) 54 CLR 657; [1936] ALR 174 (Elliott). In Commissioner of Taxation v Clyne (1958) 100 CLR 246 at 272; [1958] ALR 474 at 484–5 Webb J regarded the majority view as expressed in Elliott as being conclusively endorsed by the Privy Council in W R Moran Pty Ltd v Deputy Commissioner of Taxation (NSW) (1940) 63 CLR 338 at 348; [1940] ALR 241 at 245 by reason of their approval of a similar view expressed by Isaacs J in R v Barger (1908) 6 CLR 41 at 106; 14 ALR 374 at 392. Kitto and Taylor JJ, however, expressed their agreement with Dixon J’s judgment. (1938) 60 CLR 263 at 276; [1938] ALR 370 at 375. (1988) 165 CLR 462; 82 ALR 385 (Air Caledonie). The court also held that the relevant section introduced into the Migration Act 1958 (Cth) by an amending Act was a law ‘imposing taxation’ within s 55 of the Constitution, and because it contained provisions dealing with more than the imposition of a tax the amending Act was invalid. Air Caledonie (1988) 165 CLR 462 at 467; 82 ALR 385 at 389. There have been several cases on whether exactions of money could be properly characterised as a tax or amounted to a reasonable fee for services rendered. For example, in Harper v Victoria (1966) 114 CLR 361; [1966] ALR 731 a State Egg Board levy for the grading, testing, marking and stamping of eggs was held not to be a tax. In Northern Suburbs General Cemetery Reserve Trust v Commonwealth (1993) 176 CLR 555; 112 ALR 87, a training guarantee scheme requiring employees to expend required amounts of money on workforce training on pain of having to pay the shortfall as a tax to the Commonwealth which was then to be expended on services relating to workforce training was held not to be a fee for services rendered, because there was no connection between the charges made and the benefit provided. (1937) 56 CLR 390; [1937] ALR 161. (1993) 176 CLR 480; 112 ALR 53. The majority judges, Mason CJ, Brennan, Deane and Gaudron JJ, applied Air Caledonie. Two of the three dissenting judges, Dawson and Toohey JJ, thought that the relevant observation in Air

29. 30. 31. 32. 33. 34. 35. 36. 37. 38.

39. 40.

Caledonie should not be taken too far and that the essential similarities were with fees for licences rather than with a tax. The third dissenting judge, McHugh J, refused to accept the proposition contained in Air Caledonie that the compulsory extraction of money under a statutory power could be a tax although it was not raised for public purposes. (2011) 244 CLR 97; 281 ALR 205; [2011] HCA 35. (2002) 210 CLR 333; 187 ALR 529; [2002] HCA 13. SGH Ltd v Commissioner of Taxation (2002) 210 CLR 51; 188 ALR 241; [2002] HCA 18 at [9]. Attorney-General (NSW) v Collector of Customs (1908) 5 CLR 818; 14 ALR 516. Deputy Federal Commissioner of Taxation v State Bank of New South Wales (1992) 174 CLR 219; 105 ALR 161. SGH Ltd v Commissioner of Taxation (2002) 210 CLR 51; 188 ALR 241; [2002] HCA 18 at [16]. Deputy Commissioner of Taxation v Truhold Benefit Pty Ltd (1985) 158 CLR 678 at 684; 59 ALR 431 at 434 per Gibbs CJ, Mason, Wilson, Deane and Dawson JJ. MacCormick v Federal Commissioner of Taxation (1984) 158 CLR 622 at 639; 52 ALR 53 at 63 per Gibbs CJ, Wilson, Deane and Dawson JJ. (1957) 99 CLR 575 at 603–4; [1957] ALR 761 at 767. Since s 96 is the lynchpin of Commonwealth domination over the states, if Parliament ever did provide for its discontinuance, the High Court might find a way to preserve it from extinction, perhaps holding that the liability of the extinguishing legislation to repeal leaves it open for s 96 to spring again to life. (1940) 63 CLR 338; [1940] ALR 241. In the Second Uniform Tax case (1957) 99 CLR 575 at 609; [1957] ALR 761 at 771, Dixon CJ expressed some misgivings as to the scope which the court had given s 96: If s 96 came before us for the first time for interpretation, the contention might be supported on the ground that the true scope and purpose of the power which s 96 confers upon the Parliament of granting money and imposing terms and conditions did not admit of any attempt to influence the direction of the exercise by the State of its legislative or executive powers. It may well be that s 96 was conceived by the framers as (1) a transitional power, (2) confined to supplementing the resources of the Treasury of a State by particular subventions when some special or particular need or occasion arose, and (3) imposing terms or conditions relevant to the situation which called for special relief of assistance from the Commonwealth. It seems a not improbable supposition that the framers had some such conception of the purpose of the power. But the course of judicial decision has put any such limited interpretation of s 96 out of consideration.

41. 42. 43. 44. 45. 46. 47. 48.

(1926) 38 CLR 399. (1926) 38 CLR 399 at 406. Moran v Deputy Federal Commissioner of Taxation (NSW) 1940 63 CLR 338; [1940] ALR 241 (Privy Council) affirming the decision of the High Court (1939) 61 CLR 735; [1939] ALR 357. (1942) 65 CLR 373; [1942] ALR 186. Victoria v Commonwealth (1957) 99 CLR 575; [1957] ALR 761. Joint Committee on Constitutional Review, Second Report, 1959, Commonwealth Government Printer, Canberra, 1959, p 133. (1965) 114 CLR 1; [1966] ALR 1073 (Fairfax case). The Fairfax case has been applied on several occasions. See, for example, Northern Suburbs General

49. 50. 51. 52. 53. 54. 55. 56. 57. 58.

59. 60. 61.

Cemetery Reserve Trust v Commonwealth (1993) 176 CLR 555; 112 ALR 87; [1993] HCA 12. (2009) 238 CLR 1; 257 ALR 1; [2009] HCA 23. 222 Nor may it amend any such law so as to increase any proposed charge or burden on the people. Except as provided in the section, the Senate has equal power in respect of all proposed laws. (1911) 12 CLR 321; 17 ALR 242. Resch v Federal Commissioner of Taxation (1942) 66 CLR 198 at 223; [1942] ALR 73 at 83 per Dixon J. (2004) 220 CLR 388; 211 ALR 18; [2004] HCA 53. (1987) 163 CLR 329; 73 ALR 161. Peterswald v Bartley (1904) 1 CLR 497; 10 ALR (CN) 65. (1960) 104 CLR 529; [1960] ALR 129 (Dennis Hotels). There was a second licence fee also at 6 per cent for temporary licences on daily sales of liquor, for example, at sporting events. This was held to constitute a duty of excise. See, for example, H C Sleigh Ltd v South Australia (1977) 136 CLR 475 at 501; 12 ALR 449 at 461– 2 per Mason J. Before this, individual members of the court had expressed a preference for a substance approach in contrast to Dennis Hotels. See, for example, Western Australia v Hamersley Iron Pty Ltd (1969) 120 CLR 42 at 55–6; [1969] ALR 817 at 822–3 per Barwick CJ. In these years various state duties, for example, in respect of payments received for goods and a lump sum fee to use a pipe line, were held to be in substance excises. The effect was for the states to resort increasingly to licence fees based on the Dennis Hotels formula. (1997) 189 CLR 465; 146 ALR 355. The minority judges were Dawson, Toohey and Gaudron JJ. The majority judges were clearly disapproving of Dennis Hotels, but they stopped short of overruling it completely. Instead, the majority judges found a stronger line of authority in several earlier cases including Parton v Milk Board (Vic) (1949) 80 CLR 229; [1950] ALR 55 and Capital Duplicators Pty Ltd v Australian Capital Territory (No 2) (1993) 178 CLR 561; 118 ALR 1.

[page 227]

Chapter 18

Corporations 51. The Parliament shall, subject to this Constitution, have power to make laws … with respect to: … (xx) foreign corporations, and trading or financial corporations formed within the limits of the Commonwealth; …

Origins of the corporations power It was agreed during the Convention Debates in 1891 that the Commonwealth Parliament should have power to make laws with respect to ‘the status in the Commonwealth of foreign corporations, and of corporations formed in any State or part of the Commonwealth’. Two delegates, James Munro and Sir John Bray, suggested that there should be a power to prescribe a uniform law for the incorporation of all companies just as it was intended to provide a federal power to deal with the incorporation of banks.1 Sir Samuel Griffith thought it unnecessary to have such a power, and argued ‘what is important … is that there should be a uniform law for the recognition of corporations … I think the States may be trusted to stipulate how they will incorporate companies, although we ought to have some general law in regard to their recognition’.2 At the Adelaide Convention in 1897, the paragraph was redrafted to read ‘Foreign corporations and trading corporations formed in any State [page 228] or part of the Commonwealth’. Then the words ‘or financial’ were added after

‘trading’ in Adelaide at the suggestion of Sir George Turner of Victoria. Turner stated that there were financial institutions which were not banking institutions and since it was proposed to give the Federal Parliament a banking power, the corporations power should be extended to cover the other financial institutions.3 It is not possible to express concluded views as to the nature of the power the founders intended para (xx) to confer on the Commonwealth Parliament. According to the report of the Royal Commission on the Constitution in 1929, the paragraph was thought by delegates of the Convention to confer power to pass a company law, which would deal also with the formation of a company.4 Quick and Garran stated the extent to which they considered that foreign corporations would come under federal control as follows: They will be liable to federal taxation; they may be required to give security for the performance of their contracts; their property and assets within the Commonwealth may be protected and regulated so as to secure the rights of creditors and particularly the rights of citizens and residents of the Commonwealth.5

As to Australian corporations, after some equivocation Quick and Garran suggested that the word ‘formed’ made it seem that para (xx) assumed companies would be created under state laws. As to the power which the paragraph did confer, the learned authors said: Under this power it would probably be competent for Parliament to convert a corporation created by State authority into a Federal corporation; to enlarge the scope of its operations and business; to confer on a local

[page 229] corporation certain powers which would be beyond the jurisdiction of the States Governments to grant.6

In fact, the Commonwealth has never attempted to do any of these things.7

Moorehead’s case In 1909, the High Court held in Huddart, Parker and Co Pty Ltd v Moorehead8 that the Federal Parliament could not control the behaviour of companies under

the power. In consequence, two sections of the Australian Industries Preservation Act 1906 (Cth) were held to be ultra vires. One section, using the language of para (xx), prohibited a foreign corporation formed within the Commonwealth from combining to restrain trade or commerce (s 5). The other section made it an offence for any such corporation to monopolise trade or commerce (s 8). The two sections extended to all forms of trade and commerce, including intrastate trade and commerce. The majority judges took differing views as to the content of the corporations power but none were prepared to concede it more than a narrow operation. O’Connor J for example thought the power was limited to the recognition of the status of corporations as legal entities within the Commonwealth. The decision can be explained partly because in 1909 the court was still prepared to apply the implied prohibition doctrine (otherwise known as the reserved powers doctrine) under which federal powers were to be construed, as far as possible, as not encroaching upon state reserve legislative powers. The decision also rested in part on the conviction of the judges that s 51(i), in defining the extent of the Commonwealth’s [page 230] power to make laws with respect to interstate and overseas trade and commerce, deliberately excluded intrastate trade and commerce from the reach of federal law.

Concrete Pipes case For many years after 1909, para (xx) was mainly ignored in federal circles as offering little support for Commonwealth intervention in the commercial world. In September 1971, however, the High Court overruled Moorehead’s case in Strickland v Rocla Concrete Pipes Ltd.9 The decision received much publicity at the time not so much because it invalidated major sections of the Trade Practices Act 1965 (Cth) but because all the judges said, contrary to the decisions in Moorehead’s case, that the Commonwealth had power under para

(xx) to make laws dealing with the trading activities of foreign companies and Australian trading and financial companies. For example, the court said Parliament could pass a law prohibiting these corporations from engaging in restraints of trade or monopolisation, without concern as to whether the restraints were imposed in connection with interstate and overseas trade or in connection with intrastate trade. Shortly afterwards, Parliament enacted the Restrictive Trade Practices Act 1971 (Cth) which was primarily based on the corporations power. As the architect of the decision Barwick CJ indicated, the precise scope of the corporations power could only be made plain in a series of later decisions raising the issue.

What is a trading or financial corporation? If an Australian company is created for the purpose of engaging in trade or finance, it falls within the power. In R v Trade Practices Tribunal; Ex parte St George County Council in 197410 the question was whether the Restrictive Trade Practices Act 1971 (Cth) applied to the county council, which was a corporation set up under [page 231] the Local Government Act 1919 (NSW) to provide electricity in a local government district. The council also sold electrical appliances at a profit under a statutory obligation to conduct each trading undertaking with a view to supplying electricity to consumers as cheaply as possible. In a three to two decision, the High Court held that the council was not a trading corporation but a municipal corporation serving a public purpose. In later decisions, the court, partly changed in composition, rejected the purposive approach of St George in favour of the minority view in that case expressed by Barwick CJ and Stephen J, who held that regard should be paid instead to the actual activities of a corporation and not the purpose for which it was formed.

In 1979, a case arose involving a talented Australian rules football player, Brian Adamson — R v Judges of the Federal Court of Australia; Ex parte Western Australian National Football League.11 The case involved the Western Australian and South Australian National Football Leagues’ refusal to give Adamson, a member of a Western Australian football club, the necessary clearance to join a club in South Australia. Adamson claimed the refusal was in restraint of trade, contrary to the Trade Practices Act 1974 (Cth). The court, by a majority of four to three, refused to follow St George. It held that although the two leagues and the clubs were corporations formed to promote the national game, they were on the facts plainly trading corporations. They gained substantial incomes from trading transactions including from attendances at matches, broadcasting and television rights, sponsorships and advertising sales and membership fees.12 This case made it clear that sporting, religious, educational and public and private institutions devoted to special non-trading causes can still become subjects of para (xx). [page 232] Adamson’s case did not have to deal with whether a corporation’s trading activities had to predominate over the non-trading activities for which it was formed. The point was settled in State Superannuation Board (Vic) v Trade Practices Commission in 1982.13 The Board was a statutory corporation which administered a superannuation fund for Victorian public servants and officers of government agencies. It invested large sums of money in different kinds of loans and real estate. The High Court held, by a three to two majority, that the Board could properly be characterised as a financial corporation as long as its financial activities were substantial, as they were, even if it could be also characterised as a corporation of some other type. For the purposes of para (xx), financial corporations were no different from trading corporations. In E v Australian Red Cross Society in 1991,14 a single judge of the Federal Court held that the Red Cross Society and the New South Wales Division of the Red Cross Society were corporations for the purposes of s 51(xx) because of their

substantial trading revenues. Again, the Full Federal Court held in Quickenden v O’Connor in 200115 that the University of Western Australia was a trading corporation because it received about 28 per cent of its revenue from trading. In 1983 the High Court was called upon in Fencott v Muller16 to determine whether a shelf company, one which had not yet engaged in any business, could be a para (xx) corporation. The court decided by a four to three majority that if the corporation’s intended objects, as stated in the memorandum and articles of association, were to engage in trade or finance, it fell within para (xx). Since this decision, the Corporations Act 2001 (Cth) has enabled a corporation to adopt the ‘replaceable rules’ in the Act instead of developing its own constitution. The High Court has yet to decide how it would characterise a company that chooses to create itself in this way.17 [page 233]

Application of para (xx) to natural persons The power allows the Commonwealth to make laws for the protection of a constitutional corporation by imposing duties and liabilities on natural persons. In Actors and Announcers Equity Association v Fontana Films Pty Ltd in 1982,18 the High Court considered a claim that s 45D of the Trade Practices Act 1974 (Cth), which prohibited secondary boycotts, was invalid. Fontana Films was a film producer that used actors and artists engaged through a theatrical agency. As the company was about to begin production of a new film, Actors Equity, a trade union registered in New South Wales, demanded that Fontana employ only members of the union. Fontana refused. The union and two of its members then applied pressure to the theatrical agency not to supply actors and artists. The agency capitulated to the pressure and as a result Fontana was unable to commence production. The union argued that the provision of the Act that it had contravened, s 45D, was not a valid exercise of the corporations power. The court held, however, that the provision was valid under para (xx), because it protected the trading activities of the corporation from harmful actions.

In Fencott v Muller the following year, the court held that a provision of the Trade Practices Act which extended civil liability to persons involved in corporate contraventions of the Act, was a law with respect to corporations and not merely a law with respect to natural persons, as was argued. The case arose from the sale of a trading company over which the plaintiff claimed damages for deceit. The defendants were the company directors and a salesman acting for the vendors.19 [page 234]

Limitations of the power The Corporations Act 1989 (Cth) provided for the incorporation of corporations. In 1990 in New South Wales v Commonwealth (the Incorporation case),20 the High Court decided by a six to one majority that para (xx) did not allow the Commonwealth to legislate for the incorporation of companies. It rejected the contention that the words ‘formed within the limits of the Commonwealth’ were meant only to distinguish Australian trading and financial corporations from foreign corporations. The judges relied largely on the history of the paragraph in the Convention Debates and also on views expressed by Quick and Garran.21 The case was an instance of the court making selective use of the Convention Debates to substantiate its position.22 Had it plumbed the debates thoroughly, it could not have held consistently with them that the corporations power allowed the Commonwealth entry into intrastate trade and commerce. As a result of the case, the Commonwealth had to rely on cooperative arrangements with the states, to eventually obtain a uniform companies law throughout Australia. Like other powers in s 51, the corporations power is subject to the Constitution and thus constrained by s 92, guaranteeing the freedom of interstate trade. However, since Cole v Whitfield23 in 1998 (discussed in detail in Chapter 23), s 92 is unlikely to give much trouble to exercises of the corporations power. The banking power in para (xiii) expressly excludes intrastate trading and the insurance power in para (xiv) does the same for

intrastate insurance. Both exceptions would only be effective if they were also to be exceptions to para (xx), since the corporations power applies to [page 235] financial corporations. If a case were to arise, the High Court would most likely hold that para (xx) was subject to these two exceptions. As we have already seen, the court has held that the protection in s 99 of the Constitution against the Commonwealth giving a preference to one state over another in any law of trade and commerce applies only to laws which can be made under the trade and commerce power in s 51(i). The court has also held that a similar position applies in s 100 relating to the use of river waters by a state or its residents for conservation and irrigation. The question may arise whether the wide scope now given to the corporations power could cause the court to reconsider its earlier decisions about ss 99 and 100. A further issue would then arise whether ss 99 and 100 would extend to laws passed under para (xx), which could have been passed under the trade and commerce power but for some minor details.

Use of the power for a non-trading objective The cases so far mentioned in which Commonwealth laws have been upheld have involved corporations so far as they are directly engaged in trading and finance. The power has been held to go much further. In the controversial Tasmanian Dam case24 in 1983, discussed in depth in Chapter 20 in relation to the external affairs power, the major issue before the court was whether the Commonwealth could prevent Tasmania from authorising the Hydro-Electric Commission of Tasmania to build a dam on the Gordon River below the Franklin River for purposes of generating and supplying electricity in Tasmania. The question arose whether the Commission itself was a trading corporation under para (xx). The court held again by a majority that it was, because the corporations power gave the Commonwealth

power over all acts of the Commission as a trading corporation done for the purpose of its trade, and the building of the dam [page 236] was to be undertaken for this purpose. All majority judges agreed that the power should be accorded a liberal interpretation.25 Three of the majority justices went further than the decision required. Their view was that it was unrealistic for the paragraph to give a general power to regulate the activities of foreign corporations and then give a narrower construction when a corporation was an Australian trading or financial corporation. On their view the paragraph applied to all the activities of the corporations. The underlying reason for the Commonwealth intervention in the Tasmanian operations was not connected with a desire to restrict the trading activities of the Hydro-Electric Commission in its statutory role of a power generator. On the contrary, it was to achieve an entirely different federal policy objective, namely, pursuant to its World Heritage Properties Conservation Act 1983 (Cth) to prevent the building of the dam in the interests of protecting the area as a World Heritage wilderness site from damage it would suffer if the building of the dam were to proceed.

Connection between the law and a corporation There was a body of opinion that the corporations power could not support a law’s validity simply on the basis that a corporation was affected by a law in some way. In 1985 in Re Dingjan; Ex parte Wagner,26 a majority of the court held that there had to be a significant connection between the law and the corporation, as distinct from one which was tenuous or fortuitous. The case involved a Tasmanian company that conducted a woodchip business in Tasmania, where it had rights over various places, known as coupes, to harvest timber. It entered into contracts for the harvesting and transport of timber from

these areas. Mr and Mrs Dingjan held such a contract. They entered into subcontracts with owner drivers, all of whom were natural persons, to assist them in the performance of their contract with the company. [page 237] After some years the company and the Dingjans entered into a revised agreement, a consequence of which was that the Dingjans entered into revised contracts with their subcontractors. The subcontractors, who were members of the Transport Workers Union of Australia, found the revised terms unacceptable and sought a review and variation of their contracts by the Industrial Relations Commission under the Industrial Relations Act 1988 (Cth), on the grounds that the terms were harsh and unfair. The plaintiffs sought to overturn the orders made by the Commission in the subcontractors’ favour. Orders could be made under the Act in relation to a contract to which a corporation within the meaning of para (xx) was a party or in relation to the business of such a corporation. The High Court in a four to three decision upheld the Dingjans’ challenge on the ground that the relevant provisions of the Industrial Relations Act went beyond the powers the Commission could be given under para (xx). The majority judges held, for slightly different reasons from one another, that a contract between parties who were not corporations, which merely related to the business of a corporation, did not have a sufficient connection with the power. The minority judges, Mason CJ, Deane and Gaudron JJ, held that at the very least para (xx) applied to the business functions and activities of corporations including their relationships with other corporations or individuals. A law was valid if it established in its practical operation a substantial or sufficient connection with the head of power and was not to be restricted in its meaning by reference to implications. Mason CJ added that the corporations power was a plenary power. The continuing close division of opinion in the High Court invited further litigation about the extent of the corporations power. The issue came to a head

in 2006 in another controversial case which attracted widespread approbation from those who favoured enhancement of Commonwealth industrial power, and equally strong disapproval among unions and the states concerned to protect their own traditional methods of regulating conditions of work within their borders. [page 238] In 2006 in New South Wales v Commonwealth,27 the High Court was faced with a constitutional challenge by the states and unions to the Workplace Relations Amendment (Work Choices) Act 2005 (Cth) (Work Choices Act). The Work Choices Act amended the Workplace Relations Act 1996 (Cth), which was based on the Commonwealth’s limited powers under s 51(xxxv) to legislate for the prevention of industrial disputes extending beyond the borders of a single state (see Chapter 21). The new Act changed the constitutional basis by depending for its validity almost entirely on the corporations power. One of the Act’s objects was ‘establishing and maintaining a simplified national system of workplace relations’. The conciliation and arbitration power was inadequate to the Commonwealth’s purpose because of the express limitation of its application to disputes extending beyond a state’s borders. The new Act had the effect of not only displacing the conciliation and arbitration power as the source of constitutional power, but of depriving the state laws that dealt with conditions of employment of most of their substance.28 The Work Choices Act defined an employee as someone employed by an employer, which in turn was defined to include most significantly a corporation as defined in s 51(xx) of the Constitution.29 An avowed object of the Act, set out in s 3, was to provide a ‘framework for cooperative workplace relations’ which did not depend on the processes of conciliation and arbitration. The legislation — passed under the corporations power — reached deep into the traditional heartland of state industrial law, addressing matters such as basic rates of pay and casual loadings, maximum ordinary hours of work, annual leave, periodic leave and personal leave and related entitlements.

[page 239] The court, by a majority of five to two, upheld the legislation. The judgments in the case occupy over 270 pages in the law reports. In a joint majority judgment, the court accepted the views expressed by minority judges in Re Dingjan, that s 51(xx) extended to laws prescribing the industrial rights of corporations and their employees, and the means by which they are to conduct their industrial relations. The joint judgment rejected the argument that the corporations power was confined to legislating about the external relationships of a corporation, saying it had no support in the history of the Convention Debates. Instead, the text of the paragraph was to be read without resort to implications. The court rejected other contentions of the plaintiffs. In particular it held that the existence of another power, the conciliation and arbitration power under s 51(xxxv), that related to industrial matters did not warrant a narrow construction of the corporations power which would deny its application to industrial matters. The court took this position even though the effect was to render the conciliation and arbitration power virtually superfluous — notwithstanding that its insertion had been the subject of much controversy during the Convention Debates. All plaintiffs in the case pressed the argument that a decision favorable to the Commonwealth would have serious implications for the balance which the Constitution achieved between the Commonwealth and the states and their respective legislative powers. However, the court refused to entertain this argument, noting that the error of employing implications such as the need to have a federal balance in interpreting the Constitution had long been rejected, beginning with the Engineers’ case30 in 1920. Insistence on the federal balance created a misleading implication of static equilibrium in a Constitution that had to serve changing circumstances. A further argument that there had been several unsuccessful referendums to amend paras (xx) and (xxv) in favour of increased Commonwealth power

[page 240] was treated with disdain by the majority, as serving only to muddy the waters.31 The court also took the opportunity to reject the contention that for a law to be supported by para (xx) it must possess a distinctive character. According to that contention, the law would have to be one which discriminated between the corporations and other persons in respect of the rights and obligations of each other.32 The court noted that from time to time judges and others had described the powers in s 51 as plenary,33 but according to the majority judgment, to describe the power as plenary was ‘unhelpful because neither the identity nor the characteristics of the persons who are the subject of s 51(xx) is in issue. It would be misleading if it suggested that some new and wider test was to be applied in deciding whether a law is a law with respect to those persons’.34 The cryptic statement recognised that whereas most of the powers in s 51 are powers about subject areas — for example, bounties (iii), marriage (xxi) and trade and commerce (i) — the power conferred by para (xx) was a power about persons. The judges’ assumption seemed to be that a plenary power about persons, in the absence of some alternative test of validity, would be to place the corporations at the mercy of the Commonwealth, without paying regard to their character as trading or financial corporations. The description of the powers listed in s 51 as plenary will not be vanquished easily. Besides dismissing notions of federal balance, the court adverted to frequently raised fears about the consequences of according a generous meaning to the powers in s 51 and para (xx) in particular. In Moorehead’s case35 in 1909, Higgins J had expressed concern that giving a wide meaning [page 241] to para (xx) could distort constitutional arrangements by opening the way to oppressive laws. However, the joint judgment quoted with approval the following comment of Professor Zines:

It is clear that any power of the Commonwealth, on the most restricted or the widest interpretation, might, if the federal Parliament were so inclined, produce results which, when viewed together with State laws, are inefficient, socially bad or downright ridiculous … That does not mean that the powers concerned should be construed restrictively so as to prevent those results. The object of the power, as an aid in its interpretation, is not to be seen as an accumulation of desirable laws.36

Dissenting judges Kirby and Callinan JJ expressed outright alarm about the effect of the decision on the structure of the Constitution and the balances achieved in it. According to Kirby J, the Work Choices Act carried a very large risk of distorting the federal character of the Constitution. His Honour said it set at naught s 51(xxxv) and the intentions of the founders, by invoking another head of power instead of the conciliation and arbitration powers.37 In what some commentators would regard as a departure from usual rules about characterisation, Kirby J held that the Work Choices Act could only be characterised as a law with respect to the head of power in para (xxxv) and therefore it was wholly invalid. It seems to be an extreme position to hold that the law is not also open to characterisation as a law under para (xx). However, Kirby J explained his position as follows: [T]he requirement [in s 51(xxxv)] that federal laws operate indirectly through independent resolution by way of conciliation and arbitration can … properly be described as a type of “guarantee”. Both in its language, and in its history, this is how the power in para (xxxv) has been understood and has operated in Australia for more than a century.38

[page 242] His Honour went on to say that para (xxxv) protected industrial fairness. This could not be said when the Commonwealth employed direct legislation under para (xx) because issues were then likely to be determined according to political, sectional or exclusively economic factors with the focus on the employer as the subject of the power. Callinan J expressed his dissent in a 110-page judgment, probably the longest dissenting judgment in the history of the High Court. His Honour shared Kirby J’s view about the history of the paragraphs in the Convention Debates as plainly indicating the founders’ aversion to the Commonwealth enjoying any

industrial power greater than they expressed it in para (xxxv). His Honour added a rather original claim that the Constitution generally was not intended to confer powers in duplicate. Callinan J went further and placed reliance on the fact that the electors had on several occasions rejected Commonwealth proposals to enlarge its industrial powers by referendums under s 128 of the Constitution. The court, he stated, was a creature of the Constitution and it was beyond its power to reshape the federation as the legislation under challenge did. To do so, in Callinan J’s view, ‘subverts the sacred and exclusive role of the people to do so under s 128’.39 His Honour deplored statements in the joint judgment which spoke, ‘impliedly at least, [disparagingly], not only of the expression, “the federal balance”, but also of the very concept of it’.40 He added that there was nothing in the Constitution to suggest that Commonwealth power should be enlarged by successive decisions of the court so that ‘the parliament of each state is progressively reduced until it becomes no more than an impotent debating society’.41

1. 2. 3. 4. 5. 6. 7.

8. 9. 10. 11. 12.

Official Report of the National Australasian Convention Debates, Sydney, 3 April 1891, pp 685–6. Note 1 above, p 686. Official Record of the Debates of the Australasian Federal Convention, Vol 3, Adelaide, 22 March— 5 May 1897 (17 April 1897), p 793. Commonwealth, Report of the Royal Commission on the Constitution, Government Printer, Canberra, 1929, p 207. J Quick and R Garran, The Annotated Constitution of the Australian Commonwealth, Angus & Robertson, Sydney, 1901, p 606. Quick and Garran, note 5 above, p 607. Notwithstanding the view expressed by Quick and Garran, Garran wrote in a memorandum to a Conference of Commonwealth and State Ministers in 1934 that ‘there was very little debate on this clause in the Federal Convention of 1897–98, but there is good reason to believe that this clause was intended to give the Commonwealth Parliament power in respect of what is known as “company law”, that is to say such legislation as is contained in the Companies Act of Great Britain and of the several Australian States’. (1909) 8 CLR 330; 15 ALR 241 (Moorehead’s case). (1971) 124 CLR 468; [1972] ALR 3. (1974) 130 CLR 533; 2 ALR 371 (St George). (1979) 143 CLR 190; 23 ALR 439 (Adamson’s case). Interestingly, in G Williams, S Brennan and A Lynch, Blackshield and Williams Australian Constitutional Law and Theory: Commentary and Materials, 5th ed, Federation Press, Sydney, 2014, p

13. 14. 15. 16. 17. 18. 19.

20. 21. 22.

23. 24. 25. 26. 27. 28.

29. 30. 31.

32.

33. 34. 35. 36. 37. 38.

799, the learned authors point out that the four majority judges, Barwick CJ, Mason, Jacobs and Murphy JJ, were all from the rugby state of New South Wales whereas the two minority judges, Stephen and Aickin JJ, were from Victoria, the original home of Australian rules football. Nevertheless, the effect of their decision was to bring many rugby league clubs in New South Wales and Queensland within the ambit of the legislation. (1982) 150 CLR 282; 44 ALR 1. (1991) 27 FCR 310; 99 ALR 601. (2001) 184 ALR 260; [2001] FCA 303. (1983) 152 CLR 570; 46 ALR 41 (Fencott v Muller). Williams, Brennan and Lynch, note 12 above, p 824. (1982) 150 CLR 169; 40 ALR 609. For an earlier instance in which the court held there was individual liability of natural persons as well as corporate liability, see R v Judges of the Australian Industrial Court; Ex parte CLM Holdings Pty Ltd (1977) 136 CLR 235; 13 ALR 273. (1990) 169 CLR 482; 90 ALR 355. Quick and Garran, note 5 above, p 607. The court also found support from the wording of the banking power conferred by s 51(xiii), which explicitly states that it extends to ‘the incorporation of banks’. The absence of like words in para (xx) was treated as supporting the court’s interpretation that incorporation is not an area of Commonwealth power conferred by that paragraph. (1988) 165 CLR 360; 78 ALR 42. (1983) 158 CLR 1; 46 ALR 625. There were in fact two purposes — the building of the dam and the generation of electricity — before the corporation’s function of trading began. (1985) 183 CLR 323; 128 ALR 81 (Re Dingjan). (2006) 229 CLR 1; 231 ALR 1; [2006] HCA 52 (Work Choices case). Victoria was in a different position from the other states insofar as it had referred to the Commonwealth under s 51(xxxvii) power in similar terms to s 51(xxxv) to deal with industrial disputes within the state. The definition also covered other employment such as employment by the Commonwealth or a Commonwealth agency incorporated under the laws of a Commonwealth territory. Amalgamated Society of Engineers v Adelaide Steamship Co Ltd (1920) 28 CLR 129; 26 ALR 337. Other powers in s 51 have been given an interpretation which particular referendums would have denied them. For example, the Commonwealth’s comprehensive power to regulate civil aviation, now embraced by the trade and commerce power (s 51(i)), was rejected by a referendum in 1937. In Re Dingjan, Brennan J adverted to the test after saying that the legislative power was not a power to make laws with respect to things relating to corporations or things relating to the businesses of corporations. In that case, the Industrial Relations Act 1988 (Cth) was a law of this kind because it had no effect on the corporations or their businesses. See, for example, Tasmanian Dam case (1983) 158 CLR 1 at 268; 46 ALR 625 at 819 per Deane J. Work Choices case (2006) 229 CLR 1; 231 ALR 1; [2006] HCA 52 at [186]. Huddart, Parker & Co Pty Ltd v Moorehead (1909) 8 CLR 330; 15 ALR 241. (2006) 229 CLR 1; 231 ALR 1; [2006] HCA 52 at [188]. (2006) 229 CLR 1; 231 ALR 1; [2006] HCA 52 at [515]–[517]. (2006) 229 CLR 1; 231 ALR 1; [2006] HCA 52 at [518].

39. 40. 41.

(2006) 229 CLR 1; 231 ALR 1; [2006] HCA 52 at [779]. (2006) 229 CLR 1; 231 ALR 1; [2006] HCA 52 at [781]. (2006) 229 CLR 1; 231 ALR 1; [2006] HCA 52 at [779].

[page 243]

Chapter 19

Defence Power 51. The Parliament shall, subject to this Constitution, have power to make laws … with respect to: … (vi) the naval and military defence of the Commonwealth and of the several States, and the control of the forces to execute and maintain the laws of the Commonwealth; …

Under s 61 of the Constitution, the executive power of the Commonwealth, vested in the Queen and exercisable by the Governor-General as her representative, ‘extends to the execution and maintenance of this Constitution, and of the laws of the Commonwealth’. Section 61 read together with s 51(vi) has not yet received the close attention of the High Court. Like other powers in s 51, the defence power is not expressed to be exclusive to the Commonwealth but under s 114, a state, without the consent of the Commonwealth Parliament, is prohibited from raising or maintaining a naval or military force. Before Federation, some colonies maintained armed forces and vessels. Military forces were dispatched from some colonies to assist Britain in the conduct of the wars in South Africa in 1899. In return, s 119 imposes an obligation on the Commonwealth to protect every state against invasion and, on the application of the executive government of a state, against domestic violence. In practice, the defence power has been exercised to the full by the Commonwealth, leaving little room for any independent action by a state. [page 244]

Although ‘naval and military defence’, like other powers listed in s 51, such as trade and commerce or taxation, appears to constitute a subject matter of power, the High Court has treated the defence power as being purposive in nature as distinct from a subject. This has meant that in a challenge to validity the court may have to inquire whether there is a sufficient connection between the law and the power by deciding whether the law is reasonably capable of serving a defence purpose. In seeking to establish whether there is a sufficient connection between the law and the power, in current parlance the court will inquire whether the impugned measure is reasonably appropriate and adapted to the end it is claimed to serve. If the law is disproportionate to achieving a legitimate purpose within power it will be held to be invalid. The court has reiterated on occasions that whether the law in fact achieves its objective is not a matter for the court. The purposive nature of the defence power involves the court in taking judicial notice or receiving evidence of the external effects which are claimed to support the law. For example, in peacetime a federal law conscripting persons to work in a defence industry would not be a valid exercise of the defence power, but in times of total war such as World War II such a law would be within the power. From time to time, the power has been described by judges as having a constant meaning but a variable content, ranging from its limited availability in peacetime to meeting the demands upon a community during a total war. Most exercises of the defence power have been concerned with controls imposed in light of threats of external aggression from hostile countries. In more recent years, however, federal governments have identified internal threats to the security of the Australian community which have led to laws aimed at threats of terrorist activity not necessarily associated with any particular country. The defence power extends to this area and the same tests of validity apply, at the same time leaving it to the Parliament to decide upon the wisdom of particular or restrictive measures. [page 245]

Early peacetime cases The first litigation involving the employment of the defence power in peacetime occurred in 1926 in Commonwealth v Australian Commonwealth Shipping Board.1 The Board, a statutory authority, entered into an agreement with the Sydney Municipal Council to manufacture, supply and maintain steam turboalternators. The Board sought to justify its trading activity as being incidental to the primary purpose of having the capacity to manufacture munitions for defence. However, the Commonwealth Shipping Act 1923 (Cth) established the Board as a ship owner and operator for the purpose of trade and commerce. Viewed in this context, the court held that it was not incidental to the defence power coupled with s 51(xxxix) of the Constitution (the incidental power) to carry on business for general commercial purposes. In Attorney-General (Vic) v Commonwealth in 1935,2 there was a challenge to the activities of a Commonwealth clothing factory established under the Defence Act 1903 (Cth) for the purpose of manufacturing uniforms for the naval and military forces. The factory engaged in the activity of manufacturing and supplying uniforms for various Commonwealth and state government instrumentalities and some private persons. The court held that its trading activities were within Commonwealth power, being incidental to the main purpose of having a factory to meet the requirements of the armed forces. The court distinguished between the Shipping Board, established in a commercial context, and the clothing factory, established under the Defence Act. The decisions possibly owe something to a change in the membership of the High Court, but it remains true that the incidental [page 246] power cannot normally be used to provide a jumping board for engaging in trading activities extending far beyond a defence purpose.3

Defence power during World War I

Great Britain declared war against Germany in 1914 acting for itself and the British Empire. Australia responded handsomely to the British request for military assistance and sent abroad substantial military and naval forces to join the war against Germany and its allies. Almost the entire civil population of 4.9 million was affected one way or another by the activities of Australian soldiers and naval personnel in the war zones including Gallipoli, Europe’s Western Front, Palestine and Syria. Recruitment for overseas service was entirely voluntary but as the war continued and losses mounted, the Australian Government led by Prime Minister Hughes sought and failed on two occasions to gain support by plebiscite for conscription. Despite the large scale of Australian involvement, wartime measures affecting daily civilian life were relatively few. A 1915 case, Lloyd v Wallach,4 considered actions of the Minister for Defence, who, acting under the War Precautions Act 1915 (Cth), made regulations pursuant to which he detained Wallach in military custody on the ground that he had reason to believe that Wallach was disaffected or disloyal within the meaning of the regulations. On an application for a writ of habeas corpus, the Supreme Court of Victoria ordered Wallach to be discharged from custody. On an appeal of the military officer who detained him, the High Court held that there was no reason to challenge either the facts of the minister’s belief or the grounds for it. While the court was aware that the War Precautions Act was enacted pursuant to s 51(vi), the judges did not refer specifically to the defence power. The decision rested [page 247] on the footing that, in the absence of evidence to the contrary, in the case there was no reason to question the minister’s decision. The tenor of the judgments suggests, however, that the court would probably have made the same decision in proceedings specifically challenging the validity of the Act and regulations. In the Victorian proceedings, the minister had declined to answer any questions about his actions when called by Wallach as a witness and though the latter was

a respondent in the appeal he made no appearance. A year later the High Court considered the scope of the defence power for the first time in Farey v Burvett.5 An order made by the Governor-General pursuant to the War Precautions Act 1910 (Cth) and corresponding regulations fixed the maximum retail prices for the sale of bread. In a five to three decision, the court held that the defence power coupled with the incidental power in para (xxxix) included a power to fix bread prices during the current state of war. The majority judges saw the control as assisting to secure an adequate supply of wheat to Great Britain during the war. It was also seen as a measure to protect the community from being exploited by reason of the diversion of wheat to Britain. The case provided the first illustration of the defence power being interpreted as having both primary and secondary aspects — primary aspects being directly related to the carrying on of defence in the military sense, and secondary aspects authorising measures such as rationing and price control, which apart from a wartime situation would have little if any connection with defence.

World War II The outbreak of war in Europe in 1939 occurred after 20 years of peace during which the Defence Act 1903 (Cth) established a defence force and conditions of service. The Australian community viewed the growing power of Nazi Germany and its dictator Adolf Hitler with increasing concern, but the Commonwealth made no special efforts to prepare for [page 248] participation in a war against Germany. For example, military service remained voluntary. Britain remained Australia’s military ally and the community still acknowledged indebtedness to it for the protections it offered. On 3 September 1939, Prime Minister Menzies announced that Britain had declared war on Germany and that therefore Australia was at war. Six days later, Parliament

passed the National Security Act 1939 (Cth), giving sweeping powers to the Governor-General to make regulations for securing public safety and the defence of the Commonwealth during the war. It enabled the executive government to create and impose measures applicable to the community at large which usually rested formally on the opinion of the Governor-General or a minister that a particular control was necessary or conducive to the effective prosecution of the war. As the war intensified and expanded into total war involving many countries, the National Security Act was amended from time to time to deal with specific types of controls which rested on the opinion of the relevant officials of the executive government for imposition by way of regulations or orders made under them. They embraced controls on virtually every aspect of community life in Australia. The official Manual of National Security Legislation passed under the National Security Act between 1939 and 1945 amounted to nearly 4,000 pages. Since the legislation essentially placed controls in the hands of the executive government, some constitutional challenges were inevitable and 39 cases were mounted between 1939 and 1946. Most failed. The great majority of controls of course escaped litigation and there were most likely several of more doubtful validity than at least some of the 39 challenges. In an early case, Andrews v Howell decided in 1941,6 the court considered the National Security (Apple and Pear Acquisition) Regulations 1939 (Cth) made under s 5 of the National Security Act.7 The stated object was to minimise [page 249] the disorganisation of marketing of apples and pears because of the wartime shipping shortage resulting in the loss of the export trade in the commodities. The regulations set up a marketing scheme under the control of a marketing board. The court held that the regulations had a sufficient connection with defence. Dixon J explained the operation of s 51(vi) as follows: ‘[T]hough its meaning does not change, yet, unlike some other powers, its application depends upon facts, and as those facts change so may its actual operation as a power

enabling the Legislature to make a particular law.’8 In Reid v Sinderberry in 1944,9 the High Court considered the National Security (Manpower) Regulations 1942 (Cth) made under s 13A of the National Security Act.10 The regulations empowered the Director-General of Manpower to direct and control employment under the direction and control of an employer. The Director-General directed Sinderberry to work as a factory hand for Kellogg (Australia) Pty Ltd. The court held that unless it could be shown that the Governor-General, in seeking to secure the defence of the Commonwealth, had not genuinely exercised his power to make regulations to that end, or that there was no reasonable basis for the exercise of the power, then a regulation would be valid provided it did not offend some other provision of the Constitution. Since the economic use of manpower clearly related to the total war effort, the court had no difficulty in reaching a unanimous decision in support of the regulations. Shortly after Sinderberry, in Stenhouse v Coleman,11 the High Court upheld reg 59 of the National Security (General) Regulations 1939 (Cth) which conferred ministerial powers to make wartime orders. Amongst other things, the regulation empowered a minister — again after forming an opinion that it was essential in the interests of defence — to make orders [page 250] requiring bakers or bread distributors to be licensed.12 The object of the scheme was to conserve manpower and materials by rationalising bread deliveries at a time when bakeries still delivered bread direct to households. Dixon J repeated that most of the paragraphs of s 51 described a subject of power by reference to some class of transaction or activity, banking or marriage, or by some class of public service such as lighthouses. In such instances if the legislation operated upon or affected the subject matter, its purpose or object was to be disregarded. However ‘a law with respect to the defence of the Commonwealth’ treats defence or war as the purpose to which legislation must be addressed and that purpose had to be discovered from the legislation in question, the facts to which

it applied and the circumstances which called it forth. These were considerations arising from matters on which, in case of doubts, courts could inform themselves by looking at materials that were the subjects of judicial notice. In effect that meant that judges could refer to their awareness of the war and the national defence situation to determine whether the purpose of a provision brought it within the defence power. Section 116 of the Constitution states, among other things, that the Commonwealth may not make any law for prohibiting the free exercise of any religion. During World War II, the Commonwealth Attorney-General made an order using his powers under the National Security (Subversive Associations) Regulations 1940 (Cth) that an officer take possession of Kingdom Hall, which the Adelaide Company of Jehovah’s Witnesses exclusively occupied and used for religious meetings. In 1943, in a challenge to the Attorney-General’s actions in Adelaide Company of Jehovah’s Witnesses Inc v Commonwealth,13 the High Court was informed that Jehovah’s Witnesses believed God is the supreme ruler of the universe, and that wherever there was a conflict between the laws of God and the [page 251] laws of man, God’s law had to be obeyed in preference to man’s. These beliefs were proclaimed publically by various means. However, it was also said that Jehovah’s Witnesses had no part in the political affairs of the world and could not interfere in any way with the war between nations but had to remain entirely neutral. In a unanimous decision principally led by Latham CJ, the court held that s 116 was not an absolute right and it did not protect any religious belief or practice irrespective of the political or social effects which it had. The Commonwealth could under the defence power defend the population not only against external aggression but also against internal attacks and in so doing prevent aid being given to Australia’s external enemies by internal agencies. The application of the regulations to the Jehovah’s Witnesses did not itself infringe s 116. However, the court also decided that the regulations, with minor

exceptions, gave to the executive government unbridled discretionary powers which lacked any real connection with defence. Consequently the Adelaide Company remained entitled to occupy the Hall and to use it for religious meetings. At this time, the court also delivered judgment in R v University of Sydney; Ex parte Drummond14 — a challenge to the validity of the National Security (Universities Commission) Regulations 1943 (Cth). Regulation 16 empowered the Director-General of Manpower to determine the total number of students who could be enrolled in any faculty of a university. In six specific faculties, which included medicine, dentistry and engineering, while quotas still applied enrolled students could be eligible for financial assistance. In a three to two decision, the court decided that the regulations as a whole lacked any real connection with the defence power and were therefore invalid. The majority attitude was that the regulations were [page 252] directed more to Commonwealth control over university education than the conduct of the war and did nothing to divert students to defence purposes.15 The Industrial Lighting case16 that same year was another instance of regulations being held to be beyond the defence power. The National Security (Industrial Lighting) Regulations 1942 (Cth) gave the minister power to prescribe, by order, artificial lighting standards in any industrial premises or class of industrial premises. In holding the regulations to be invalid, the court said that good artificial lighting was just one of many factors which contributed to industrial efficiency and this was true of industrial premises generally. There had to be some limits to the defence power and hence to the minister’s ability to select industrial premises for federal control, but the regulations did not contain such limits and therefore they were beyond power. Also in 1943, in Pidoto v Victoria,17 Victoria claimed that the National Security (Industrial Peace) Regulations 1940 (Cth) were invalid. Among other things, the regulations provided that employees (including employees of the

Victorian Government) who worked on days that would normally have been holidays, should be awarded extra payment by industrial authorities. The regulations limited days which could be observed as holidays in the Christmas– New Year season and provided a specific machinery to determine payment without regard to the limitations expressed in the conciliation and arbitration power described in s 51(xxxv) of the Constitution. Victoria argued that s 51(xxxv), which conferred power on the Commonwealth Parliament with respect to ‘conciliation and arbitration for the prevention and settlement of industrial disputes extending beyond the limits of any one State’, meant that the Parliament did not have legislative power with respect to industrial matters in any other manner. The court did not accept this argument, holding that the conciliation and arbitration power was not [page 253] so expressed as to be capable of limiting other powers conferred on the Commonwealth, including the defence power.18

Unwinding of wartime controls With the end of the war in sight, the Commonwealth commenced a review of the wartime legislation, knowing that the total impact of wartime measures on the community was so profound and comprehensive that they could not all be terminated at once simply because hostilities had ceased. In 1946 in Dawson v Commonwealth,19 the plaintiff challenged the National Security (Economic Organization) Regulations 1942, made under the National Security Act 1939 (Cth) and continued by the Defence (Transitional Provisions) Act 1946 (Cth). They gave the Treasurer absolute discretion to control the price on which transactions involving the purchase of land would be approved. The Treasurer had refused a purchase for the sum of £200 but indicated that he would give consent if the price did not exceed £150. The regulations were to come to an end at the end of 1946. The court held that the scope of the defence power did not shrink to peacetime dimensions immediately on cessation of hostilities but

enabled the Commonwealth to wind up after a war. Dixon J pointed out that ‘the whole edifice does not collapse at once simply because the necessities which call it into being have passed’.20 The court was divided on whether there was sufficient justification for the regulations to be continued until the end of 1946, but the majority [page 254] held that there was sufficient connection between the subject matter of the regulations and the defence of the Commonwealth. As Dixon J pointed out, a purpose of the regulations was to prevent speculation in property dealings which could divert funds available for investment in government securities and the regulations could be justified as a measure for the change back of a war economy to an economy appropriate to peacetime conditions. The Defence (Transitional Provisions) Act provided for the continuation of a wide range of controls enacted by regulations made under the National Security Act. Under the 1946 Act, regulations were extended only for 12 months and had to be continued, if at all, by amendment to the Act on a yearly basis. By 1949 it was becoming more difficult for the Commonwealth to extend some controls. As the court pointed out, the effects of the war could be felt for many years afterwards and a line had to be drawn somewhere. In R v Foster; Ex parte Rural Bank of New South Wales,21 the High Court unanimously invalidated three sets of wartime regulations: the first dealing with women’s employment during the war; the second dealing with rationing of petrol throughout Australia; and the third giving the right to occupy vacant houses to certain classes of persons, mainly members and former members of the defence forces. [I]t may be incidental to defence to continue the control and regulation of a particular subject matter for a time after the cessation of hostilities and also to maintain such control while legislative provision is being made for the necessary re-adjustment. … But the Court must see with reasonable clearness how it is incidental to the defence power to prolong the operation of a war measure dealing with a subject otherwise falling within the exclusive province of the States and unless it can do so it is the duty of the Court to pronounce the enactment beyond the legislative power.22

The first challenge related to employment regulations made in 1943 under

the Women’s Employment Act 1942 (Cth). During the war, the regulations [page 255] had been held valid23 as a means of getting women to work in war industries and essential civilian employment by the incentive of higher wages and more advantageous working conditions than female employees in traditional areas of female employment usually enjoyed. However, in 1949 the High Court held24 that the lack of manpower, though a consequence of the war, was not sufficient to justify the continuance of the wartime controls, especially since active hostilities against a powerful enemy had ceased some three years previously. In the second challenge, decided at the same time,25 the High Court considered the National Security (Liquid Fuel) Regulations 1940 (Cth), introduced to provide for the rationing of liquid fuel. By 1949, the argument for the Commonwealth to continue rationing was based entirely upon the world American dollar shortage at a time when nearly all fuel was imported and had to be paid for in scarce American dollars. The court held unanimously that the facts fell far short of showing any sufficient connection with defence purposes and were too remote to be incidental to defence. The regulations dealt only with the distribution of petrol after it came into Australia and did not purport to deal with the amount of petrol imported. Though the dollar shortage was attributable largely to the war, it was no more than one of the consequences of the war and the rationing scheme could not be supported under the defence power. The third challenge, also decided at the same time,26 involved Tippett, an exserviceman and protected person under the National Security (War Service Moratorium) Regulations 1942 (Cth). Tippett obtained a warrant authorising him to occupy the plaintiff’s house, which had been temporality vacant. The High Court held that though there was a shortage of housing due to the war, this too was no more than one of many consequences following the world conflict. The court noted that the original regulations

[page 256] constituted a drastic measure, which could not endure long after cessation of hostilities.

Defence preparations in time of peace After World War I, the Australian community returned to normal peacetime living conditions, not unlike those that existed before war broke out. The return to peace after World War II was more complicated. Even before the war ended it was apparent that the Western allies and the USSR would exercise completely divergent patterns of life in the post-war era. Negotiations which ended in the partition of Germany between the West and the East gave the Soviets complete control of Eastern Europe. Feeling that it had carried the major burden of the war in Europe — as indeed it had in terms of casualties — the USSR refused to vacate the Eastern states which it had occupied as the war drew to a conclusion. Poland, Hungary, Romania, Bulgaria and Czechoslovakia became Soviet satellites. The Baltic states, Estonia, Latvia and Lithuania, became constituent republics. The Communist government in China which triumphed after the war initially maintained close ties with the USSR. The West regarded Soviet activities with grave concern and the era known as the Cold War, which began as early as 1945, continued at various levels until 1990. Australia, under the newly elected Menzies Government, also saw Communism as a worldwide threat to the established institutions of democratic government and the Western way of life. Consequently, Parliament passed the Communist Party Dissolution Act 1950 (Cth). The Communist Party Dissolution Act began by declaring in s 4 the Australian Communist Party to be an unlawful association and provided for its dissolution and a takeover of its property. Section 5 authorised the GovernorGeneral to declare any other organisation to be unlawful if satisfied that it was an affiliated body and that its continued existence would be prejudicial to the security and defence of the Commonwealth or the maintenance of the Constitution. Any such body was to be dissolved and its property vested in a

receiver. Section 5 provided such a body with a right [page 257] to appeal for a declaration that it was not a body that should be declared unlawful under the section. Section 9 was stated to apply to any person who had been a member of the Communist Party at the time of its dissolution and who was a Communist at any time after a specified date. Where the Governor-General was satisfied that a person was one to whom the section applied and was likely to engage in activities prejudicial to the security and defence of the Commonwealth, he could make a declaration to that effect. Once a declaration was in force,27 such a person was disqualified from employment with the Commonwealth and its authorities and from holding office in an industrial organisation whose members were engaged in an industry such as coal mining and engineering, which, in the opinion of the Governor-General, was vital to the security and defence of Australia. The duration of the Act was indefinite. The Communist Party Dissolution Act was introduced by a series of recitals which had the object of explaining Parliament’s reasons for the legislation. The first two recitals repeated its legislative power to make laws with respect to the naval and military defence of the Commonwealth and the states under s 51(vi), and s 61 which vests the executive power of the Commonwealth in the Queen, to be exercised by the Governor-General, and which it defines as extending to the execution and maintenance of the Constitution and of the laws of the Commonwealth. A third reference was to the power under s 51(xxxix) to make laws with respect to matters incidental to the execution of any of its constitutional powers. Then followed a series of recitals about the Australian Communist Party and Communism. One stated that the party expounded the basic theory of Communism under which the party acting as a revolutionary minority would be able to seize power and establish a dictatorship of the proletariat. Another stated that the party engaged in operations designed to bring about the overthrow of the Australian system of government. Another

stated that the party was an integral part of the world Communist revolutionary movement which [page 258] similarly engaged in subversive activities. Another declared that certain industries such as coal mining and engineering were vital to Australia’s defence, and another that the party and Communists sought by means of strikes and so forth to dislocate work in the vital industries. The last recital proclaimed that it was necessary for the security and defence of the Commonwealth that the Communist Party and affiliated bodies be dissolved and their property forfeited to the Commonwealth and their members and officers disqualified from the specified forms of employment. The High Court by a six to one majority held that the Act was ultra vires and invalid.28 A substantial question before the court was whether Parliament’s reasons for the enactment expressed in the recitals were sufficient to bring it within the scope of the defence power in s 51(vi). The court was firmly of the view that the recitals were not even prima facie evidence of the truth of what was recited but amounted only to statements of opinion. The court denied that the recitals which described the doctrines, designs and activities of the Communist Party and affiliated bodies, members and other Communists, even if true, could support the dissolution of the party, or the other proscriptive provisions which rested for their application upon the opinion and discretion of the GovernorGeneral in Council. By vesting the Governor-General with such powers, the Act purported to arrogate the jurisdiction of the court. It was for the court to decide whether such facts as were available to it were sufficient to satisfy it that the legislation served a legitimate defence purpose. Section 51(vi) was in its nature a purposive power. Thus, as Fullagar J observed, ‘a power to make laws with respect to lighthouses does not authorise the making of a law with respect to anything which is, in the opinion of a law-maker, a lighthouse’.29 The court would

[page 259] have to be satisfied that a structure was a lighthouse within the meaning of the paragraph. Individual judges proceeded to explain the process of the judicial determination or ascertainment of the facts in order to decide whether a particular law was a valid exercise of the defence power. Dixon J, after noting that Australian forces had been sent to assist South Korea and the United States in the war against North Korea, in which Communist China actively supported the North, concluded that the case nevertheless had to be considered on the same basis as if a state of peace ostensibly existed. His Honour emphasised that the court could rely on the general facts of history and knowledge of a general nature possessed by intelligent persons and the study of the doctrines of Communism. It could also take into account notorious international events of a public nature and matters of common knowledge and experience. Among the deficiencies of the legislation his Honour noted was that it proceeded on the footing that the GovernorGeneral could exercise his proscriptive powers even if there were no activities of a nature which could justify action. Previous decisions of the court had accepted that in the two World Wars, the executive could take restrictive action based on the opinion of an official that it was necessary in the interests of the conduct of the war.30 However, in a period of ostensible peace, the wartime necessities which justified such action could not exist, no matter how well founded the apprehensions of danger were. On this basis, Dixon J held that the Act was, on the whole, invalid. Fullagar J delivered the most interesting judgment in the case. It is of particular relevance now in an era in which the Commonwealth chooses to conduct military operations abroad when Australia is not itself in any danger of invasion. The Commonwealth has repeatedly committed Australia to participate militarily in overseas conflicts on the basis of its membership of [page 260]

the United Nations or a military alliance, such as the ANZUS Treaty with the United States. After noting that the defence power is purposive, Fullagar J noted that it had two aspects. The first aspect covers laws which have defence as their direct and immediate object, for example, a law relating to manufacture of weapons. In this example, the primary aspect included power to punish activities obstructing war preparations and the court would not question Parliament’s motives. The second aspect covers measures such as price control and rationing which hitherto had been invoked only in connection with actual war but could be available to the Commonwealth in apprehension of war. It possibly rested on s 51(xxxix), which empowered Parliament to legislate with respect to matters incidental to the execution of any power vested in it by the Constitution. The court’s deliberation on the secondary aspect also had two stages: first, the consideration of basic facts giving rise to the extension of the power; and second, examination of particular legislation to see whether it assisted in dealing with the emergency as disclosed by the particular facts. Acknowledging Dixon J’s views, Fullagar J stated that the court would ordinarily confine itself to matters of which it could take judicial notice, that is, facts which were public knowledge. To go further could involve disclosure prejudicial to the efforts of the executive to deal with an emergency and, further, the facts in a defence case could be so general as to be incapable of proof or disproof. Even if the court were satisfied that an Act was capable of being sustained under the secondary aspects of the defence power, the matters in the preamble to the Communist Party Dissolution Act were of a general character and no specific facts were asserted. The recitals dealt with matters which were open to judicial notice and added nothing to justify the Act. Fullagar J thus concluded that the secondary aspect would not sustain an Act with such dramatic provisions, fit for employment only during a time of actual war. The court held further that neither s 51(xxxix) read with s 61, nor any implied power to make laws for the preservation of the Commonwealth and its institutions from internal attack or subversion, supported the Act. [page 261]

This is because its provisions did not apply to specific acts or omissions of the Communist Party, kindred bodies or Communists, but instead gave the executive the power to determine the very facts on which the existence of the power depended. Prime Minister Menzies made it known that he did not agree with the court’s decision and, determined as ever to deal with Communism, Parliament passed the Constitution Alteration (Powers to Deal with Communists and Communism) 1951 (Cth). The Act proposed a constitutional amendment to give the Commonwealth the power to make laws with respect to Communists and Communism as Parliament considered necessary or expedient for the defence of the Commonwealth and the maintenance of the Constitution or the laws of the Commonwealth, and a power to make a law in the terms of the Act of 1950. At the referendum, the proposed amendment failed narrowly to obtain either of the two necessary majorities (either of votes overall, or of votes within states). Voting in New South Wales had a big adverse effect on the result.

Terrorism In the Communist Party case, Fullagar J stated, obiter dictum, that the defence power was concerned with states that were external enemies. At the time, as the referendum results suggest, it seemed there were no internal threats of real consequence to the Australian community. Terrorism was not unknown, of course, but for many years it appeared that Australia was relatively isolated from its reach. On 11 September 2001, the world was shocked by the highly destructive attack on America by terrorists considered to be under the direction of Osama Bin Laden, who founded al-Qaeda around 1991 to wage an Islamic holy war against the United States and subsequently other countries. The terrorist threat around the world appeared to increase significantly, and Islamic extremists became perpetrators of bombings in places as far apart as London and Bali. Many claimed that Australia was a likely target for terrorists, especially in view of its participation in the conflicts in Iraq and Afghanistan and

[page 262] its close alliance with the United States. Parliament passed amendments to the Commonwealth’s Criminal Code 1995 and the Australian Passports Act 2005 (Cth), which provided for extreme measures to be taken against persons suspected of being engaged in terrorism or acts of terrorism or associated with terrorist organisations. In 2007 in Thomas v Mowbray31 Thomas was charged and convicted of offences under the amended legislation, including receiving funds from a terrorist organisation. He had admitted to training with al-Qaeda in Afghanistan. He appealed to the High Court claiming principally that the legislation was not valid under s 51(vi). The court held, however, that the powers granted in the paragraph were not limited to naval and military defence against foreign nations and that the defence power extended to protecting the public and its property from terrorist acts. Peace today is not like it used to be in the earlier days of federation and it is not improbable that Australia will continue to commit forces to armed conflicts, including in the northern hemisphere, in actions directed against terrorism.

Australian Military Court Only courts created in accordance with Ch III of the Constitution can exercise the judicial power of the Commonwealth. Section 72 gives federal judges tenure until they reach 70 years of age. For many years courts martial as disciplinary bodies dealing with transgressions by members of the Australian Defence Force have been treated as fully outside Ch III. The system of military justice established under the Defence Force Discipline Act 1982 (Cth) was upheld in White v Director of Military Prosecutions in 2007.32 The Act provided for a range of offences and trial and punishment by courts martial and Defence Force Magistrates. Offences under the Act included some not peculiar to military personnel which could also be offences in

[page 263] the ordinary civil courts. In upholding the Act, the High Court held that the circumstances of military service imposed additional responsibilities on military personnel, and that offences triable by a court martial were not confined to those of an exclusively disciplinary character, although the boundaries of which offences could be tried by court martial were not fully resolved by the decision. In 2006, the Act was amended and the Australian Military Court was created as a court of record with the capacity to deal with contempt of court and power to make decisions that were binding and authoritative without invoking the military chain of command. Its members were appointed for fixed five-year terms, with a possibility of renewal. The amendments stemmed from a Senate committee report, which stated that it had become increasingly apparent that the disciplinary system applying to the armed forces no longer struck the right balance between the requirements of a functional defence force and the rights of service personnel. The new court was intended to satisfy requirements of impartiality and judicial independence. However, in 2009 in Lane v Morrison33 the High Court held that the legislation went beyond what could reasonably be regarded as serving the purpose of maintaining or enforcing discipline and that, as constituted, the Military Court exercised the judicial power of the Commonwealth, contrary to Ch III of the Constitution (which would have required its judges to be appointed until the age of 70 and removable only under s 72 of the Constitution). In the prolonged absence of the implementation of proposals to establish an Australian Military Court composed of judges appointed under s 72 of the Constitution, the former military discipline system has continued to operate.

1. 2. 3.

(1926) 39 CLR 1; 33 ALR 61 (Shipping Board case). (1935) 52 CLR 533; [1935] ALR 246 (Clothing Factory case). As the trade and commerce power in s 51(i) is now interpreted, the Commonwealth could validly manufacture products for sale interstate and overseas and it would be possible to link commercial operations of this character with an exercise of the defence power. However, in the Shipping Board

4. 5. 6. 7.

8. 9. 10.

11. 12. 13. 14. 15.

16. 17. 18.

19. 20. 21. 22. 23. 24. 25. 26. 27.

case, the Board conducted its operations on two islands in Sydney Harbour and the challenged contract, being with Sydney Municipal Council, was purely intrastate. (1915) 20 CLR 299; 21 ALR 353. (1916) 21 CLR 433; 22 ALR 201. (1941) 65 CLR 255; [1941] ALR 185. Section 5 was introduced with the words: ‘The Governor-General may make regulations for securing the public safety and defence of the Commonwealth … and for prescribing all matters which … are necessary for the more effective prosecution of the war.’ Andrews v Howell (1941) 65 CLR 255 at 278; [1941] ALR 185 at 193. (1944) 68 CLR 504; [1944] ALR 205 (Sinderberry). Section 13A empowered the Governor-General to make regulations requiring persons to place themselves and their service and property at the disposal of the Commonwealth, ‘as appear to him to be necessary or expedient for securing the public safety or defence of the Commonwealth’. (1944) 69 CLR 457; [1945] ALR 8. Regulation 59 of the General Regulations was applied more than any other source of legislative authority to control the conduct of industries and members of the community during World War II. (1943) 67 CLR 116; [1943] ALR 193. (1943) 67 CLR 95; [1943] ALR 227. Latham CJ and McTiernan J in dissent thought that the regulations had a direct relation to the maximum utilisation of manpower in Australia. In their Honours’ view, the plain object of the regulations was to organise the man power and woman power of the Commonwealth for the prosecution of the war, and they were therefore part of the very substance of the war effort. Victorian Chamber of Manufactures v Commonwealth (1943) 67 CLR 413; [1943] ALR 325. (1943) 68 CLR 87; [1944] ALR 1. In Gratwick v Johnson (1945) 70 CLR 1; [1945] ALR 167 the High Court held that s 92 of the Constitution was applicable to the defence power. An order made under the National Security (Land Transport) Regulations 1944 (Cth) by the Director-General of Land Transport provided that no person should travel interstate by rail or commercial passenger vehicle without a permit. The court held that the requirement of a permit was a direct interference with the freedom of intercourse among the states conferred by s 92 of the Constitution. There were no provisions in the order to prevent the Director-General of Land Transport from exercising his powers in a completely arbitrary manner. The order did not reveal that the exigencies of war had created an emergency requiring restriction of interstate travel. At the time, s 92 was interpreted as guaranteeing an individual’s right to engage in trade, commerce or intercourse between the states. As now interpreted, s 92 no longer guarantees an individual freedom of this kind. For detailed discussion of s 92 of the Constitution, see Chapter 22. (1946) 73 CLR 157; [1946] ALR 461. (1946) 73 CLR 157 at 184; [1946] ALR 461 at 468. (1949) 79 CLR 43; [1949] ALR 493. (1949) 79 CLR 43 at 84; [1949] ALR 493 at 500. Victorian Chamber of Manufactures v Commonwealth (1943) 67 CLR 347; [1943] ALR 294 (Women’s Employment case). R v Foster; Ex parte Rural Bank of New South Wales (1949) 79 CLR 43; [1949] ALR 493. Wagner v Gall (1949) 79 CLR 43; [1949] ALR 493. Collins v Hunter (1949) 79 CLR 43; [1949] ALR 493. There was a right of appeal against the Governor-General’s declaration, but only on the issue of

28.

29. 30.

31. 32. 33.

whether the person was a Communist or member of the Communist Party. Australian Communist Party v Commonwealth (1951) 83 CLR 1; [1951] ALR 129 (Communist Party case). Latham CJ dissented. His Honour’s view was that it was for Parliament to identify the conditions requiring the exercise of the defence power and the measures needed to cope with them. Communist Party case (1951) 83 CLR 1 at 258; [1951] ALR 129 at 212. Lloyd v Wallach (1915) 20 CLR 299; 21 ALR 353. In this case, the court upheld a regulation which stated: ‘Where the Minister has reason to believe that any naturalised person is disaffected or disloyal he may … order him to be detained … .’ (2007) 233 CLR 307; 237 ALR 194; [2007] HCA 33. (2007) 231 CLR 570, 235 ALR 455; [2007] HCA 29. (2009) 239 CLR 230; 258 ALR 404; [2009] HCA 29.

[page 265]

Chapter 20

The External Affairs Power 51. The Parliament shall, subject to this Constitution, have power to make laws … with respect to: … (xxix) external affairs;1 …

In 1899 an English parliamentarian who visited Australia, W J Galloway, commented that, founded at different times and under different circumstances, the colonies had no political bond of union other than the common one binding them to the motherland.2 Galloway went on to observe that there were only three bonds holding the empire together: the legislative veto of the Imperial Parliament, the judicial prerogative of the Crown and British hegemony in matters of foreign policy. He wrote: Colonies are not all, nor always, so wisely administered as Canada. Australia, in the past, had often shown a quite pardonable restlessness in the face of the irritating, though comparatively unimportant, foreign complications which have been forced on her attention. New Caledonia, the New Hebrides, New Guinea, have each in turn been used by the bolder sort of colonial politician as an excuse to force the hand of a supposedly neglectful Colonial Office.3

Noting that the Crown conducted British foreign policy through its advisers on the Privy Council who possessed the confidence of the [page 266] Westminster Parliament, Galloway forecast a constitution in which the KingEmperor with the advice of the Privy Council would conduct foreign affairs for member countries of the British Empire. He wrote: Sir John MacDonald understood the theoretical position when, in shaping a Canadian Privy

Council, he foreshadowed a Kingdom of Canada: for in the three great secondary dominions of Canada, Australia, and South Africa, each with its legislature, and each with its Council advisory of the King-Emperor, which the original or British Privy Council (supplemented, as it has already begun to be from the colonies) “animates the whole” we see the real future constitution of selfgoverning Anglo-Saxondom, the real British Empire to which India and other dependencies should be attached.4

Quick and Garran thought the expression ‘external affairs’ in s 51 of the Constitution was singularly vague and that the power could prove to be a great constitutional battleground. They said there was nothing in the power to indicate an intention of the Imperial Parliament to divest itself absolutely of all authority over the external affairs of Australia and to commit them exclusively to the Commonwealth Parliament.5 In view of the application of the Colonial Laws Validity Act 1865 (UK), they said, it could not successfully be contended that divestment of power by the Imperial Parliament was intended.6 In the Constitution Bill approved in the 1891 Convention Debates, para (xxix) read ‘External affairs and treaties’ but during the Melbourne session of the Convention in 1898 the words ‘and treaties’ were omitted on the initiative of the premier of New South Wales, George Reid. Reid was acting surreptitiously as a virtual mouthpiece of the British Colonial Office, determined to maintain its monopoly on foreign affairs free from any risk that the Commonwealth would assume a power to negotiate its own treaties independently of Britain. [page 267] The Colonial Office had made it clear to all six colonies that they had no power to enter into treaties, declare war or peace, or engage in external diplomatic activities. The external interests of the colonies were not, however, altogether ignored in commercial matters, and in the 20 years prior to Federation the practice had been for the colonies to be consulted before Britain entered into a commercial treaty which would apply to them. There was also a practice of including a clause in commercial treaties to which Britain was a party that provided for voluntary adherence by an individual colony.7 After Federation the Imperial authorities adopted a more liberal attitude to

the newly formed Commonwealth. On 3 January 1908, the Secretary of State for the Colonies wrote to the Australian Governor-General: His Majesty’s Government are pledged to the view that, so far as the relations of Australia with foreign nations are concerned, the Government of the Commonwealth alone can speak, and that for everything affecting external communities the Government of the Commonwealth alone are responsible to the Crown. It follows from this that adherence to no treaty or convention with a foreign Power, whatever its subject matter, can be notified for which the Commonwealth has not made itself responsible; in other words, which is not made on behalf of the Commonwealth.8

The statement, which was in response to Prime Minister Alfred Deakin’s influence, did not do much however to dispel the notion dating from colonial times that the principal role of the external affairs power was to create an obligation on the Commonwealth to implement British foreign policy.9 In 1910 Australia established a High Commission in London, but although Australia had trade representatives in various countries it was not until 1940 after the outbreak of war that it established its first diplomatic [page 268] posts outside Britain, in Washington, Tokyo and Ottawa.10 Australia’s costly participation in World War I in unqualified support of the mother country resulted in its recognition on the broader international scene for the first time. In 1919, as one of the five Principal Allied and Associated Powers,11 the United Kingdom signed the Treaty of Versailles and under the umbrella of the imperial signature, Australia, along with Canada, South Africa, New Zealand and India, added their separate signatures as members of the British Empire.12 Following the Versailles conference, Australia became a member of the League of Nations in its own right and a mandatory power under the League of the former German colony of New Guinea. Even so, it was not until 1926 at an Imperial Conference, that Britain released its hold on external affairs by the Balfour Declaration, which recognised the right of the dominions to conclude treaties and agreements with foreign powers independently of Britain.13

From this time, Australia gained increasing recognition internationally and although the stage at which it could be said to have a distinct legal personality in international law is open to speculation, its sovereign status was fully confirmed in the discussions leading to the establishment of the United Nations in 1945.

Standing of the states in world affairs Section 51(xxix) is, in form, a concurrent power to be shared with the states subject to s 109 of the Constitution, which accords prevalence to Commonwealth laws over conflicting state laws. There is, however, little scope for state activity on the subject matter without involving the Commonwealth. [page 269] From the earliest period of colonial history, British colonies were represented in the United Kingdom from time to time by agents residing in London. Each Australian colony at Federation had an agent-general’s office with a wide range of functions including, for example, liaison with the Imperial Government, negotiation of public loans for the colony, and immigration. The colonies did not maintain formal representation in foreign countries and in 1900 remained unrecognised as having any international personality. The situation of the states has always been the same. The states are juridical persons for purposes of state and Commonwealth law in Australia and as such they have the capacity to enter into legal relationships including international contracts within the cognisance of the ordinary law and may for these purposes maintain representation in foreign countries. However, they have no role in the diplomatic affairs of Australia and they lack international legal personality.14 As Alfred Deakin observed at the Imperial Conference in 1907, ‘one of the principal reasons that induced Australians to federate was that as regards all places outside the continent they should speak with one voice’.15 For a time after Federation, the states were reluctant to concede the

Commonwealth’s hegemony over external affairs. In 1912, an issue arose in South Australia over the Dutch ship, Vondel. Contrary to a treaty between Great Britain and Holland, the South Australian Government had refused to arrest the crew for desertion. The Dutch complained to Britain and the British Government sought a report from the Commonwealth which in turn sought advice from the South Australian Government. South Australia then sought to deal directly with the British Government, but the latter made it clear to South Australia that in matters of external relations, the Commonwealth alone represented Australia. The Commonwealth’s role as sole holder of Australia’s international legal personality has been unchallenged since (and is, in any event, consistent with international law on the topic). [page 270]

Executive and legislative powers Entry into international arrangements is a function of the executive power of the Commonwealth formally vested in the Governor-General as the Queen of Australia’s representative under s 61 of the Constitution. The Governor-General also possesses the prerogative powers of the Crown which include treaty making and the conduct of foreign affairs. The courts have had to grapple with ascertaining the range of functions which are embraced by the description ‘external affairs’ in a rapidly changing international political, economic and social environment, in which some commentators go so far as to refer to the world as a global village. The High Court has done this in a series of cases, in which it has at times been far from unanimous, but the outcome has been highly favourable to the growth of Commonwealth power. Its decisions have had a decisive bearing on the distribution of the legislative powers between the Commonwealth and the states, and the shape of the federal system. Almost all treaties and conventions16 to which Australia becomes a party involve the assumption of obligations as well as the grant of benefits. The discharge of obligations almost invariably requires restraints of various kinds not

only on actions of the government but also on members of the community. Some treaties do not require legislation to implement them because they do not directly affect the rights of citizens, for example, treaties involving military obligations such as the ANZUS Treaty, and treaties of friendship. Otherwise, however, agreements entered into by the executive government are not selfexecuting. It is a long established rule of common law that entry into a treaty which imposes international obligations is of no effect domestically until Parliament legislates to give effect to it and Parliament is not under an obligation to implement a treaty simply to [page 271] comply with the wishes of the executive government.17 The question arises whether the Commonwealth itself can fully implement treaty obligations that the executive government has incurred or whether it must also seek legislative action by the states. These are matters for the court. Since World War II, the number of multilateral international agreements has risen remarkably. Some of them have given rise to difficulties for federal states where legislative power is divided between the central government and separate component governments, as in Australia and Canada. This has led to the insertion of so-called federal clauses in some international treaties to which the Federal Government does not commit itself beyond its own ability to implement the treaty, without the involvement of a state or a province. One form of federal clause used in a convention reads: If a State has two or more territorial units in which different systems of law are applicable in relation to matters dealt with in the Convention, it may at the time of signature, ratification, acceptance, approval or accession declare that this Convention shall extend to all its territorial units or only to one or more of them and may modify this declaration by submitting another declaration at any time.18

Countries sign multinational agreements knowing that mere signature does not impose all of the obligations contained in a treaty. Ratification is required before the country becomes bound. Ratification is an executive act and creates an international obligation to observe the terms and conditions of the treaty.

Because this is so, Australia will (in theory at least) only ratify a treaty after Parliament has taken the necessary legislative action to implement it according to its terms. [page 272]

Extent of the treaty-making power The first test of Commonwealth power arose in R v Burgess; Ex parte Henry.19 Australia was an adherent to the International Convention for the Regulation of Aerial Navigation, known as the Paris Convention 1919, which was negotiated at the Versailles peace conference. The Convention defined the rights of states in their air space and laid down elaborate rules for the flight, navigation and landing of aircraft engaged in international aviation. The Air Navigation Act 1920 (Cth) gave effect to it. Goya Henry was an intrepid aviator, who once flew under the Sydney Harbour Bridge. He conducted a pleasure flight business. He was convicted of an offence of flying without a licence contrary to Air Navigation Regulations 1921 (Cth) made under the Act. He challenged the validity of the legislation. The High Court held unanimously that the Act, insofar as it authorised regulations to be made for purposes of carrying out the terms of the Convention, was a valid exercise of the external affairs power.20 Members of the court, however, expressed quite different views about the capacity of the Commonwealth to bind states and individuals by entering into international treaties. According to Dixon J (with whom Starke J was in substantial agreement): If a treaty were made which bound the Commonwealth in reference to some matter indisputably international in character, a law might be made to secure observance of its obligations, if they were of a nature affecting the conduct of Australian citizens. On the other hand, it seems an extreme view that, merely because the Executive Government undertakes with some other country that the conduct of persons in Australia shall be regulated in a particular way, the Legislature thereby obtains a power to enact that regulation, although it relates to a matter of internal concern which, apart from the obligation undertaken by the Executive, could not be considered as a matter of external affairs.21

[page 273] Evatt and McTiernan JJ took a much wider view. They said: In truth, the King’s power to enter into international conventions cannot be limited in advance of the international situations which may from time to time arise. And, in our view, the fact of an international agreement having been duly made about a subject brings that subject within the field of international relations, so far as such subject is dealt with by the agreement.22

Notwithstanding the division of opinion, such was the reverence accorded to Dixon J, that the Commonwealth for several years afterwards conducted its international relations having in mind his views and not those of Evatt and McTiernan JJ. In particular, Australia had become an independent member of the International Labour Organization (ILO) in 1919 and from time to time took steps to implement particular ILO conventions. Out of concern that ILO conventions might not be regarded by the High Court as indisputably international in character, the Commonwealth only ratified ILO conventions after the states had prepared for the assumption of the obligations which the Commonwealth had incurred by taking the necessary action under their general legislative powers, because the Commonwealth did not possess its own legislative power over conditions of employment. It was not until 1965 that para (xxix) surfaced again in High Court litigation. In Airlines of New South Wales Pty Ltd v New South Wales (No 2),23 already discussed in Chapter 16, the court also held that regulations under the Air Navigation Act 1920 (Cth) were a valid exercise of the external affairs power insofar as they implemented the Chicago Convention on Air Navigation, to which Australia was a party. At the same time, Barwick CJ felt it necessary to say that he was not prepared to accept the view that the mere fact that the Commonwealth had signed a convention would give it power to implement it by its own legislative action. [page 274] Ten years later in the Seas and Submerged Lands case,24 five judges of the

High Court took an expanded view of para (xxix) in holding that the Seas and Submerged Lands Act 1973 (Cth) which vested in the Commonwealth sovereignty over the territorial sea beginning at the low water mark around Australia, was a valid implementation of two conventions to which Australia was a party, namely the Convention on the Territorial Sea and Contiguous Zone and the Convention on the Continental Shelf. Barwick CJ, Mason and Murphy JJ added that the external affairs power extended to any matter or thing external to Australia. They also held that documentary evidence produced to the court showed that state boundaries did not extend beyond the low water mark and therefore the territorial sea was external to the Commonwealth. Their Honours’ view was that rights in connection with the territorial sea surrounding the colonies were enjoyed by the Imperial Crown in Britain, and those rights had devolved upon the Commonwealth after Federation. The opportunity for a full examination of the power presented itself in 1982 in Koowarta v Bjelke-Petersen.25 The case involved sections of the Racial Discrimination Act 1975 (Cth), which gave effect to the International Convention on the Elimination of all Forms of Racial Discrimination. In 1976 the Aboriginal Land Fund Commission contracted with lessees of crown land in Queensland to purchase the leasehold over the Archer River station, but the Queensland Minister for Lands refused to approve the transfer because the state government was opposed to proposals to acquire large areas of land for development by Aboriginal peoples in isolation. A slim majority of the High Court, consisting of Stephen, Mason, Murphy and Brennan JJ, upheld the sections of the Racial Discrimination Act which operated to compel the state government to acquiesce in the Commission’s transaction. Mason, Murphy and Brennan JJ said that the power was of a plenary nature and would enable Parliament to legislate not only for the ratification of the treaty but also for its implementation. The only significant qualification was that the treaty should be a genuine one and not a device to [page 275]

secure increased Commonwealth legislative power at the expense of the states. This ‘good faith’ limitation on the legislative power to implement treaties was stated as early as 1936 in the judgment of Evatt and McTiernan JJ in the Goya Henry case.26 The idea that the Commonwealth cannot implement a treaty entered into only as a device to attract legislative power is sensible, although as Gibbs CJ noted in Koowarta, it would be a ‘rare’ case in which this restriction might ever apply.27 There was no question otherwise that the Convention on the Elimination of all Forms of Racial Discrimination was a matter of external affairs within the power of the Commonwealth to implement. The three dissenting judges in Koowarta, Gibbs CJ, Aickin and Wilson JJ, asserted that a doctrine of federal balance had to be recognised as a means for delimiting the scope of the powers set out in s 51, and held that the mere existence of a treaty would not bring its implementation within para (xxix). Gibbs CJ (with whom Aickin J agreed) stated that if Evatt and Tiernan JJ were correct in the Goya Henry case, the executive could, by making an agreement with another country, arrogate to Parliament power to make laws on any subject whatsoever and the federal balance achieved by the Constitution could be entirely destroyed. The outcome of the case rested on the seventh judge Stephen J, who said that the subject matter for Commonwealth legislation had to be of international concern or international in nature. However, his Honour noted that there had been a growth in the content of external affairs which reflected new global concerns for human rights and hence the Commonwealth could validly implement the Convention by its own legislative action.

Tasmanian Dam case In the following year, the question of whether the court needed to be satisfied that an international agreement was on a subject matter of international concern came to a head in the Tasmanian Dam case28. The principal legislation [page 276]

in question was the World Heritage Properties Conservation Act 1983 (Cth) which aimed to give effect to the Convention Concerning the Protection of the World Cultural and Natural Heritage, to which Australia was a party. At the request of the Australian Government, a large area of a national park which included the Gordon River below the Franklin River in Tasmania was accepted by the World Heritage Committee as a protected area pursuant to the Convention. At first, the Tasmanian Government supported the Commonwealth action, but later it changed its mind. Upon becoming aware that the state government intended to build a dam on the river in order to enhance the production and sale of electricity by the state’s Hydro-Electric Commission, the Commonwealth made regulations under the Act which prohibited the building of a dam within the prescribed area, unless ministerial consent was obtained. A majority of the High Court (Mason, Murphy, Brennan and Deane JJ) adopted a plenary view of the power and repudiated the view that its scope was restricted to subjects that had to be characterised as matters of international concern. They held that an external affair existed upon Australia becoming a party to the Convention and that it was not necessary that the Convention should be about a matter of international concern. As long as the domestic provisions conformed to Australia’s obligations and the law did not infringe any express or implied constitutional limitations, the law would be valid.29 The expansive interpretation in the Tasmanian Dam case was applied in Richardson v Forestry Commission in 1988.30 The Commonwealth began an inquiry into whether land in Tasmania should have world heritage status. The Lemonthyme and Southern Forest (Commission of Inquiry) Act 1987 (Cth) restricted the use of the land pending the outcome of the inquiry. The High Court held that the World Heritage Convention imposed an obligation to identify land which might be listed, as well as to protect land that had already been listed. The interim protection provided by the Commonwealth Act was reasonably appropriate to obtain the objective of the Convention. [page 277]

It was only by taking interim measures that the risk of failing to discharge obligations imposed by the Convention could be avoided. In 1989 in Queensland v Commonwealth (Daintree Rainforest case),31 the court again emphasised that it would not be reluctant to identify an international obligation. The Commonwealth had submitted an area of rainforest in Queensland for inclusion in the World Heritage List by the World Heritage Committee. Upon its inclusion, the Commonwealth proclaimed the area for protection under the World Heritage Properties Conservation Act. Queensland challenged the validity of the proclamation. The court held that the inclusion of the area in the World Heritage List was conclusive evidence of its status in the international community and the Commonwealth was under an international duty to protect and conserve the area as part of the world’s cultural or natural heritage. The principle that the external affairs power allows the Commonwealth to regulate any matters or things outside of Australia irrespective of whether a treaty applies was extended in Polyukhovich v Commonwealth in 1991.32 The War Crimes (Amendment) Act 1998 (Cth) made criminal the conduct of Nazi officers in Axis-occupied territories during World War II in Europe if the conduct would have constituted an offence under Australian criminal law. The plaintiff challenged the law on various grounds including that it was not a valid exercise of the external affairs power. The court by majority upheld the Act as a valid exercise of Commonwealth legislative power because it operated on conduct that had taken place outside of Australia. Deane J remarked: Used without qualification or limitation, the phrase “external affairs” is appropriate, in a constitutional grant of legislative power, to encompass both relationships and things: relationships with or between foreign States and foreign or international organisations or other entities; matters and things which are territorially external to Australia regardless of whether they have some identified connection with Australia or whether they be the subject matter of international treaties, dealings, rights or obligations.33

[page 278] In 1996 in Victoria v Commonwealth (Industrial Relations Act case),34 the

High Court approved a statement by Dawson J (at 695–6) in Polyukhovich: [T]he power extends to places, persons, matters or things physically external to Australia. The word “affairs” is imprecise, but it is wide enough to cover places, persons, matters or things. The word “external” is precise and is unqualified. If a place, person, matter or thing lies outside the geographical limits of the country, then it is external to it and falls within the meaning of the phrase “external affairs”.35

The court concluded that this view ‘must now be taken as representing the view of the court’.36 The Industrial Relations Act case also dispelled any notion that the federal balance should influence the interpretation of the external affairs power. The Industrial Relations Act 1988 (Cth) allowed the imposition of obligations on employers with respect to minimum wages, equal pay, termination of employment, discrimination in employment and family leave and for the regulation of collective bargaining and the right to strike. The Act went far beyond the Commonwealth conciliation and arbitration power in s 51(xxxv). The Commonwealth claimed, however, that most of its provisions were supported by the external affairs power because several of those matters were the subject of conventions and related recommendations that had been adopted by the General Conference of the ILO, which Australia had ratified. The plaintiff states (Victoria, South Australia and Western Australia) argued that the ILO conventions and recommendations were not matters of international concern or any relevant external affair. The court held that the phrase ‘external affairs’ had to be construed with all the generality which the words admit, and that the power allowed the Commonwealth to implement recommendations made regarding matters contained in an ILO convention, as well as the convention obligations [page 279] themselves. The federal law had to be reasonably capable of being considered appropriate and adapted to implementing a treaty. It was for the executive to choose the means by which it carried into effect a treaty, provided that the means chosen ‘are reasonably capable of being considered appropriate and adapted to that end’. It was not essential to validity that the legislation complied

with all the obligations under a treaty. However, as Mason J said in the Tasmanian Dam case, ‘the extent of parliament’s power to legislate to carry a treaty into effect depends on the nature of the particular treaty. The subject matter of the treaty does not create a new head of legislative power and the law must conform to the treaty and carry its provisions into effect’.37 As to the question of means being appropriate and adapted to give effect to a treaty, the court rejected a formula which had surfaced in some previous constitutional challenges to the validity of Commonwealth Acts. The court said in the Industrial Relations Act case: It has been said that a law will not be capable of being seen as appropriate and adapted in the necessary sense unless it appears that there is “reasonable proportionality” between that purpose or object and the means adapted by the law to pursue it. The notion of “reasonable proportionality” will not always be particularly helpful. The notion of proportion suggests a comparative relation of one thing to another as respects magnitude, quantity or degree; to ask of the legislation whether it may reasonably be seen as bearing a relationship of reasonable proportionality to the provisions of the treaty in question appears to restate the basic question.38

It remains to be said that Mason J in the Tasmanian Dam case rejected the argument that a law to implement a treaty should be limited to the implementation of obligations only. His Honour said: To say this is to import an arbitrary limitation into the exercise of the power, one which might deprive Australia of the benefits which a treaty or convention seeks to secure. Take, for example, a treaty by which

[page 280] another country undertakes to provide technological and other benefits in connection with a joint enterprise to be undertaken in this country between Australia and the other party to the treaty.39

Dicta in several cases including Koowarta v Bjelke-Petersen40 support this view and it has been accepted explicitly or implicitly in later cases.

Paragraph (xxix) as a plenary power The Industrial Relations Act case was a triumph for the exponents of central power in an era in which matters once comfortably encompassed by state action

and legislative power have emerged as subjects of international concern from which individual countries find it difficult or impossible to isolate themselves. There was still a question, however, in the nature of a subsidiary qualification, which Brennan J first formulated in his dissenting judgment in Polyukhovich. In that case, his Honour said that ‘affairs’ were the external affairs of Australia and did not cover affairs that had nothing to do with Australia. There needed to be some sort of connection between the external affair and Australia. The contrary majority view in the case was that once it was recognised that para (xxix) was a plenary power to make laws for the peace, order and good government of the Commonwealth, to require a connection was inconsistent with it. To hold otherwise would create a lacuna in Commonwealth power. The majority in the Industrial Relations Act case did not settle the question. In 2006 in XYZ v Commonwealth,41 the plaintiff had been charged with the commission of child sex tourism offences under two sections of the Crimes Act 1914 (Cth). He challenged the validity of the section as being in excess of the external affairs power, but the High Court rejected the argument in a five to two decision. Three majority judges (Gummow, Hayne and [page 281] Crennan JJ) applied Polyukhovich and the Industrial Relations Act case, and repeated that the power enabled Parliament to legislate with respect to matters, persons or things physically external to Australia, irrespective of any further connection with the country. Gleeson CJ was not quite so emphatic, but indicated his support for the reasoning in Polyukhovich. This should be the end of the matter.42 As already mentioned, para (xxix) like other powers in s 51 has to be read subject to any limitations expressed or implied in the Constitution. In Melbourne Corporation v Commonwealth43 the High Court held that a Commonwealth law, in this case made under the banking power in para (xiii), which discriminated against a state and also unduly interfered with the state’s functions of government would be invalid (see Chapter 14). In the Industrial

Relations Act case part of the federal legislation was read down so as not to bring it into conflict with this constitutional implication although the Act was not aimed at the states in a discriminatory sense.44

Paragraph (xxix) and terrorism In Thomas v Mowbray in 2007,45 the High Court considered a further aspect of Australia’s external affairs. This was a case in which the plaintiff, an Australian citizen, had been made subject to an interim control order made under Div 104 of the Criminal Code 1995 (Cth) which was directed towards protecting the public, including the public of a foreign country, from an apprehended terrorist attack. The plaintiff admitted he had trained [page 282] outside Australia at the camp of a terrorist organisation but he challenged the validity of the order. A primary ground of challenge to the anti-terrorist law was that it was beyond the Commonwealth’s external affairs power. The court held by a five to two majority that the provisions of the Criminal Code were a valid exercise of the defence power in s 51(vi). Three of the majority judges also held that the external affairs power could come into play to supplement the exercise of the defence power if necessary. The challenged law in its external application was a law with respect to a matter or thing outside Australia. This matter or thing was the apprehended intimidation or injury to the government or public of a foreign country. In so deciding, the three majority judges applied the decision in XYZ v Commonwealth. The other two majority judges rested their decisions on the defence power without any reference to para (xxix).

The role of Parliament A multilateral international convention is invariably open for signature on behalf of states that choose to be parties for some time before it enters into force. It comes into operation only after ratification by signatory states or a specified

number of them. It is not constitutionally necessary for the executive government to seek Parliament’s approval for Australia to become a signatory to a bilateral or multilateral international agreement. However, if legislation is required to implement the agreement, as is nearly always the case with multinational conventions, in practice Parliament has virtually no option but to give effect to the government’s action, and to approve the ratification of the international agreement by the executive when approval is sought. Approval is normally in association with the implementing legislation. In the latter part of the 20th century, the executive government habitually took parliamentary endorsement of international instruments for granted, as an automatic formality. While greatly increased numbers of treaties and conventions were signed and ratified, Parliament had no meaningful opportunity to engage with their substance. This approach reached its [page 283] apogee under the Hawke and Keating Labor Governments in the eighties and nineties. In 2000, Professor Brian Galligan described the 1996 amendments which significantly expanded Parliament’s traditionally limited role in the following terms: The previous Labor Government and its forceful Minister for Foreign Affairs, Senator Gareth Evans, had used the untrammelled treaty making power with little concern for parliamentary scrutiny or public accountability. The practice of bulk tabling of treaties in Parliament at six-month intervals in batches of between 30 and 50 treaties had developed. In about two-thirds of the cases, Australia had already ratified or acceded to the treaties before tabling and was obliged to comply under international law. Such contempt for Parliament, combined with concern about the High Court’s open-ended interpretation of the external affairs power that favoured the Commonwealth over the states, caused a political backlash. A Senate committee investigated the matter and called for greater public scrutiny and public accountability. Its recommendations were adopted by the incoming Howard Coalition Government in 1996. The 1996 overhaul of the treaty making process, included: mandatory tabling of a treaty 15 sitting days before the government takes action to bring a treaty into force; provision of an accompanying National Interest Analysis explaining the

reasons for Australia’s becoming a party; scrutiny by a Parliamentary Joint Standing Committee on Treaties; establishment of a Treaties Council under the auspices of Council of Australian Government; and public access to treaty making information via the Internet.46

Concluding observations Paragraph (xxix) is now a plenary power to deal with any matters or things external to Australia whether by bilateral or multilateral international agreement or executive action independently of any agreement. It has become a major legislative power in the possession of the Commonwealth, [page 284] as cases such as the Industrial Relations Act case show (although in fact the Commonwealth has since re-drafted its industrial laws to rely instead mainly on the corporations power for their validity). Misgivings are bound to be expressed about the use of the external affairs power by the Commonwealth to arrogate power to the executive and to frame legislation imposing restrictions on the conduct of states and members of the Australian community. Where another more direct substantial head of legislative power is a ready alternative, judges are likely to adopt that as the basis for a law’s validity, or to treat the external affairs power as a subsidiary underpinning for the legislation, as in Thomas v Mowbray. Tensions are arising globally about the actions of current national economies of developed countries and their utilisation of natural resources which are now known to be leading to global warming, pollution, decreased biological diversity and the exhaustion of natural resources, to the point at which they present a threat to the stability of a heavily populated planet, or worse. In 1992 a United Nations Conference on Environment and Development was held at Rio de Janeiro. Representatives of 178 governments attended and official delegates, representatives of non-government organisations and journalists numbered in the thousands altogether. In the outcome there was fairly general acceptance of declarations about climate change and biodiversity including the Rio Declaration containing 40 chapters dealing with a wide range

of issues directed to the protection of the atmosphere and the oceans, free water resources, biodiversity, improvements in the quality of life and so forth. Although this has been followed up in various international conferences and accords, the firmest result so far of international agreement on these matters has been the Kyoto Protocol of 1997 which Australia signed in 1998 but did not ratify until 2007, after the Rudd Labor Government came to power. It is becoming increasingly clear and more widely understood throughout the world that aspirational targets and modest commitments, such as those of the Kyoto Protocol and the Rio Declaration, have been based on [page 285] assumptions that the existing ways of life and conditions of living in the world’s developed economies will continue indefinitely without impediment. These assumptions appear to be false, and modest measures will in the end be of little consequence in addressing the real global challenge. Instead, imperative restrictive measures will have to be put in place on a global basis. The first concrete step towards a more realistic successor regime to the Kyoto Protocol was taken in the Paris Agreement of 2015 which is intended to have effect from 2020, although this too has its weaknesses. When the time comes at which it is accepted that strong, even drastic, measures to protect the environment must be taken, it is beyond question that the Commonwealth Parliament will bear major and even sole responsibility for legislating under the external affairs power to impose what might be draconian limitations on existing patterns of life in Australia.

1.

2. 3.

Section 51(xxx) is a power to make laws with respect to ‘the relations of the Commonwealth with the islands of the Pacific’. It adds nothing to the external affairs power as it is now interpreted but it can be useful politically in Australia’s relations with the Pacific islands. W J Galloway, Advanced Australia — A Short Account of Australia on the Eve of Federation, Methuen, London, 1899, p 146. Galloway, note 2 above, pp 175–6.

4. 5. 6. 7. 8. 9.

10.

11. 12. 13. 14. 15. 16.

17. 18.

19. 20.

21. 22.

23. 24. 25. 26.

Galloway, note 2 above, pp 176–7. J Quick and R Garran, The Annotated Constitution of the Australian Commonwealth, Angus & Robertson, Sydney, 1901, p 631. Section 2 of the Colonial Laws Validity Act 1865 (UK) provided that where an Act of the Imperial Parliament extended to a colony, any colonial law repugnant to it was void and inoperative. See Victoria v Commonwealth (1996) 187 CLR 416 at 476–7; 138 ALR 129 at 138–9 per Brennan CJ, Toohey, Gaudron, McHugh and Gummow JJ. Quoted in Victoria v Commonwealth (1996) 187 CLR 416 at 477; 138 ALR 129 at 139. For a description of some of the constitutional developments leading to Australia’s emergence as an independent nation in its own right, see Victoria v Commonwealth (1996) 187 CLR 416 at 477–80; 138 ALR 129 at 139–42. In 1836 New South Wales, after obtaining the approval of the British Government, secured the appointment of a United States consul to Sydney. This was the first foreign diplomatic appointment to Australia. The other four were the United States, France, Italy and Japan. Prime Minister Hughes and Minister for the Navy, Joseph Cook, signed for Australia. Imperial Conference 1926, Inter-Imperial Relations Committee Report, Proceedings and Memoranda, E (IR/26) Series (Balfour Declaration 1926). See J Richardson, ‘The Executive Power of the Commonwealth’ in L Zines (ed), Commentaries on the Australian Constitution, Butterworths, Sydney, 1977, pp 81–2. Cmd 1907, No 3340, quoted in R v Burgess; Ex parte Henry (1936) 55 CLR 608 at 685; [1936] ALR 482 at 509 per Evatt and McTiernan JJ (Goya Henry case). A treaty is usually a bilateral agreement between Australia and another country, for example, a treaty of friendship, but the term is often used to describe other international agreements of one kind or another. A convention is a multilateral agreement between sovereign states, for example, the Chicago Convention 1944 about the regulation of international civil aviation. Victoria v Commonwealth (1996) 187 CLR 416 at 481; 138 ALR 129 at 142. This clause (Art 45(1)) is contained in the Convention on Protection of Children and Co-operation in Respect of Intercountry Adoption 1993, which entered into force generally in 1995 and in Australia in 1998. In the Tasmanian Dam case (1983) 158 CLR 1; 46 ALR 625 the four majority judges decided that the presence of a particular federal clause in the Convention did not restrict the Commonwealth’s power. (1936) 55 CLR 608; [1936] ALR 482 (Goya Henry case). The court also held that the regulations did not sufficiently adhere to the terms of the Convention. As a result, the Commonwealth amended the regulations and the amended legislation was upheld in a second Goya Henry case: R v Poole; Ex parte Henry (1939) 61 CLR 634; [1939] ALR 269. Goya Henry case (1936) 55 CLR 608 at 669; [1936] ALR 482 at 502–3. Goya Henry case (1936) 55 CLR 608 at 681; [1936] ALR 482 at 507. Latham CJ also adopted a broad view of the power but without commenting on the views expressed by Evatt and McTiernan JJ. Partly in response to Dixon J, the Chief Justice observed that it was impossible to say a priori that any subject was necessarily such that it could never properly be dealt with by international agreement. (1965) 113 CLR 54; [1965] ALR 984. New South Wales v Commonwealth (1975) 135 CLR 337; 8 ALR 1. (1982) 153 CLR 168; 39 ALR 417 (Koowarta). Goya Henry case (1936) 55 CLR 608 at 687; [1936] ALR 482 at 510.

27. 28. 29. 30. 31. 32. 33. 34. 35. 36. 37. 38. 39. 40. 41. 42.

43. 44. 45. 46.

Koowarta (1982) 153 CLR 168 at 200; 39 ALR 417 at 439. Commonwealth v Tasmania (1983) 158 CLR 1; 46 ALR 625. For example, the Commonwealth cannot validly enter into an external commitment that would result in preventing a state from carrying on normal functions of government (see Chapter 14). (1988) 164 CLR 261; 77 ALR 237. (1989) 167 CLR 232; 86 ALR 519. (1991) 172 CLR 501; 101 ALR 545 (Polyukhovich). (1991) 172 CLR 501 at 599; 101 ALR 545 at 605–6. (1996) 187 CLR 416 at 485; 138 ALR 129. Industrial Relations Act case (1996) 187 CLR 416 at 485; 138 ALR 129 at 145, quoting Dawson J in Polyukhovich (1991) 172 CLR 501 at 632; 101 ALR 545 at 630. (1996) 187 CLR 416 at 485; 138 ALR 129 at 145. (1983) 158 CLR 1 at 131; 46 ALR 625 at 696–7. (1996) 187 CLR 416 at 487–8; 138 ALR 129 at 147. (1983) 158 CLR 1 at 130; 46 ALR 625 at 695. (1982) 153 CLR 168; 39 ALR 417. (2006) 227 CLR 532; 227 ALR 495; [2006] HCA 25. The court had considered this argument in two earlier cases. First, in Horta v Commonwealth (1994) 181 CLR 183; 123 ALR 1 the court considered the maritime boundary between Australia and Indonesia above the continental shelf between the two countries in which oil exploration was taking place. The court held that legislation to give effect to the agreement between the two countries was a valid exercise of the external affairs power. In so doing it found that there was a sufficient nexus with Australia. Second, in R v Hughes (2000) 202 CLR 535; 171 ALR 155; [2000] HCA 22 the court applied Horta and held that the regulation of foreign investments by Australian companies related to matters territorial outside Australia and also touched and concerned Australia. (1947) 74 CLR 31; [1947] ALR 377. In this respect the court followed Re Australian Education Union; Ex parte Victoria (1995) 184 CLR 188; 128 ALR 609. (2007) 233 CLR 307; 237 ALR 194; [2007] HCA 33. B Galligan, ‘Parliament’s Development of Federalism’ in G Lindell and B Bennett (eds), Parliament: The Vision in Hindsight, Federation Press, Sydney, 2001, p 31.

[page 287]

Chapter 21

The Conciliation and Arbitration Power 51. The Parliament shall, subject to this Constitution, have power to make laws … with respect to: … (xxxv) conciliation and arbitration for the prevention and settlement of industrial disputes extending beyond the limits of any one State; …

Paragraph (xxxv) found its way into the Constitution only at the Melbourne session of the Convention Debates in 1898 when, after a vigorous debate, Henry Higgins, who was afterwards to become a judge of the High Court and President of the Commonwealth Court of Conciliation and Arbitration, obtained its carriage by a vote of only 22 to 19. The power was first adumbrated during the Convention Debates in Adelaide in 1891 but it encountered strong resistance from the colonies and failed to pass. In reluctantly agreeing in 1898 to the Commonwealth having the power, the Convention was overwhelmingly of the view that the colonies as states should enjoy outright primacy in the regulation of industrial conditions and that the Commonwealth power should only come into operation when industrial disputes literally extended beyond the limits of a single state, like the maritime and shearers’ strikes that overreached colonial borders in the 1890s. Paragraph (xxxv) presupposes the creation of authorities to deal with disputes which may be the subject of the power. The Conciliation and Arbitration Act 1904 (Cth) created a Commonwealth Court of Conciliation [page 288]

and Arbitration with a President appointed from among the justices of the High Court for a term of seven years. Higgins was appointed President.1 As it turned out, by the second half of the 20th century, the Commonwealth power as interpreted by the High Court transcended the limitations which the founders had in mind. In spite of its technicality, it had become the frontrunner in the regulation of industrial conditions across Australia. Its long reign eventually came to an end when the basis of the Commonwealth’s industrial legislation switched to the external affairs power in 1996 (upheld in the Industrial Relations Act case),2 and then to the corporations power upon which the Howard Government in 2006 relied for its ‘Work Choices’ legislation (upheld in the Work Choices case).3 While the 2006 legislation could not cover corporations other than those described in s 51(xx), nor employment by nonincorporated businesses, it covered the major part of the workforce and the conciliation and arbitration power fell into disuse almost at the stroke of a pen — a stroke which also sounded the death knell of state claims to a major role in the regulation of industrial conditions.4 The Howard Government lost office in 2007, partly it is said because of the unpopularity of Work Choices, which emphasised the rights and responsibilities of employers rather than employees, who could be required to negotiate without union protection. The incoming Rudd Government announced it would put an end to the legislation, leading to speculation that it would resort to greater use of the conciliation and arbitration power. Instead, the Fair Work Act 2009 (Cth) was based on the corporations power. Government policy was to seek a reference of power by each state under s 51(xxxvii) of the Constitution which would cover areas of employer–employee relationships to which the corporations power could not constitutionally apply. The Industrial Relations [page 289] (Commonwealth Powers) Act 2009 (NSW) made such a reference but other states have yet to follow the New South Wales example. Whatever happens, returning to the old division of industrial power between the Commonwealth

and the states seems to be out of the question. The Commonwealth may regulate industrial conditions directly under other enumerated powers, for example, under s 51(i) it may regulate the working conditions of waterfront employees loading and unloading vessels engaged in interstate or overseas trade.5 In 1907 Higgins J delivered his judgment in the Harvester case,6 a momentous decision which firmly established the future role of the Commonwealth Court of Conciliation and Arbitration. The court ruled that McKay, who was the owner of a company which built agricultural machinery, was required to pay his employees a wage which would permit an ordinary Australian worker supporting a wife and three children to enjoy a condition of frugal comfort assessed according to current human standards.7 The court decided that a fair and reasonable minimum weekly wage for unskilled workers should be seven shillings. The case effectively introduced the concept of the ‘basic wage’, and became a benchmark in industrial law. From that time, the court, aided by favorable High Court decisions as to the meaning of para (xxxv), emerged as a significant force in the regulation of industrial conditions. During the operation of the system which relied on the conciliation and arbitration power, its essential features were laid down by judicial interpretation: •

The power ‘does not authorise the Commonwealth Parliament to regulate conditions of employment by direct legislation’,8 but instead allows it to establish a system of conciliation and arbitration which might itself determine such conditions. [page 290]

•

While a determination made in exercise of the conciliation and arbitration power binds the parties to the dispute and their successors, it was held in 1910 that the Commonwealth Court of Conciliation and Arbitration did not have power to declare that an award should operate as a common rule throughout the relevant industry.9 However, it has been held that an award may bind employers who do not employ any unionised workers.10 Awards may also extend to the employment of non-

union labour. •

The Boilermakers’ case in 195611 held that the Commonwealth Court of Conciliation and Arbitration could not validly possess both arbitral and judicial powers. The boilermakers’ union had been found to be in contempt by the Court of Conciliation and Arbitration, and fined. The boilermakers challenged the validity of the court on the ground that it was exercising the judicial power of the Commonwealth as well as its arbitral powers. The High Court held in favour of the union in a four to three decision. The joint majority held that the court was established primarily as an arbitral tribunal and this was its dominant purpose. Chapter III of the Constitution did not permit the exercise of a jurisdiction which belonged to the judicial power of the Commonwealth by a body established for purposes foreign to such power, even though that body was organised as a court. Accordingly, the court was invalidly constituted. It had no power to interpret and enforce awards. To do so was the role of a court possessing jurisdiction under Ch III of the Constitution. The result is open to the criticism that the appropriate body to interpret and enforce an award is the body making the award and not a court, which officially knows nothing of the proceedings which led to the award. However, the decisions of the High Court and the Privy [page 291] Council stand. The immediate consequence was the establishment of the Commonwealth Industrial Court to interpret and enforce awards made by the Conciliation and Arbitration Commission, in which the former court’s arbitration power was vested. The Federal Court now exercises the role of that court.

•

The High Court recognises the operation of the power in connection with so-called paper disputes, arising when one side serves a log of demands which are met with refusal from the other side. Without strikes,

lockouts or other actions, there is still a dispute. Of course, such a dispute may lead to strikes and lockouts. •

Liberal judicial interpretation has been aided by the ability and willingness of trade unions and employers’ associations to organise themselves on a federal basis. Thus, a federal union of employees acting on behalf of all its members attracts the power by creating a dispute with employers beyond a single state, for example, in another state or a Commonwealth territory. Similarly, employers carrying on business beyond the borders of one state may enter into dispute covered by the Commonwealth power, even with a union whose members are employed only within a single state. Both union and employer organisations must be federally registered.

•

Section 51(xxxv) creates a power to deal with industrial disputes. In its early days the High Court adopted a liberal meaning of industrial dispute12 but later cases narrowed its meaning. For example, in 1929 it was held that schoolteachers were not engaged in an industry.13 In 1983, the High Court in R v Coldham; Ex parte Australian Social Welfare Union14 (the CYSS case) took a completely different view and held that the expression ‘industrial dispute’ should be given its popular meaning and not be confined to disputes in productive industry and organised business carried on for the purpose of making profits. [page 292]

•

In three cases preceding the CYSS case, the High Court held that disputes about the trading hours of a shop, the safe crew component of a commercial airline, and a demand that an employer make deductions from an employee’s salary for payment of union dues, all did not constitute industrial disputes. Later cases cast doubt on these earlier decisions. Thus, in 1987 the court held that management decisions, once the sole prerogative of management, were now correctly seen as directly affecting the relationship of employer and employee and constituted an

industrial matter.15 •

Federal awards could determine conditions of employment of state public servants and employees of government instrumentalities, as the High Court confirmed in the CYSS case.16 The court has also held that there are exceptions. In 2009 in Clarke v Commissioner of Taxation,17 a unanimous High Court decided the Commonwealth could not tax the contributions to state superannuation schemes of a former member of the Parliament of South Australia. The court held that the taxing legislation in its application to state schemes of benefit to higher state office holders impaired the governmental functions of the state and was invalid in accordance with the principles laid down in the Melbourne Corporation case18 discussed in Chapter 14. Similar reasoning would apply to make employees in the higher echelons of state public service immune from the application of federal awards under para (xxxv).19 [page 293]

•

In order for a dispute to come within the power it must have an ascertainable ambit and not amount to a fanciful claim. In practice, unions, in lodging a claim against a category of employers, would often claim more than they hoped to achieve. The technical doctrine of ambit often gave rise to a false impression in the public mind of outrageous union behaviour. But an ambit claim allowed the parties to a dispute to return to the industrial tribunal for a variation of conditions, for example, for higher wages in the light of continued increases in the cost of living, without having to create a fresh dispute by so doing. The union’s framing of the original claim aimed to ensure that subsequent hearings continue to fall within the ambit of the original dispute instead of a new dispute having to be created. Although a claim might have regard to possible future developments, it could not exceed what might reasonably be thought to be attainable in the foreseeable future. In this respect, however, the High Court took a lenient view.20 Fifty years after the Harvester case, there were almost as many employees

covered by Commonwealth awards as by state awards, and decisions of the court could have a major impact on the work of state industrial tribunals. For example, during 1946 and 1947 the court was hearing evidence arising out of applications for a reduction of weekly standard hours of work from 44 to 40. Before the completion of proceedings, the New South Wales Parliament passed an Act reducing ordinary hours from 44 to 40 for the purpose of state awards. It was not within the power of the Federal Parliament to take similar direct legislative action in respect of federal awards. The characteristics of the conciliation and arbitration system described above were a significant element of public life in the 20th century. However, since the Work Choices and Fair Work legislation, para (xxxv), now virtually in disuse, is unlikely ever again to become a major source of Commonwealth industrial power.

1.

2. 3. 4. 5.

6. 7. 8. 9. 10. 11.

In 1926, an amendment granted life tenure to judges of the court in consequence of a decision of the High Court that the Commonwealth Court of Conciliation and Arbitration did not have the tenure of office required by s 72 of the Constitution for the Justices of Federal Courts. Victoria v Commonwealth (1996) 187 CLR 416; 138 ALR 129 (Industrial Relations Act case). New South Wales v Commonwealth (2006) 229 CLR 1; 231 ALR 1; [2006] HCA 52 (Work Choices case). When Victoria referred its power to regulate industrial conditions to the Commonwealth in 1996, the other states refused to follow suit. Other available enumerated powers include defence (s 51(vi)), the public service (s 52(ii)), banking (s 51(xiii)), the incidental power (s 51(xxxix)), the executive power (s 61), the territories power (s 122) and the external affairs power (s 51(xxix)) through international commitments entered into by the Commonwealth. Ex parte McKay (Harvester case) (1907) 2 CAR 1. Higgins J quoted from the Encyclical of Pope Leo XIII on Capital and Labor addressed to the hierarchy of the church. Waterside Workers’ Federation of Australia v Commonwealth Steamship Owners’ Association (1920) 28 CLR 209 at 218; [1920] ALR 233 at 236 per Knox CJ. Australian Boot Trade Employees’ Federation v Whybrow & Co (1910) 11 CLR 311; 16 ALR 513 (Whybrow’s case). Burwood Cinema Ltd v Australian Theatrical and Amusement Employees’ Association (1925) 35 CLR 528; 31 ALR 282. R v Kirby; Ex parte Boilermakers’ Society of Australia (1956) 94 CLR 254; [1956] ALR 163 (High Court); (1957) 95 CLR 529; [1957] ALR 489 (Privy Council).

12. 13. 14. 15. 16. 17. 18. 19.

20.

Jumbunna Coal Mine NL v Victorian Coal Miners’ Association (1908) 6 CLR 309; 14 ALR 701. Federated State School Teachers’ Association of Australia v Victoria (1929) 41 CLR 569; 35 ALR 129. (1983) 153 CLR 297; 47 ALR 225. Re Cram; Ex parte New South Wales Colliery Proprietors’ Association Ltd (1987) 163 CLR 117; 72 ALR 161. (1983) 153 CLR 297; 47 ALR 225. (2009) 240 CLR 272; 258 ALR 623; [2009] HCA 33. Melbourne Corporation v Commonwealth (1947) 74 CLR 31; 1947 [ALR] 377. In Austin v Commonwealth (2003) CLR 185; 195 ALR 321; [2003] HCA 3 the court applied similar reasoning to render pension entitlements of judges of the Supreme Court of New South Wales immune from federal legislation that singled them out and imposed taxation on their entitlements. The court pointed out that state superannuation entitlements encouraged lawyers to quit the lucrative pursuits of private practice and also attracted persons of competence without independent wealth. Interference with the pension entitlements would therefore be an unconstitutional interference in the government of the state. See Attorney-General (Qld) v Riordan (1997) 192 CLR 1 at 18; 146 ALR 445 at 453–4 per Brennan CJ and McHugh J.

[page 295]

Chapter 22

The Territories Power 122. The Parliament may make laws for the government of any territory surrendered by any State to and accepted by the Commonwealth, or of any territory placed by the Queen under the authority of and accepted by the Commonwealth, or otherwise acquired by the Commonwealth, and may allow the representation of such territory in either House of the Parliament to the extent and on the terms which it thinks fit.

In addition to s 122 of the Constitution, three other clauses supplement the territories power. Section 125 states that the seat of government of the Commonwealth shall be determined by the Parliament and be in New South Wales within territory granted to or acquired by the Commonwealth. Formerly known as the Federal Capital Territory, the Australian Capital Territory was surrendered by New South Wales in 1909 and accepted in 1911.1 Section 52(i) states (among other things): The Parliament shall, subject to this Constitution, have exclusive power to make laws … with respect to: (i) the seat of government of the Commonwealth, and all places acquired by the Commonwealth for public purposes; …

Unlike s 52(i), s 122 is not expressed to be subject to the Constitution. Section 122 is not stated to be exclusive to the Commonwealth, although s 111 does provide that the power will be exclusive in respect of those [page 296] territories surrendered by the states. For practical purposes, however, the territories power is exclusive of state legislative power and is treated by the High

Court as being of a plenary nature. The Commonwealth can oust any state law purporting to apply to the Australian Capital Territory or any other territory of the Commonwealth because under s 109 of the Constitution a Commonwealth law prevails over a law of a state which is inconsistent with it.

Australian Capital Territory (ACT) The seat of government is situated within the ACT in accordance with s 52 of the Constitution and the Commonwealth Parliament has exclusive legislative power with respect to it. The ACT covers approximately 2,400 square kilometres and in 2015 had a population of about 390,000, not much fewer than Tasmania. The Australian Capital Territory (Self-Government) Act 1988 (Cth) granted self-government to a reluctant local population which had previously voted against it. Canberra, as the capital city, is now a sophisticated metropolis but its grass roots remain deeply immersed in the affairs of government. Unlike the Northern Territory, the ACT has no chance of becoming a state because the seat of government has to be located in the territory surrendered by New South Wales.2 In 1915 New South Wales surrendered the small coastal area (7.36 square kilometres) known as Jervis Bay to the Commonwealth and the Jervis Bay Territory Acceptance Act 1915 (Cth) applied the law of the Australian Capital Territory there. Apart from tourism, the principal activity centres on a Commonwealth naval base.

Northern Territory At Federation, the Northern Territory was part of South Australia, but in 1907 the state willingly surrendered it to the Commonwealth.3 It covers a [page 297] large area (1,346 million square kilometres) and has a population of about 245,000, more than a quarter of whom are Aboriginal peoples. In 1974 the Commonwealth granted the territory substantial self-government.4 In 1998 the

population voted against the proposal to make the territory a state, but there is still a movement on foot and it may eventually become a state.

External territories The Commonwealth has several external territories, including the following: Australian Antarctic Territory Australia lays claim to a large slice of the icebound continent of Antarctica which Britain placed under its control in 1933. There are four permanently staffed Australia research stations, and research stations operated by other countries with Australia’s consent, but otherwise the territory is uninhabited. Other countries also claim parts of Antarctica, but non-claimant states do not recognise any of the territorial claims. The eventual status of the continent will take many years to determine. In the meantime, the Antarctic Treaty to which Australia and some 40 other countries are members has placed the situation on hold. Cocos (Keeling) Islands The Cocos (Keeling) Islands were acquired from Britain in 1955. Situated some 2,750 km north-west of Perth in the Indian Ocean, the two inhabited islands support a population of around 600. The islands were strategically important during both world wars, and on 9 November 1914 in the Battle of Cocos (one of the first naval encounters of World War I) HMAS Sydney of the Royal Australian Navy disabled the German cruiser SMS Emden. From 1827 until 1978, the islands were ruled in effect by the [page 298] Clunies-Ross family, the patriarchs of which eventually styled themselves King. The Commonwealth brought this situation to an end with the purchase (under threat of compulsory acquisition) of almost all of the islands from the CluniesRoss family in 1978.5

Christmas Island Christmas Island was acquired in 1958 from the then British colony of Singapore with United Kingdom approval and is governed under the Christmas Island Act 1958 (Cth) by an administrator and a shire council. Situated some 2,600 kilometres north-north-west of Perth, and south of Indonesia, it has a permanent population of about 1,600. At one time the island was valued for its phosphate deposits which were first exploited by a member of the Clunies-Ross family from the Cocos (Keeling) Islands. It has since become better known as the location of a detention centre for boatloads of hopeful asylum seekers coming from less fortunate parts of the world who have been intercepted by the Australian authorities. Ashmore and Cartier Islands These uninhabited islands were part of the Northern Territory until the Northern Territory was granted self-government in 1978, but are now administered by the Commonwealth under the Ashmore and Cartier Islands Acceptance Act 1933 (Cth). Norfolk Island This small Pacific island is the oldest Australian external territory. Captain Cook discovered the island in 1774 and it became at first a British penal colony and in 1897 a dependency of New South Wales. The Commonwealth acquired it from New South Wales in 1914. About half the population of around 2,000 is descended from the mutineers on Captain Bligh’s ship the Bounty and Tahitian women who travelled with them. The island had [page 299] prospered as a popular tourist destination, but has encountered financial problems. For a time, it enjoyed a measure of self-government through a legislative assembly, but in 2015 that assembly was abolished and direct rule by an Australian-appointed administrator recommenced, despite considerable

opposition from islanders.

Former territories Papua New Guinea In 1828 the Dutch took possession of the western side of the main island of New Guinea and many small islands nearby. In 1834 the Germans took the northern part of the eastern side. Under pressure from the Australian colonies, in 1888 Britain followed by annexing the rest, the southern part of the eastern side. Britain transferred it to Australia in 1906. After World War I, Australia received a mandate from the League of Nations to administer what had been German New Guinea as a trust territory. It obtained self-government in 1973, and in 1975 was granted independence by the Commonwealth and then became a member of the United Nations. The country has a parliamentary system of government and is heavily reliant on Australia for financial assistance. Nauru This very small island (21 square kilometres) was once a German possession. It contained the world’s largest phosphate deposits. It became a British mandate territory under the League of Nations in 1920 and later a trust territory administered by Australia. It was granted independence in 1968. There is an executive president selected by the unicameral parliament. It is a recipient of aid from Australia, partly in compensation for previous cavalier exploitation of the now spent phosphate deposits and, more recently, for housing Australia’s offshore processing centre, where asylum seekers are detained while their applications for refugee status are processed. [page 300]

A plenary power In 1976 in Berwick Ltd v Deputy Commissioner of Taxation, four judges of the High Court agreed that:

The power conferred by s 122 is a plenary power capable of exercise in relation to Territories of varying size and importance which are at different stages of political and economic development. It is sufficiently wide to enable the passing of laws providing for the direct administration of a Territory by the Australian Government without separate territorial administrative institutions or separate fiscus; yet on the other hand it is wide enough to enable Parliament to endow a Territory with separate political, representative and administrative institutions, having control of its own fiscus.6

Although a territory may enjoy self-government, it remains subject to the overriding power of the Commonwealth to pass laws applicable to the territory.7 In 1958, the High Court held in Lamshed v Lake8 that a law passed under s 122 can have an extraterritorial operation binding on the states so that it would displace a state law to the contrary. Lake had been charged with driving a road transport when he was not licensed under the South Australian road transport legislation. At the time he was travelling from Adelaide to Alice Springs (in the Northern Territory) and on the South Australian side of the border. A federal law governing the Northern Territory provided that trade, commerce and intercourse between the Territory and the states should be absolutely free. The majority of the court held that the Commonwealth law was binding wherever territorially the authority of the Commonwealth ran and so Lake escaped conviction. Application of the Constitution to s 122 Unlike s 51, which contains the major list of Commonwealth legislative powers, the territories power is not expressed to be subject to the Constitution [page 301] and the question has arisen in several cases as to the extent to which other provisions of the Constitution have a limiting effect on the exercise of the power. As has been pointed out, there is only one Constitution and s 122 cannot be construed as though it were a separate constitution. Thus it is read in light of the other sections. However, the High Court has a particular problem, in connection with

powers listed with qualifications in s 51, in determining whether the same qualifications restrict the general plenary power of s 122. The court has divided between judges who believe that qualifications to specific heads of power in s 51 do not limit the legislative power under s 122 and those who have held that some limitations do apply in this way. In 1969 in Teori Tau v Commonwealth,9 a unanimous High Court headed by Barwick CJ emphatically held (in a very brief judgment) that the requirement in s 51(xxxi) for the Commonwealth to pay just terms when it acquires property for Commonwealth purposes did not restrict the scope of s 122. The court took the view that no paragraph of s 51 restricted the territorial power. However, a court of entirely different composition held to the contrary in a majority four to three decision in Newcrest Mining (WA) Ltd v Commonwealth in 1997.10 A Commonwealth Act expunged the right of renewal of uranium mining leases in the Kakadu National Park of the Northern Territory held by Newcrest. It also provided for their acquisition by the Commonwealth on terms held by the court to be less than just. The majority view was that s 122 could not be disjoined from the rest of the Constitution and s 51(xxxi) applied to the acquisition.11 In 2009 in Wurridjal v Commonwealth,12 some of the Northern Territory intervention legislation (see Chapter 15) was challenged on the basis it effected an ‘acquisition of property’ without the ‘just terms’ required by s 51(xxxi). Four judges held that Teori Tau should be overruled, while Kiefel J [page 302] interpreted Teori Tau as applying only very narrowly. No judge expressed any support for Teori Tau, which can now be regarded as overturned. The question that remains is what other limits on power contained within s 51 might also be held to limit the territories power granted by s 122?

Other constitutional powers

As early as 1915, the court held in R v Bernasconi13 that Ch III of the Constitution, which deals with the powers of the federal judicature including the High Court and other federal courts, did not apply to the territories. It further decided that s 80 providing that there should be trial by jury for indictable offences ‘against any law of the Commonwealth’ did not apply in the federal territories. Although the decision has been subject to criticism in later cases, for example, by Barwick CJ in Spratt v Hermes,14 it has, until fairly recently, stood the test of time. In 1992 in Capital Duplicators Pty Ltd v Australian Capital Territory15 the court decided that s 90 applied to limit the territories power. The section provides, among other things, that Parliament’s power to impose duties of excise is exclusive, preventing the Legislative Assembly of the Australian Capital Territory from having any independent power to impose excise duties — which it had purported to do by requiring the plaintiffs to hold licences to sell their videos requiring the payment of fees related to the value of the videos sold. This was another four to three decision.16 The plain object of s 90 was to prevent the states from imposing customs and excise duties of the kind which had hampered the freedom of trade between the colonies. The case for its application to the territories is less than compelling. The Commonwealth can at any time restrict the legislative power of one of its territories to impose an excise duty. [page 303] Section 116 of the Constitution prohibits the Commonwealth from making any law for establishing a religion and from prohibiting the free exercise of any religion.17 Various judicial statements, some of them obiter, suggest or state that the prohibition applies to laws made under the territories power. Such a view was expressed by four members of the High Court including Dixon CJ in Lamshed v Lake.18 Such observations make it doubtful whether Bernasconi would be decided in the same way today.

Chapter III and s 122 The High Court is very protective of its ultimate monopoly in the exercise of the judicial power of the Commonwealth. One consequence has been that the executive government often has a major problem when attempting to create adjudicative tribunals without interfering with the court’s judicial power, or which go beyond the dimensions that the court has given to the concept of the judicial power of the Commonwealth. In 1915 in Bernasconi, the High Court decided that Ch III of the Constitution, relating to the judiciary, did not apply to the territories because they were not part of the Commonwealth. In Eastman v R19 the court held by majority that judges of territorial courts did not need to have the tenure accorded federal courts under s 72 in Ch III and could be appointed for short periods on an acting basis. Yet in 2004 in North Australian Aboriginal Legal Aid Service Inc v Bradley,20 six judges of the High Court unanimously decided that at least one part of Ch III of the Constitution applied to the Northern Territory. The court held that a territorial court could exercise the judicial power of the Commonwealth if invested by laws of the Commonwealth Parliament made under s 76(ii) of the Constitution. Further, it was implicit in Ch III, [page 304] and necessary for the preservation of its structure, that a court capable of exercising the judicial power of the Commonwealth should be and appear to be independent and impartial.21 The case was a challenge to the validity of an appointment of a territorial magistrate under the Magistrates Act 1977 (NT) to hold office until the age of 65, but providing for remuneration for only a twoyear period. The court held the appointment to be valid. In so doing it considered that payment provisions for the magistrate did not compromise or jeopardise the integrity of the Territory magistracy. In 1999 in Re Governor, Goulburn Correctional Centre; Ex parte Eastman,

Gleeson CJ and McHugh and Callinan JJ stated that the relationship between s 122 and Ch III was ‘a problem of interpretation … which has vexed judges and commentators since the earliest days of Federation’.22 This is an area of law which has been correctly said to involve ‘baroque complexities and many uncertainties’.23 The extent to which Ch III applies to the territories has still to be worked out and it may take a long time.

1. 2. 3. 4. 5. 6. 7. 8. 9. 10. 11. 12. 13. 14. 15. 16. 17. 18.

19. 20. 21. 22. 23.

Seat of Government Act 1908 (Cth) and Seat of Government Acceptance Acts 1909 and 1922 (Cth) and the Seat of Government Surrender Act 1909 (NSW). A similar view was expressed by Brennan, Deane and Toohey JJ in Capital Duplicators Pty Ltd v Australian Capital Territory (1992) 177 CLR 248 at 273; 109 ALR 1 at 15. Northern Territory (Surrender) Act 1907 (SA) and the Northern Territory Acceptance Act 1910 (Cth). Northern Territory (Administration) Act 1974 (Cth). See also Clunies-Ross v Commonwealth (1984) 155 CLR 193; 55 ALR 609. 298 (1976) 133 CLR 603 at 607; 8 ALR 580 at 583. Northern Land Council v Commonwealth (1986) 161 CLR 1; 64 ALR 493. (1958) 99 CLR 132; [1958] ALR 388. (1969) 119 CLR 564; [1971] ALR 190. (1997) 190 CLR 513; 147 ALR 42. The majority judges were Toohey, Gaudron, Gummow and Kirby JJ. Brennan CJ, Dawson and McHugh JJ dissented. (2009) 237 CLR 309; 252 ALR 232; [2009] HCA 2. (1915) 19 CLR 629; 21 ALR 86 (Bernasconi). (1965) 114 CLR 226; [1966] ALR 597. (1993) 178 CLR 561; 118 ALR 1. The majority judges were Brennan, Deane, Toohey and Gaudron JJ. Mason CJ, Dawson and McHugh JJ dissented. The section appears in Ch V entitled ‘The States’ yet strangely it does not apply to them. See Lamshed v Lake (1958) 99 CLR 132 at 143; [1958] ALR 388 at 392 for the Chief Justice’s observations. See also Toohey, Gaudron and Gummow JJ in Kruger v Commonwealth (Stolen Generations case) (1997) 190 CLR 1; 146 ALR 126. (2000) 203 CLR 1; 172 ALR 39; [2000] HCA 29. (2004) 218 CLR 146; 206 ALR 315; [2004] HCA 31. The judges relied mainly on Kable v Director of Public Prosecutions (NSW) (1996) 189 CLR 51; 138 ALR 577. (1999) 200 CLR 322; 165 ALR 171; [1999] HCA 44 at [6]. G Lindell, Cowen and Zines’s Federal Jurisdiction in Australia, 4th ed, Federation Press, Sydney, 2016, p 250.

[page 305]

Chapter 23

Freedom of Interstate Trade, Commerce and Intercourse 92. On the imposition of uniform duties of customs, trade, commerce, and intercourse among the States, whether by means of internal carriage or ocean navigation, shall be absolutely free.

Although the framers spent much of their time finding agreement between protectionist Victorian representatives and the New South Wales advocates of free trade such as George Reid, there was an overwhelming understanding among all delegates that interstate trade and commerce had to be freed from colonial customs duties and other fiscal impediments. The problem was to create a formula which would give effect to the common intention. Section 92 has turned out to be the second most litigated provision in the Constitution. More than 140 cases have considered its interpretation and application. Decisions have lacked consistency and have produced bemusing results, as the High Court interpreted decisions of the Privy Council before appeals to that body ceased in 1975 (see Chapter 13). In some cases there was speculation about the intention of the founders to be extracted from the formula used but, in accordance with earlier practice, without reference to the Convention Debates themselves. At the beginning in 1891, Sir Henry Parkes speaking to his introductory resolutions said: ‘I seek to define what seems to me an absolutely necessary condition of anything like perfect federation, that is, that Australia, as [page 306]

Australia, shall be free — free on the borders, free everywhere — in its trade and intercourse between its own people.’1 The 1891 Convention approved a draft cl 89 almost identical to the current text. During the Sydney session of the 1897 Convention, Edmund Barton indicated that he intended to confine the section to protecting trade and intercourse throughout the Commonwealth from restriction or interference by any taxes, charges or impost,2 but the clause remained unchanged. During the session at Melbourne, Isaac Isaacs referred to views on the clause (then cl 89) expressed by Sir Samuel Griffith, one of the joint authors of the original federal resolutions but by then Chief Justice of Queensland. Griffith said: I apprehend that the real meaning is that the free course of trade and commerce between different parts of the Commonwealth is not to be restricted or interfered with by any taxes, charges, or imposts. Would it not be better to use these or similar words?3

Isaacs urged the Convention to accept Griffith’s views, to which Barton replied that his inclination was in favour of the Isaacs view. Isaacs seems to have thought that the drafting committee would amend the clause as Barton indicated, but later, when he found this had not been done, he moved his own amendment. It was then that George Reid, in opposition to the proposal, made his celebrated pronouncement: It is a little bit of laymen’s language which comes in here very well … The thing in view in this clause is not so much the goods that will pass one way or the other, but that the relationship between those who deal in commodities, and send them from port to port within the Commonwealth,

[page 307] shall not be hampered by laws or officers of the Commonwealth in the sense of interfering with absolute equality of intercourse.4

It remains a mystery why the drafting committee chose to adopt Reid’s pronouncement. It is possible that frequent litigation and governmental trauma could have been avoided if the alternative suggested text had been adopted instead.

After eight years of federation, the first case under the section arose. The High Court considered a Western Australian law which levied an impost of £2 on wine shops selling Western Australian wines but a £50 licence fee if wine produced in another state was also sold. The court held that the scheme infringed s 92.5 On any test subsequently adopted by the court in later cases, the law would still have violated the section.

Freedom from all governmental control In 1920 there was a major attempt to define the meaning of the section in McArthur v Queensland.6 The Profiteering Prevention Act 1920 (Qld) made it unlawful for any trader to sell in Queensland a commodity at a price higher than the declared price. The Act applied indiscriminately to all named commodities including those coming from other states. The court held that the law infringed the constitutional prohibition. Isaacs J delivered the leading judgment, holding that the acts which constituted interstate trade, commerce or intercourse were absolutely free from all governmental control.7 Under Isaacs J’s influence, the court held further that since interstate trade and commerce was absolutely free and the Commonwealth had power under s 51(i) to make laws with respect to it, s 92 did not bind the Commonwealth. [page 308]

State compulsory marketing schemes for primary products Even before McArthur’s case, the states were concerned to maximise the export trade in their primary products in order to maximise the overall return to growers. The problem was that export prices were lower than those for home consumption sales and hence the schemes were compulsory to ensure an equalisation of returns. One statutory scheme applied in South Australia to dried fruits, which was a major export industry for that state. The Dried Fruits Act 1924 (SA) set up a

Dried Fruits Board and gave it power to acquire all dried fruits grown in the state except those exported under licence under another Act. The scheme was predicated upon a similar scheme coming into force in Victoria, which was the biggest dried fruits producer at the time. Under the South Australian scheme, a system of quotas restricted the quantity of fruit that a grower could sell within Australia, including interstate. In James v Cowan,8 grower James sought damages for trespass to his goods under the acquisition scheme. After his challenge failed in the High Court in 1930, James appealed to the Privy Council. The Privy Council in 1932 held that the obvious purpose of the legislation was to force surplus fruit off the South Australian market and in so doing it interfered with the interstate market which would otherwise be open to James. Accordingly, the legislation infringed s 92. The Privy Council paid no regard to the fact that the object of the marketing scheme was beneficial to the dried fruits industry as a whole. Following James v Cowan, the Commonwealth, at the instigation of the states concerned, took over the reins, since it was not bound under s 92. The Dried Fruits Act 1928 (Cth) and regulations required growers to be licensed, and to make interstate deliveries only on condition of meeting an export quota starting at 60 per cent of the licensee’s production. [page 309] The Commonwealth Act dealt only with interstate and overseas trade, since the states could deal with intrastate trade within their borders without regard to s 92. James challenged the Commonwealth scheme again in 1936 in James v Commonwealth.9 Again the case went to the Privy Council after the High Court felt constrained to follow the McArthur ruling that the Commonwealth was not bound by s 92 — albeit with judges including Dixon J holding views to the contrary. The Privy Council held that the Commonwealth was also bound by s 92 and further that the Commonwealth Act infringed the section. According to the Privy Council, the test to be applied was freedom at the crucial point in

interstate trade, that is, at the state border. Under this test, governmental controls which operated to impose restrictions on trade preceding the passage of goods across state borders would infringe s 92, as in James v Cowan. The decision was a disaster for orderly marketing schemes. The freedom at the frontier test led to much litigation. It has to be said, however, that there was no suggestion during the Convention Debates that the Commonwealth should not be bound by s 92.

State railways and interstate road transport At Federation, capital investment in railway systems was a major item of state expenditure, most of it funded by borrowing on established loan markets. The railways provided almost all long-distance haulage by land. In 1900 motor vehicles were still primitive but improvements were rapid and by the 1920s they could be used economically in long distance haulage. By 1930 private operators were in a position to compete with state railways both in intrastate and interstate transport of goods. The governments of New South Wales, Victoria and Queensland looked to protect their railway systems by legislation requiring hauliers operating public vehicles to be licensed, to confine their operations to specific [page 310] routes, and to pay charges designed to lessen their ability to compete with the railways.10 In 1933 there began the first of a long series of challenges to the validity of the state laws which maintained discretionary licensing systems and imposed substantial registration and other charges. All were unsuccessful,11 however a clear cut division emerged in the High Court led by Dixon J. In one of the last cases in 1950, McCarter v Brodie,12 involving the Victorian discretionary licensing system, Dixon J said that if he were free from previous precedents, he would not uphold the state law but he felt he should act in conformity with them.

The situation came to a head in Hughes & Vale Pty Ltd v New South Wales (No 1) in 1954.13 The Privy Council decided that the state transport legislation contravened s 92. Their lordships took the unusual course of applying Dixon J’s reasons in McArthur v Brodie and overruled the earlier transport decisions of the High Court. They held that the licensing and taxation provisions in the New South Wales Acts were so discriminatory as to allow the Director of Transport and Highways to dictate the terms and conditions on which it would license Hughes and Vale to carry on their interstate transportation business. Further, the object of the substantial mileage charges which could be levied on interstate haulage was to protect the railways of New South Wales. On this basis, the law was held to be invalid. [page 311] The Privy Council acknowledged that a state or the Commonwealth could make reasonable charges for the use of the facilities they provided as long as they did not amount to a hindrance to interstate trade.

Road charges Further cases occurred in the High Court as a sequel to the Privy Council decision. In Hughes & Vale Pty Ltd v New South Wales (No 2) in 1955, the High Court, with Dixon now Chief Justice, held by a majority that New South Wales could impose reasonable charges on public motor vehicles engaged in interstate trade, but the charges had to be shown on their face not to go beyond a reasonable non-discriminatory contribution to the cost of maintaining the public roads they used.14 However, no charge could include any provision for the capital cost of providing or reconstructing these roads. According to the court, the roads were there at Federation for public use in the ordinary course of trade and commerce among the states, and no charge could be levied on the basis of ownership. Thus, legal semantics triumphed over economic reality. Roads built to pre-Federation standards simply could not have coped with transport as known in 1956. Since states had to meet the capital costs of both

their roads and their railway systems, commercial road transport was placed at a substantial advantage. New South Wales and Victoria brought their legislation into line with the High Court’s judgments. In the meantime, interstate road transport, freed from discretionary licensing charges and paying only modest road usage charges, became a rapidly expanding industry which overtaxed major interstate highways. A further consequence was that some intrastate traffic was converted into interstate carriage by carriers operating in border areas who deliberately detoured across state boundaries in order to avoid the payment of the more substantial charges imposed on intrastate road transport. [page 312]

The Bank Nationalisation case Pursuant to Labor Government policy, the Banking Act 1947 (Cth) contained a scheme for the nationalisation of private banking in Australia. The legislation was rejected as ultra vires by the High Court in Bank of New South Wales v Commonwealth in 1948.15 A principal ground of invalidity was that s 46 of the Act in effect amounted to a prohibition on private banking, which the court held to offend s 92. The Commonwealth appealed to the Privy Council, which dismissed the appeal and took the opportunity to enunciate a new formula for interpreting s 92. The test, it said, should be whether the legal effect (as distinct from the ulterior economic or social effect) of a particular restriction on interstate trade or commerce was in the first place direct or remote. If the legal effect was direct, the operation of the measure could only be upheld if in its true nature it was regulatory and not restrictive. The answer depended upon the particular circumstances of each case. The Privy Council also held that s 92 guaranteed the freedom of the individual and in so doing it referred back to the cases in which dried fruits producer James had individually taken on both the state and the Commonwealth.16 The Privy Council specifically rejected the view espoused by Evatt J in several cases, that as long as the flow of interstate trade and commerce was not attenuated, or there was no discrimination even in a

broad sense against interstate trade, s 92 was not infringed.

Sequels to the Bank Nationalisation case Upon Sir Owen Dixon’s retirement in 1969, Sir Garfield Barwick left politics to become Chief Justice. He had been the highly successful advocate for the bank before the Privy Council in the Bank Nationalisation case. During the Dixon era, the court had decided that the production of margarine, some of which would eventually be sold interstate, was not [page 313] protected from legislative control by s 9217 and that the act of importation of aircraft to be used in interstate aviation preceded the protection of s 92.18 Barwick CJ, building on this base established by Dixon, took the view that only the essential concept of interstate trade and not the trappings around it should be protected by s 92. On this view, laws had to have a direct effect on interstate trade before they could infringe s 92. The Chief Justice’s view gained the support of some of his fellow judges, but the court became divided on the issue. By 1975 the Barwick approach was upheld by a slim majority in North Eastern Dairy Co Ltd v Dairy Industry Authority of New South Wales.19 However, a difference of opinion emerged among the majority judges. In deciding whether the economic consequences of a law or executive act were merely regulatory and not restrictive, the Chief Justice took a narrow view, consistent with the Bank Nationalisation case decision, that s 92 guaranteed the right of an individual to engage in interstate trade without regard to further considerations such as the public interest. In the North Eastern Dairy case, Barwick CJ said ‘the protection of the individual is not merely incidental or peripheral to the enforcement of the constitutional guarantee. Indeed, whilst not exhausting the operation of section 92, it is central to it’.20 On the other hand, Mason J said ‘s 92 has a predominant public character and … the protection which it gives to the rights of the individual is incidental to and consequential

upon the protection which is given to the entire concept of interstate trade’.21 The conflict of views gained further impetus in some later cases but the Barwick view gradually lost ground. Thus in Miller v TCN Channel Nine Pty Ltd in 1986,22 some years after Sir Garfield Barwick’s retirement, the High Court [page 314] held by a majority that the use by Channel Nine of an unauthorised television transmitter it had erected as a network link between Sydney and Melbourne was protected by s 92. It also held that the television station could be validly prosecuted for its illegal erection, as distinct from its use.

Victory for free trade A culmination to the incessant conflicts of view occurred in 1988 in Cole v Whitfield.23 By this time, Sir Anthony Mason had become Chief Justice. Free from the shackles of variable Privy Council decisions, the High Court by unanimous decision gave a completely new twist to the interpretation of s 92. Regulations made under the Fisheries Act 1959 (Tas) prohibited anyone from possessing male crayfish below 11 centimetres in length and female crayfish less than 10.5 centimetres, ‘whether or nor the fish was taken in State fishing waters’. A Tasmanian company which bought and sold crayfish in Tasmania purchased some crayfish from South Australia which were above the minimum size under South Australian law but below the minimum size specified in the Tasmanian regulations. The defendant, the manager of the Tasmanian business, was charged with an offence under the Tasmanian Act but was found not guilty because the interstate purchase was protected by s 92. The plaintiff, a fishery inspector, sought to have the decision overturned in the Tasmanian Supreme Court. The case was removed to the High Court because of its constitutional significance. The High Court unanimously held that s 92 was not infringed by

application of the Tasmanian Act, and in so doing it enunciated a new formula for applying the section, which cast aside all previous tests. According to the court, there were two questions to be asked. The first was whether a challenged law discriminated against interstate trade and commerce. If it did not it was valid. If, however, the law was discriminatory, [page 315] the second question to be asked was whether this discrimination was of a protectionist kind: that is, whether it operated to raise a protective barrier around intrastate trade, for example, in the instant case, around the Tasmanian crayfish industry. As to the first question, the court held that a law which was not on its face discriminatory could, having regard to all relevant facts, nevertheless operate in a discriminatory fashion. The court acknowledged that the Tasmanian law imposed a burden on interstate trade but this did not have an impermissible discriminatory effect. It went further and held that, even if it did, the effect was not such as to give the Tasmanian crayfish industry a competitive or market advantage over crayfish imported from South Australia. According to the court, the facts before it made it clear that the extension of the state prohibition against sale and possession to crayfish imported from South Australia was ‘a necessary means of enforcing the prohibition against the catching of undersize crayfish in Tasmanian waters’. The court accepted without qualification that minimum catch sizes were necessary to sustain fisheries in Tasmania and South Australia and that fish in the warmer waters in South Australia reached maturity at an earlier age and hence smaller size than in Tasmania. It further accepted that Tasmanian fisheries inspectors could not fulfill their task effectively if the law did not apply to South Australian fish because they could not identify whether or not undersize fish in possession of local traders were caught in Tasmanian waters. Hence, Tasmanian minimum sizes had to apply. In outline, the following features emerged from this landmark case:

•

The Commonwealth was bound by s 92, but since the Commonwealth had no direct power to make laws with respect to intrastate trade, it was less likely to encounter problems under s 92. A Commonwealth law which had a discriminatory operation would have to give a state a protectionist advantage over other states before it infringed s 92.

•

The history of s 92 in the Convention Debates could be referred to for the purpose of identifying the contemporary meaning of the language used in the Constitution, the subject to which the language was directed [page 316] and the objectives of the federal movement. Reference to the debates could not be made to attribute to the words used the effect which the founding fathers subjectively intended the section should have.

•

Section 92 established a free trade area and prohibited the imposition of protectionist burdens which were not limited to the imposition of duties at state borders but included fiscal and non-fiscal burdens which discriminated against interstate trade and commerce. The question of discrimination embraced factual discrimination as well as discrimination by legal operation.

•

Intercourse was to be construed separately from trade and commerce and amounted to a personal freedom to pass from state to state without restriction. The freedom could exist even in time of war when the Commonwealth made extensive use of its defence power.

•

The court held that the criterion of operation formula espoused in Dixon CJ’s judgments, which confined the operation of s 92 to a law which fastened onto something which itself formed an integral part of interstate trade and commerce, was highly artificial. Interstate trade and commerce could be burdened in other ways. Accordingly, the court refused to follow earlier cases of the Dixon era such as the Marrickville Margarine case in which the production of margarine as distinct from the actual trade in margarine was not protected by s 92. Another instance was the

Ipec Air case where the prohibition on the importation of aircraft intended for use in interstate trade was held to fall outside the constitutional prohibition.24 The same point was made in relation to Mansell v Beck25 concerning state legislation which prohibited the sale of a ticket in a foreign lottery. It had been held that the law did not infringe s 92 because it did not select an essential attribute of interstate trade and commerce. However, according to the court in Cole v Whitfield, it did not make sense, even on the individual [page 317] rights approach, not to apply s 92 to these cases when they had such an obvious effect on interstate trade and commerce. •

The legalism associated with the conceptual approach had resulted in some instances of interstate trade and commerce being in a privileged position compared with intrastate trade and commerce. For example, the court cited a New South Wales Act which imposed an ad valorem duty based on the value of the vehicle upon the certificate of registration of the vehicle. The duty applied to all motor vehicles irrespective of their use, yet the court had held in Finemores Transport Pty Ltd v New South Wales26 that the duty could not be validly imposed on vehicles used in interstate trade.

•

The court also rejected decisions of the Privy Council which it had previously followed, insofar as they were based on construing s 92 as a guarantee of the right of the individual to engage in interstate trade and commerce.

•

A slightly different approach would be to acknowledge that the burden on interstate trade was discriminatory, but hold that the state law, having regard to its purpose, was a reasonable regulation of trade which did not place the trade between Tasmania and South Australia at a sufficient disadvantage to constitute a protective barrier.

•

The extension of the constitutional prohibition to laws, executive action,

things or events preceding or anterior to interstate trade accords with the realities of trade and commerce and represents a much needed departure from the application of legalism without regard to economic consequences and community interests. •

An alternative view of s 92 was expressed by Murphy J, who was Attorney-General in the Whitlam Labor Government before his appointment to the High Court in 1975. He believed the section should be read as only requiring freedom from the imposition of taxes and other pecuniary imposts,27 much as Isaac Isaacs had advocated [page 318] in the Melbourne session of the Convention Debates. Murphy J also considered that the Constitution incorporated an underlying theme that everyone should have freedom of movement and communication throughout the Commonwealth.

Subsequent cases In Bath v Alston Holdings Pty Ltd,28 a judgment handed down shortly after Cole v Whitfield, the court held by a slim four to three majority that the Business Franchise (Tobacco) Act 1974 (Vic), which provided licensing requirements for retail tobacconists, infringed s 92. The court held that the Act was discriminatory insofar as a Victorian retailer had to pay a licence fee and an ad valorem duty on tobacco bought from Queensland whereas if the retailer bought tobacco from a licensed wholesaler, the ad valorem duty would have been paid by the wholesaler albeit at the same rates of taxation. The court was unanimous in holding that the Act was discriminatory, but only the four majority judges held that the legislation conferred a protectionist advantage on Victoria. The majority judges found a protectionist advantage even though the total revenue that Victoria received from its licensing fees remained the same irrespective of whether all tobacco sold by retailers in Victoria was purchased by Victorian wholesalers or directly from interstate sources. The majority decision is open to

the criticism that the economic consequences should not have been viewed in isolation from the broader economic consequences for Victoria, which were not synonymous with those of the retail trader. From the state viewpoint, it was simply less costly and less troublesome to collect the tax from wholesalers than from retailers. After Cole v Whitfield, a different kind of marketing case arose in New South Wales in 1990 in Barley Marketing Board (NSW) v Norman.29 The Barley Board was established under a state Act and pursuant to that Act all barley grown in the state was acquired by the Board, which then became the [page 319] owner of it. The purpose of the scheme was to enhance returns to local barley growers who had in the past experienced ups and downs in their industry. Barley grown in other states was not acquired. At one stage, malting grade barley was divested by the Board, but following Cole v Whitfield the Board discontinued the practice. In the case, a Victorian maltster had entered into a contract to buy barley from two New South Wales growers and the Board instituted proceedings against all three. The court held unanimously that the Act did not impose a discriminatory burden of a protectionist kind on the state and hence s 92 was not infringed. As the court pointed out, on the agreed facts before it, the effect of the scheme was that neither maltsters in New South Wales nor maltsters in Victoria could buy from New South Wales growers, but each could buy from Victorian growers. Hence they were on an equal footing. The case was a further example of the court’s move away from the individual rights theory of s 92. Castlemaine Tooheys Ltd v South Australia,30 also decided in 1990, was a case in which a South Australian Act aimed at lessening pollution from used drinks containers required different refundable deposits on retail sales depending on whether the container was recyclable or not. The court held, on the facts, that the Act conferred a discriminatory protectionist advantage in favour of brewers in South Australia, who were presenting their product in reusable containers. The Victorian plaintiff company, which was seeking to enlarge its share of the

South Australian market, only produced its products in non-recyclable containers. The court rejected South Australia’s claim that the objective of the legislation was the control of litter and the restriction on interstate trade was merely incidental to it. The High Court, comprising five judges, held unanimously that the practical effect of the scheme was to prevent the plaintiff’s incursion into the South Australian packaged beer market. The court accepted that the conservation of natural resources and the control of litter could be a legitimate objective, but held that South Australia’s [page 320] Act went beyond what was reasonably necessary and was disproportionate to the ends to which the legislation was directed. As such, the legislation imposed an impermissible burden on interstate trade. The state was left to ponder the means by which it could meet the litter problem without offending s 92. Discarded unrefillable glass beer bottles are a familiar sight on the Australian landscape. The three most recent important cases on s 92 concern the traditional Australian pastime of betting on the horses — but in the context of opportunities for interstate betting using the internet which far outstrip anything even the most enterprising SP bookmaker could have dreamed of. The advent of online ‘betting exchanges’ threatened the financial relationship between licensed intrastate betting and the horse racing industry in each state. The legislation challenged in Betfair Pty Ltd v Western Australia31 in 2008 took a simple but blunt approach: it banned betting using betting exchanges, and banned the publication of race fields without prior approval. Betfair Pty Ltd was a betting exchange licensed under the law of Tasmania, and it challenged the Western Australian provisions on the basis that they impermissibly burdened trade (betting) between Western Australia and Tasmania. The court agreed: the effect of the impugned provisions was to secure the market position of the licensed Western Australian betting agencies by excluding the Tasmanianregistered Betfair. This was a discriminatory burden of a protectionist kind, and violated s 92. Some novel language found its way into the court’s judgment:

‘cross-elasticity of demand’ and ‘close substitutability’ were referred to in the court’s assessment of the relevant market in which interstate trade in betting occurred.32 The Act challenged in Betfair Pty Ltd v New South Wales33 in 2012 was much more nuanced: it imposed, in exchange for permission to use [page 321] race field information, a fee of 1.5 per cent of the wagering turnover. This same imposition applied to all forms of betting. Betfair claimed that it was particularly disadvantaged because its narrower margins meant the 1.5 per cent fee had a more significant effect on its business model than on the business models of more traditional better operators. The challenge failed. The court emphasised that s 92 is (relevantly) directed to impositions on interstate trade — and no such imposition could be demonstrated with the evidence Betfair had assembled, which related only to its own competitive position and not the impact on interstate trade generally. The decision serves to emphasise the departure from any individual rights understanding of s 92. A similar result was reached in a challenge to the same provision decided on the same day in Sportsbet Pty Ltd v New South Wales.34

Concluding observations While the court did not expressly overrule previous cases in Cole v Whitfield, at least most of the Hughes & Vale collection of transport cases and the James v Commonwealth set of marketing schemes would most likely be decided differently under the Cole v Whitfield test.35 Other cases which were held to fall outside the protection of s 92 such as the Marrickville Margarine case and IPEC Air case would not be decided differently now because the legislation in question in both instances did not discriminate against interstate trade. A decided advantage of the new test is that the court has dispensed with

many of the technicalities associated with the raft of cases in which legalism prevailed. That the court might have exposed itself to the vagaries of expert economic evidence is probably not too high a price to pay for an approach to s 92 that is much more consistent with its apparent purpose. [page 322] Readers may gain some greater understanding of the court’s problems about s 92 from Rich J’s lament in James v Cowan in 1930. His Honour observed: The rhetorical affirmation of sec 92, that trade, commerce and intercourse between the States shall be absolutely free, has a terseness and elevation of style which doubtless befits the expression of a sentiment so inspiring. But inspiring sentiments are often vague and grandiloquence is sometimes obscure. If this declaration of liberty had not stopped short at the high-sounding words “absolutely free”, the pith and force of its diction might have been sadly diminished. But even if it was impossible to define precisely what it was from which inter-State trade was to be free, either because a commonplace definition forms such a pedestrian conclusion, or because it needs an exactness of conception seldom achieved where constitutions are projected, yet obmutescence was both unnecessary and unsafe. Some hint at least might have been dropped, some distant allusion made, from which the nature of the immunity intended could afterwards have been deduced by those whose lot it is to explain the elliptical and expound the unexpressed. As soon as the section was brought down from the lofty clouds whence constitutional precepts are fulminated, and came to be applied to the everyday practice of trade and commerce, and the sordid intercourse of human affairs, the necessity of knowing and so determining precisely what impediments and hindrances were no longer to obstruct inter-State trade obliged this Court to attempt the impossible task of supplying an exclusive and inclusive definition of a conception to be discovered only in the silences of the Constitution.36

The present state of s 92 jurisprudence indicates that, even with the clarifications offered by Cole v Whitfield, the section remains potentially challenging. If the section forbids discriminatory burdens of a protectionist kind, and is directed to trade as a whole and not the trading position of a particular individual, perhaps the greatest issue for its future is the extent to which the court will find itself reliant on expert evidence of the economic impact of impugned provisions when applying s 92.

1.

Official Report of the National Australasian Convention Debates, Sydney, 4 March 1891, p 24.

2. 3. 4. 5. 6. 7. 8. 9. 10.

11. 12. 13. 14. 15. 16. 17. 18. 19. 20. 21. 22. 23. 24. 25. 26. 27. 28. 29. 30.

Official Record of the Debates of the Australasian Federal Convention, Vol 2 Second session, Sydney, 2– 24 September 1897 (22 September 1897), p 1064. Official Report of the National Australasian Convention Debates, Third session, Melbourne, 1898 (16 February 1898), p 1014. Official Report of the National Australasian Convention Debates, Third session, Melbourne, 1898 (16 February 1898), p 2367. Fox v Robbins (1909) 8 CLR 115; 15 ALR 112. (1920) 28 CLR 530; 27 ALR 130 (McArthur’s case). A minor qualification to this sweeping test was that state laws directed to subjects such as trade in dangerous or stolen goods would not infringe the section. (1930) 43 CLR 386; [1930] ALR 125 (High Court) and (1932) 47 CLR 386; 38 ALR 334; [1932] AC 542 (Privy Council). (1935) 52 CLR 570; [1935] ALR 275 (High Court); (1936) 55 CLR 1; [1936] ALR 333; [1936] AC 578 (Privy Council). Interstate transport was intended by the founders to be within the central area of authority vested in the Inter-State Commission to be established by Parliament pursuant to s 101 of the Constitution. The Commission was specifically given powers of adjudication. However, the High Court held in New South Wales v Commonwealth (1915) 20 CLR 54; 21 ALR 128 (Wheat case) that the Commission’s adjudicative power did not allow it to usurp any part of the judicial power of the Commonwealth over which the High Court claimed a monopoly. Thus, the Commission could not make a binding and enforceable decision as it had purported to do in the case before the court. By the 1950s, the Commission had ceased to exist. Willard v Rawson (1933) 48 CLR 316; 39 ALR 209 (Victoria); R v Vizzard; Ex parte Hill (1933) 50 CLR 30; [1934] ALR 16 (New South Wales). (1950) 80 CLR 432; [1950] ALR 385. (1954) 93 CLR 1; [1954] ALR 1069. Hughes & Vale Pty Ltd v New South Wales (No 2) (1955) 93 CLR 127; [1955] ALR 525. (1948) 76 CLR 1; [1948] 2 ALR 89 (Bank Nationalisation case). Commonwealth v Bank of New South Wales (1949) 79 CLR 497; [1949] ALR 925; [1950] AC 235. Beal v Marrickville Margarine Pty Ltd (1966) 114 CLR 283; [1967] ALR 76 (Marrickville Margarine case). R v Anderson; Ex parte IPEC Air Pty Ltd (1965) 113 CLR 177; [1965] ALR 1067 (IPEC Air case). (1975) 134 CLR 559; 7 ALR 433 (North Eastern Dairy case). North Eastern Dairy case (1975) 134 CLR 559 at 581–2; 7 ALR 433 at 455. North Eastern Dairy case (1975) 134 CLR 559 at 614–15; 7 ALR 433 at 471. (1986) 161 CLR 556; 67 ALR 321. (1988) 165 CLR 360; 78 ALR 42. Under the court’s current test, however, neither case would offend s 92 because no protectionist advantage would accrue to any state. (1956) 95 CLR 550; [1956] ALR 1121. (1978) 139 CLR 338; 19 ALR 289. See, for example, Buck v Bavone (1976) 135 CLR 110; 9 ALR 481. (1988) 165 CLR 411; 8 ALR 669. (1990) 171 CLR 182; 96 ALR 524. (1990) 169 CLR 436; 90 ALR 371.

31. 32. 33. 34. 35. 36.

(2008) 234 CLR 418; 244 ALR 32; [2008] HCA 11. (2008) 234 CLR 418 at 480; 244 ALR 32 at 62; [2008] HCA 11 at [115]. (2012) 249 CLR 217; 286 ALR 221; [2012] HCA 12. (2012) 249 CLR 298; 286 ALR 404; [2012] HCA 13. The court said that it was not necessarily true that all compulsory acquisition marketing schemes would be valid. (1930) 43 CLR 386 at 422–3; [1930] ALR 125 at 138.

[page 323]

Part Five Federalism

[page 325]

Chapter 24

Commonwealth-State Relations As originally drafted, the Constitution does not provide any formal machinery for consultations between the Commonwealth and the states.1 Several sections, however, provide for Commonwealth–state cooperation. In some instances cooperation is a matter of necessity, for example, under s 120 the states have an obligation to receive into their prisons convicted offenders against Commonwealth laws. The Commonwealth has an obligation under s 119 to protect every state against invasion. Other sections provide for cooperation as a matter of agreement, for example, s 51(xxxiv) authorises the construction of railways by the Commonwealth within a state with the state’s consent. In Chapter 7, there is a discussion about how the founders failed to secure the financial independence of the states. Federal history since then suggests that this would have been in any event an impossible task for them. Fortunately the insertion of s 96 into the Constitution, giving the Commonwealth the power to make grants of financial assistance to the states, on terms and conditions that Parliament thinks fit, provided a safety valve, enabling the states to embark on projects beyond their own resources to accomplish. Thus, the Federal Aid Roads Act 1926 (Cth) provided the states with financial assistance to make and maintain principal roads. Victoria and New South Wales unsuccessfully challenged the Act, arguing that the Commonwealth could not attach conditions intended to impose [page 326]

results which it could not achieve in the exercise of its legislative powers.2 By its unrestrictive interpretation of the power conferred by s 96, the High Court opened the way for the Commonwealth to use its commanding financial position to intervene in state affairs. In 1908, the court had cemented the Commonwealth’s financial dominance, by its decision in the Surplus Revenue case,3 which allowed the Commonwealth to establish trust accounts to avoid paying surplus revenue to the states, as required by s 94 of the Constitution. Advocates of state rights have criticised both decisions, but they have been of major consequence in enabling the federal system to function satisfactorily in the latter half of the 20th century, after vast changes to the conditions familiar at the time of Federation. A decisive turning point in the relationships between the states and the Commonwealth occurred in 1942 when the High Court upheld the Commonwealth’s Uniform Income Tax Scheme, under which the states surrendered (in the sense of failing to exercise) their right to impose income tax and in return received reimbursement grants from the Commonwealth under s 96.4 The income tax system has been an exclusive function of the Commonwealth ever since. The Commonwealth cannot prohibit a state from exercising any of its legislative powers and it remains open to the states, legally speaking, to withdraw from the current taxation arrangements with the Commonwealth. To do so would cause political upheavals of impracticable dimensions as well as potentially severe economic consequences. In practical terms, it would be impossible for a state to withdraw singly, because federal taxation would continue to apply to it at the same rate as to the other states, since under s 51(ii) of the Constitution a Commonwealth law with respect to taxation must not discriminate between states. It is perhaps a surprise that the founders did not attempt to insert in the Constitution any machinery for consultations between the Commonwealth [page 327]

and the states to allow for adjustments to be made in the earlier years of the federal system, or insert a constitutional requirement that all parties to the federation confer on a regular footing. The introduction in 1904 of periodic conferences with the state premiers was largely a Commonwealth initiative. Factors affecting the federal balance since the Uniform Tax cases include: •

growth of the Australian population from about 6 million in 1941 to a population of over 23 million in 2016;

•

development of a cohesive national economy. A principal aim of the founders was to secure a common economic market throughout Australia free from restrictions and interference by the Commonwealth or the states. Before 1900 each state had its own separate economy, but some 60 years later the Joint Committee on Constitutional Review of the Federal Parliament was able to report that the Australian economy could only be regarded as a single unit.5 Subsequent events have confirmed the committee’s view;

•

by 2000 not only was the Australian economy fully national, but Australia was a participant in the evolution of an international globalised economy, taking advantage of its benefits and sharing its vicissitudes. Since the Uniform Tax cases, to the chagrin of successive state governments, the High Court has endorsed expansive readings of the Commonwealth’s principal legislative powers, curtailing the ability of states to achieve results by legislation. Under s 109 of the Constitution, Commonwealth laws prevail in cases of inconsistency wherever the Commonwealth has legislative power, and in any event state legislative powers are insufficient to handle many economic and social issues that have assumed an international character since World War II. Many High Court decisions impacting on the states since 1941 have been dealt with in earlier chapters dealing with the ambit [page 328] of major Commonwealth powers. Mentioned in the following summary are cases which have had the most significant effects:

•

Ha v New South Wales:6 business franchise fees imposed by a state on marketing tobacco, liquor and petroleum, which produced substantial revenues, were held to be invalid, as amounting to duties of excise, which only the Commonwealth can impose under s 90 of the Constitution.

•

New South Wales v Commonwealth (Work Choices case):7 the court held that the federal power under s 51(xx) with respect to most corporations enabled the Commonwealth to deal comprehensively with their industrial relations wherever they carried on their activities, without being limited by s 51(xxxv), which only allows the Commonwealth to legislate for the prevention and settlement by conciliation and arbitration of industrial disputes extending beyond the limits of a state.

•

Commonwealth v Tasmania (Tasmanian Dam case):8 the court held that under its external affairs power in s 51(xxix), the Commonwealth could legislate to give effect to international conventions and treaties to which it was a party although they dealt with subjects falling fully within the legislative powers left to the states by the rest of the Constitution. Mainly through the processes of the United Nations and its specialised agencies, the range of matters now treated as of international concern and made subject to multinational agreement has expanded greatly.

•

Victoria v Commonwealth (Payroll Tax case):9 the Payroll Tax Act 1941 (Cth) imposed a 2.5 per cent tax on wages paid by an employer and expressly applied to the states and municipal bodies constituted under state legislation. The High Court held that the Act was a [page 329] valid exercise of the taxation power. However, shortly afterwards, the Commonwealth agreed to refrain from imposing payroll tax altogether, allowing the states to impose payroll tax for themselves, which each of them has done.

•

Commonwealth v Cigamatic Pty Ltd (in liq):10 the Commonwealth sought payment of federal sales tax but the defendants claimed they were bound

by state company law to give priority to the payment of state taxes in the winding up of an insolvent company. The court held in favour of the Commonwealth on the ground that state legislative power could not deprive the Commonwealth of the priority to which it was entitled under its prerogative powers. •

Murphyores Inc Pty Ltd v Commonwealth:11 this was the culmination of a series of cases deciding that it was no objection to the validity of a law within power that it touches or affects a topic on which the Commonwealth has no power to legislate. Murphyores was engaged in sand mining on Fraser Island in Queensland but the Commonwealth minister refused to give it the permit required under federal customs regulations to export its product — on environmental grounds, which is not a subject of Commonwealth power. The decision in favour of the Commonwealth places beyond doubt the basic validity of the many special purpose payments which the Commonwealth makes to the states.

•

Re Residential Tenancies Tribunal (NSW); Ex parte Defence Housing Authority:12 the Defence Housing Authority, a Commonwealth instrumentality, sought to resist the application of the Residential Tenancies Act 1987 (NSW) to it. The court by a majority of 6:1 held that the New South Wales law did apply to the Defence Housing Authority, and stated a narrower limitation on state legislative power than that which might be thought to arise from Cigamatic. Dawson, [page 330]

Toohey and Gaudron JJ explained that only ‘a State law which discriminates against the Commonwealth government and imposes a disability upon it … will constitute an interference with its executive capacities’ and be invalid.13 The resulting expansion of Commonwealth legislative and executive power at the expense of the states has placed the Commonwealth in a dominant position, both legally and politically. State reliance on the Commonwealth for economic

and political viability is destined to continue. The Commonwealth has achieved legislative supremacy over a radically increased range of subjects compared with the early years of federation, extending deeply into the areas of state legislative power. Any concept of equality between the states and the Commonwealth which the framework and provisions of the Constitution suggests or implies has completely evaporated. Perhaps it was always destined to end this way.

Commonwealth-state finances The uniform tax decisions resulted at once in federal revenues from taxation exceeding combined state revenues from taxation and, ever since, state revenues have amounted to less than half of the states’ budgetary requirements. Over the years, the less populous states of Tasmania, Western Australia, South Australia and Queensland — which yielded less revenue per capita than New South Wales and Victoria — sought and secured federal finance to enable their residents to enjoy material standards matching those of New South Wales and Victoria. In 1933, the Commonwealth established the Commonwealth Grants Commission to assess state claims for federal financial assistance. The formula for claimant states was based on fiscal inequalities and their below average fiscal capacities. The amount of federal financial assistance for each state was related to the extent to which the state’s revenue from taxes and [page 331] charges set at overall average levels would fall short of enabling it to provide services of average overall scope and standards. Under the uniform tax arrangements, general revenue grants to states were made according to a formula based on previous state levels of taxation (which according to New South Wales amounted to giving spoils to the spenders). Later, general assistance grants (no longer called financial reimbursement grants) to each state were also determined by a formula but subject to variation through Commonwealth–state negotiations. In 1976 the Fraser Coalition Government

introduced general revenue sharing arrangements under which the total amount of assistance to the states was decided at premiers’ conferences and allocated among the states according to agreed per capita relativities, influenced not infrequently by pressure from the Commonwealth. By 1976 there had been a substantial increase in federal assistance by way of tied grants, reflecting federal policies often aimed at what was considered in federal circles to be the inadequacy of the states to deal with matters falling within their traditional areas of government, such as housing and education. For example, payments to the states earmarked for financing universities, first introduced in 1951–52, and later for colleges of advanced education, were substantially increased between 1968 and 1970. During the term of the Whitlam Government, grants to states for main roads development were significantly increased, and under the long-standing Commonwealth–State Housing Agreement the Commonwealth provided generous long-term loans to the states for the provision of public housing. In the concluding years of the last century, special purpose payments further tied the states to Commonwealth purse strings in areas including the provision of health services, and assistance to revitalise the Murray–Darling River Basin which was suffering from the effects of prolonged drought and the diversion of water under the Snowy Mountains Hydro-Electric Scheme. A dramatic turn of events occurred in 1998. At a special premiers’ conference, convened by Prime Minister Howard, the Commonwealth and the states unanimously agreed to the Commonwealth introducing a goods and services [page 332] tax (GST), with the entire proceeds (less collection costs) to be paid to the states in lieu of the annual financial assistance grants they had been receiving since the 1940s. Agreement was reached amid political and public controversy, particularly since Mr Howard, when in opposition, had declared that his government would never introduce such a tax. The states were required to

abandon in due course a miscellany of relatively minor taxes and to review others. Legislation to give effect to the agreement came into effect on 1 July 2000.14 The formula for determining how each state’s grant is to be calculated annually is specified by the Treasurer after consulting each state. It depends largely on calculation of relativities, referred to in order to adjust the financial inequalities between states. The principal function of the Commonwealth Grants Commission has since been to advise on this allocation amongst the states of the GST revenues. Application of the formula of course means that each state receives a different share and in turn it means that the percentage of a state’s total revenue made up from GST varies from state to state. For example, in 2006/07, GST amounted to 23 per cent of the New South Wales budget but 43 per cent of Tasmania’s budget. Professor Neal Warren has summarised funding of the federation in the following way: In 2006–7, the Commonwealth received 46.4% of its tax revenue from taxes on personal income, 25.8% from company income, 15.7% from the Goods and Services Tax (“GST”) and 9% from excise duties. The States in contrast received 29.4% of their revenue from a tax on payrolls, 26.7% from taxes on property transfers, 12.1% from taxes on motor vehicles, 11% from land taxes and 9.8% from gambling taxes. However, the Commonwealth raised considerably more revenue than it required for its own-purpose outlays, collecting 81.9% of all taxation revenue while being responsible for only 54.5% of total general government outlays. This contrasts with

[page 333] States which collected only 15.3% of taxation revenue and were responsible for 40.5% of all general government outlays. A high level of vertical fiscal imbalance (“VFI”) therefore characterises the Australian Federation.15

Commonwealth-state legislative and executive cooperation Although the publicity around the many annual premiers’ conferences

frequently conveyed the impression of confrontation between the Commonwealth and the states, there is a long history of cooperative federalism extending back to the early years of the federation. Among schemes involving legislative cooperation, the most renowned is the financial agreement between the Commonwealth and the states in 1927 which was authorised by the insertion of s 105A of the Constitution in 1928 — the only example of cooperative federalism leading to amendment of the Constitution. The Financial Agreement Act 1928 (Cth) provided for the Commonwealth to take over existing state debts and to establish a sinking fund for the purpose. It also established an Australian Loan Council of Commonwealth and state ministers and it provided in general that future borrowings of the Commonwealth and the states should be by the Commonwealth with the approval of the Loan Council. Borrowings by the Commonwealth for defence or temporary purposes were exempt. Allocation of the loan program required unanimous decision of the Commonwealth and states, but in the absence of such a decision would be determined according to a formula specified in the Agreement. The Financial Agreement Validation Act 1929 (Cth) validated the agreement following the constitutional alteration.16 [page 334] One purpose of the Financial Agreement was to enable borrowing on overseas markets at more favourable rates of interest. Competition between states and the Commonwealth had caused rates to increase. Another purpose of the Agreement was to compensate the states after the Commonwealth refused to continue per capita payments to them under the Surplus Revenue Act 1910 (Cth). The Financial Agreement remained in operation until replaced by the 1994 Financial Agreement in 1995. In 1948 the Commonwealth reached agreement with New South Wales and Victoria to establish the Snowy Mountains Hydro-Electric Authority to construct works in the Snowy Mountains area for the generation and supply of electricity and for the storage and diversion of the waters of the Snowy River for

irrigation. The Commonwealth put that agreement into effect in the Snowy Mountains Hydro-Electric Power Act 1949 (Cth). Under s 51(xxxiv) of the Constitution, the Commonwealth Parliament may legislate with respect to railway construction and extension in any state with the consent of that state. With state agreement, the Commonwealth carried out major railway works in Queensland, New South Wales, Victoria and South Australia, principally in order to link the states with a standard gauge rail system. Most states have different rail gauges to their neighbours. Break of gauge problems added greatly to rail transportation costs between states, including between New South Wales and Victoria. In South Australia v Commonwealth17 in 1962 South Australia sought to enforce its Railways Standardisation Agreement with the Commonwealth. The Agreement provided for gauge conversion of the South-Eastern and Peterborough divisions of its railway network following the completion of work to standardise the trans-continental line linking Perth with the eastern states via South Australia. The state claimed that the Commonwealth was refusing to take the steps needed to enable it to proceed with the work in spite of its repeated requests. In the High Court, the four majority judges held that although the Standardisation Agreement probably gave rise to some [page 335] judicially enforceable legal obligations, no specific breach of the Agreement had occurred, since the Agreement did not contain any provision as to the time for the commencement of any particular work. The three other judges held that the Agreement gave rise only to political obligations. In the 1990s, the Adelaide– Melbourne line was converted to standard gauge, leaving South Australia with small, isolated broad gauge systems, in the South East and between Adelaide and Peterborough. By 2016 they have still not been converted. In 1967, the Commonwealth and the states entered into an agreement for the exploration for and the exploitation of petroleum resources of the territorial sea and the continental shelf. The agreement followed discoveries of oil in these

areas. A common mining code written for the purpose was mainly administered by state ministers and there was provision for the sharing of royalties between the Commonwealth and the states in connection with petroleum mined in offshore areas. The Commonwealth and the state Parliaments legislated to give effect to the scheme. At this time the territorial sea was understood as being within the jurisdiction of the states and the continental shelf to be subject to the legislative powers of the Commonwealth and not the states. In 1973 the Federal Parliament passed the Seas and Submerged Lands Act 1973 (Cth) which provided that sovereignty in respect of the territorial sea and adjacent air space and its bed and subsoil was vested in the Commonwealth. The Act also provided that the sovereign rights of Australia for the purpose of exploring it and exploiting its natural resources were vested in the Commonwealth. In 1975 in New South Wales v Commonwealth18 all states challenged the validity of the Commonwealth Act. The High Court held unanimously that the provisions relating to the continental shelf fell within the scope of the Commonwealth external affairs power. A majority held that provisions of the Act other than those dealing with the continental shelf were also within power because they were to give effect to an international [page 336] convention. A majority further held that the territories of the former Australian colonies ended at the low water mark and the colonies had no sovereign or proprietary rights in respect of the territorial sea or continental shelf. After the Commonwealth victory, the Commonwealth and the states continued with a somewhat modified joint arrangement. Other cooperative arrangements have included schemes for marketing various primary products, the Flour Tax Scheme in 1938 discussed in Chapter 17, the establishment of a joint coal board by agreement between New South Wales and the Commonwealth to ensure sufficient coal was produced in New South Wales to meet all demands, a sugar agreement with New South Wales and Queensland to protect the local industry under which the Commonwealth

prohibited the importation of sugar, and the establishment of the River Murray Commission (whose successor organisations are discussed below) by agreement between the Commonwealth and New South Wales, Victoria and South Australia for the economical use of the River Murray and its tributaries. On some occasions when action on a national front has been called for to obtain advantage from uniformity, the states have shown themselves reluctant to act, particularly in areas in which they have been traditionally the sole governmental power. It was plain before 1950 that Australia had a national economy and not separate economies of six states, and that in the interests of promoting its growth there would be a considerable advantage in uniform company laws so private industry would not have to mould its operations to accommodate differences between state Companies Acts. In 1961, after several years of negotiations, the Commonwealth reached agreement with the states for the passing of uniform Acts. Unfortunately, uniformity did not extend to the process of administering the Acts and their implementation, for example, State Corporate Affairs Commissions still existed. In 1991, agreement was reached on a cooperative scheme of corporations law and the creation of an Australian Securities Commission. Finally, the Commonwealth reached agreement with each of the states to [page 337] refer power to it to deal with corporations by reference of power under s 51(xxxvii) of the Constitution. Pursuant to the reference it passed the Corporations Act 2001 (Cth) to achieve complete uniformity in corporations law and its administration.

Premiers’ conferences Before Federation there were various conferences of the colonial premiers and they continued with the Commonwealth as a participant in the early years of federation. By 1910 the conferences had become well established as a governmental institution dealing with Commonwealth–state relations and

within a few years they were held annually. This continued until the 1990s. Especially after the Uniform Tax Scheme came into operation in 1948–49, the focus of premiers’ conferences turned on intergovernmental financial relations and the level and distribution among the states and territories of general revenue assistance. It was not unusual for the states to complain that they had little option but to succumb to Commonwealth pressure. In 1992, the role of the premiers’ conference was largely subsumed by the Council of Australian Governments (COAG). Following intergovernmental agreement in 1999, the states now receive the bulk of the revenue from the federally imposed goods and services tax. The formation of COAG in 1992 resulted from agreements reached at two special premiers’ conferences, but the existence of COAG has also rendered such conferences largely unnecessary.

Prime ministerial initiatives During the long reign of the Liberal-Country Party Coalition of Sir Robert Menzies and his successors — which came to an end when the government then led by William McMahon lost office in 1972 — there was little interest at the federal level in any review of the Commonwealth’s relationships with the states. The Menzies philosophy of leaving things pretty much as they were held sway. [page 338] The Whitlam era The election in December 1972 of Gough Whitlam as Australia’s 21st Prime Minister brought about a radical change in Commonwealth–state relations. Whitlam’s Labor Government introduced a wide-ranging reform program which included policy objectives in areas that were the traditional preserve of the states such as housing, university education, and urban and regional development. The government introduced a series of special purpose payments to the states on condition that they satisfied Commonwealth policy requirements. Whitlam’s version of federalism amounted, according to most state governments, to an unreasonable centralist restriction on their autonomy.

The Fraser era In November 1975, following Governor-General Kerr’s dismissal of the Whitlam Government, the Fraser Government gained office and the occasion marked the return to conservative financial policies and austere management in public administration. When in opposition, Malcolm Fraser had pressed for the need to protect state rights against federal interventions made possible through the power of the purse. As Prime Minister, he proceeded to put his ideas into effect under a proclaimed policy of new federalism. The Fraser Government’s initial overture was to offer the states a direct share of personal income tax, giving them access to a significant growth tax. The premiers agreed to that at a conference in 1981, but the financial assistance grants actually received by the states barely kept pace with inflation. Fraser then proposed a second stage, offering states the power to impose an income tax surcharge on top of the Commonwealth’s income tax. The Federal Parliament passed the Income Tax (Arrangements with the States) Act 1978 (Cth) to give effect to the proposal. However, no state was prepared to undertake the political risks associated with the imposition of an additional tax on its residents, and the federal Act was repealed in 1989. [page 339] Hawke’s new federalism In 1982, Bob Hawke supplanted Bill Hayden as the Leader of the Opposition. Prime Minister Malcolm Fraser called an election for early 1983, which his Coalition Government lost. Hawke’s election as Prime Minister introduced a new era of Commonwealth–state relationships. As early as April 1983, Hawke convened an economic summit meeting in Canberra attended by representatives of political parties, union leadership and business organisations with a goal of reaching a national consensus on economic policy. A wages accord resulted. In the years that followed, a globalised economy developed apace and both Hawke and his long-standing Treasurer Paul Keating were determined that Australia should not find itself at a competitive disadvantage in world trade, and that the

states should share responsibility with the Commonwealth to achieve an efficient Australian economy. In 1987, the globalised economy succumbed to market crises and Australia’s economy faltered. Despite this, the government improved its position at the general election in 1987 and it continued the deregulation program which abolished Australia’s two-airline policy and extended general tariff reductions. High interest rates characterised these years. In March 1990, the Hawke Government was returned to office but with a diminished majority. This did not deter Hawke from convening two special premiers’ conferences with the states in 1990 and 1991, with the aim of establishing a new era of Commonwealth–state relationships through the creation of new machinery. At the end of the first special premier’s conference a communiqué was issued which read: Leaders and representatives acknowledged that past inefficiencies can no longer be tolerated and that changes are needed to make the Australian economy more competitive and flexible. An integral part of any micro economic reform strategy is a more effective public sector. Leaders and representatives therefore declared their intention to use this unique opportunity to maximise cooperation, ensure a mutual understanding

[page 340] of roles with the view to avoidance of duplication and achieve significant progress towards increasing Australia’s competitiveness.

There was no formal agreement at either conference and a third conference was foreshadowed. However, in the meantime, economic problems worsened and Australia went into recession. In December 1991, Paul Keating who, as Treasurer, had borne most of the discontent arising from the state of the economy, displaced Hawke as Prime Minister. The third premiers’ conference did not take place, although a premiers’ meeting went ahead without a Commonwealth presence.

The formation of COAG Almost at once, Keating convened a heads of government meeting which was in essence a special premiers’ conference with the objective of promoting a more

efficient, internationally competitive Australian economy. The meeting agreed to the formation of the Council of Australian Governments (COAG) comprising the Prime Minister, all state premiers, the chief ministers of the Australian Capital Territory and the Northern Territory and the president of the Australian Local Government Association. COAG meetings are chaired by the Prime Minister and his or her department provides the secretariat. The 1992 conference agreed that COAG would meet at least once a year. Its charter was then to: •

increase cooperation among member governments;

•

seek reforms in order to achieve an integrated, efficient national economy and single national market;

•

continue the structural reform of government and review the relationships between governments consistent with the national interest; and

•

consult on major issues by agreement including whole-of-government issues and major initiatives of any one government which impacted on the others. [page 341]

The original charter remains substantially in place. Later, COAG gained a further role, to oversee the work of a new institution, the National Terrorism Committee, which reports to COAG on counter-terrorism capabilities. COAG is now the unchallenged pivotal institution for the maintenance and development of Commonwealth–state relationships on all subjects. It is supposed to meet on a needs basis and the frequency of meetings can be determined by the enthusiasm or lack of enthusiasm of members, especially the Commonwealth. Since 2007, it has tended to meet two or three times each year. In practice COAG meetings, intergovernmental agreements and other forms of Commonwealth–state cooperation are generally the results of intensive work of various institutional bodies which have been created since COAG’s

formation, such as the Commonwealth–state ministerial councils for particular areas of government. There is also a COAG senior officials group consisting of heads of all principal central agencies which usually meets as required. At its meetings, lively discussions can occur about the agenda and arrangements for the next meeting of COAG.

National Competition Policy In 1995, in return for extensive periodic payments by the Commonwealth, all state and territory governments agreed to the Commonwealth’s proposal for micro-economic reform and signed three inter-governmental agreements to establish a National Competition Policy, the principal objective being to work towards achieving the competitive neutrality of their business activities. The rationale for the policy was that publicly owned entities should not enjoy competitive advantages simply as a result of public sector ownership. Reforms recognising a national approach in the electricity, gas, water and road transport industries were also specified in the agreement. The national approach to competition policy reform in essence implemented the recommendations of an independent committee of inquiry known by the name of its chairman, the Hilmer Committee, which the government [page 342] established in 1992. Factors influencing the agreement were decisions by the Commonwealth in the Hawke–Keating era to float the currency, deregulate financial markets and reduce trade barriers in order to establish a more flexible national economy. The next 10 years saw substantial progress towards major goals of the policy in spite of occasional vicissitudes, such as allegations by one party that another was not pulling its weight. In 1995 COAG also created a National Competition Council (NCC) consisting of four part-time councillors appointed for three-year terms, each well

qualified and experienced in business and corporate governance. The NCC is an advisory body established to oversee and assist the implementation of the National Competition Policy and related reforms. It assists public awareness so the community becomes better attuned to the scope and potential favourable outcomes of competition reform agendas. It also assesses whether governments have made satisfactory progress towards their commitments to competition reform. As a party to the National Competition Policy agreements, the Commonwealth promised payments to the states and territories in three stages, broadly based on their individual performances as assessed in the first instance by the NCC. The National Competition Policy has been COAG’s most notable achievement.

National Reform Agenda and the Reform Council In 2006 COAG agreed to a National Reform Agenda which included the creation of an independent COAG Reform Council and linked new Commonwealth funding to reform. The Reform Agenda, motivated by the financial relationships between the Commonwealth and the states, has the somewhat ambitious goals of boosting productivity, workforce participation and geographic mobility, supporting wider objectives of better services for the community, closing the gap on Indigenous disadvantage, and pursuing environmental sustainability. The Reform Council consists of six persons appointed from outside the government and it operates independently of the members of COAG. It is required to monitor and report directly to COAG on progress in [page 343] implementing the Reform Agenda. The Reform Agenda itself was the result of various national agreements and national partnerships between the members of COAG. Some idea of the scope of the National Reform Agenda can be gained from

the decision of COAG in 2007 to refer seven specific areas of reform to the Reform Council: •

transport pricing;

•

national rail safety;

•

infrastructure regulation;

•

electricity smart meters;

•

the new National Energy Market Operator and a new transmission planning function;

•

the establishment of a national system of trade measurement administered by the Commonwealth; and

• improvements to the Building Code of Australia. The extent to which the Reform Council will be equal to its task is still being demonstrated.

Treaties Council As described in Chapter 20, there has been a vast increase in recent years in subjects of international concern which previously were left entirely to the determination of separate sovereign states. The Commonwealth has become party to international treaties on subjects that were once the exclusive preserve of the states. This has given rise to protests about the lack of consultation with states in relation to entering and implementing international agreements that have a direct impact on their areas of activity. In 1996 COAG established the Treaties Council, comprising the Prime Minister, the premiers, and territory chief ministers, as an advisory body to consider treaties and other international agreements of sensitivity and importance to the states and territories. The Standing Committee on Treaties, consisting of senior Commonwealth, state and territorial officials, [page 344]

identifies international agreements of sensitivity and importance for the Council, and state authorities and ministerial councils may also refer matters to the Council. To date, the Treaties Council has only met once, on 7 November 1997. It is unclear whether it will meet again.

Australian Loan Council As described earlier in this chapter, the Australian Loan Council was established under the Financial Agreement of 1927, originally to regulate and approve government borrowings. That role was superseded by the Financial Agreement between the Commonwealth, states and territories which came into effect in 1995, removing the previous borrowing restrictions. The Council now operates mainly under voluntarily agreed arrangements. The estimated call of public borrowings on financial markets for forthcoming fiscal years is now subject to financial market scrutiny and possible restriction in the light of macroeconomic conditions as well as the fiscal circumstances of the borrowers. The Loan Council consists nominally of the Prime Minister, state premiers and chief ministers but in practice each jurisdiction is usually represented by its treasurer. Its meetings are preceded by meetings of the heads of treasuries of the Commonwealth, states and territories.

Commonwealth-state ministerial councils Ministerial councils have convened from time to time since the early days of federation to exchange information and seek resolution of disagreements between the Commonwealth and the states. Ministerial councils have been placed on a more formal footing since COAG came into being. An intergovernmental agreement set out each ministerial council’s decision-making functions and they were given legal standing through legislation passed by all Australian Parliaments to make ministerial council decisions binding on all governments. [page 345]

Meetings are formal and consist of ministers of the crown from not less than four jurisdictions, and they are supposed to occur on a regular basis. Under the agreement, ministers who are members have the authority of their governments to determine matters to finality in their field of concern. It is the responsibility of member ministers to ensure they are in a position to represent their governments appropriately at council meetings. Ministerial councils exercising formal decision-making responsibilities must report annually to COAG. They are required to prepare impact statements for all regulatory proposals that will affect business or have an impact on competition. Agendas are required to focus on matters of strategic national significance and items are only included on agendas on referral by COAG or by legislative requirements. Each council has the support of a standing committee of officials. By 2000 the number of ministerial councils had proliferated to the point that COAG agreed in 2001 that there should be a presumption against the creation of new councils. In 2013, the previous 24 ministerial councils were replaced with just eight. The effectiveness of individual ministerial councils may be known to the principal officials involved, but in the absence of publically available reports on their effectiveness from COAG, their value cannot be conclusively assessed. It seems that some have so far achieved little, while others have made important contributions to Commonwealth–state relations and been useful sounding boards for possible future agreements and intergovernmental arrangements. Intergovernmental Agreement on Federal Financial Relations 2009 The members of COAG entered into a new intergovernmental agreement, effective from January 2009, on federal financial relations, dealing comprehensively with the Commonwealth’s financial relations with the states and territories. It vested the newly titled Ministerial Council for Federal Financial Relations with general oversight of the agreement. That body [page 346]

is now clearly the most significant of all the ministerial councils. The Commonwealth Treasurer chairs the council which consists of all treasurers or their designated representatives. Issues are determined by unanimous agreement apart from exceptions specified in the intergovernmental agreement. The new agreement was heralded in government circles as the most significant reform of Australia’s federal financial relations in decades. It reiterated the determination of the parties to take coordinated action to address many of the economic and social challenges confronting the Australian economy. Under cl 8, the parties agreed that that their intention was to improve the quality, efficiency and effectiveness of all government services with the focus on achievement of outcomes. It was further agreed that the accountability of governments to the community for their actions in giving effect to the agreement should be enhanced by the provision of publicly available performance information. The members of COAG entered six National Agreements, five of which dealt with subjects in which state constitutional powers predominated. Significantly, the financial relations agreement recognised the primacy of the states in the delivery of services as being implicit in the Constitution. The agreements were: •

the National Healthcare Agreement;

•

the National Education Agreement;

•

the National Agreement for Skills and Workforce Development;

•

the National Disability Agreement;

•

the National Affordable Housing Agreement; and

•

the National Indigenous Reform Agreement (which mainly concerns responsibilities belonging to the Commonwealth under ss 51(xxvi) and 122 of the Constitution). The key to the financial relations agreement was the Commonwealth’s commitment to finance the states’ service delivery efforts with GST [page 347]

revenue. The other main channel of Commonwealth funding to the states is specific purpose payments (SPPs) tied to conditions imposed by the Commonwealth which bind the states to abide by its policies in the exercise of their constitutional powers. In 2006, SPPs constituted more than 40 per cent of total Commonwealth payments to states, and the agreement recognised that SPPs will continue. It was of comfort to the states that the Commonwealth agreed to reduce the number of purposes underpinning the SPPs, from over 90 to the five specified in the agreement. The Commonwealth agreed to place the states on a secure footing by providing a guarantee of funding over five years: •

$60.5 billion in a National Healthcare SPP;

•

$18 billion in a National Schools SPP;

•

$6.7 billion in a National Skills and Workforce Development SPP;

•

$5.3 billion in a National Disability Services SPP; and

• $6.22 billion in a National Affordable Housing SPP. By 2016, the first two in that list had been replaced with alternative funding arrangements, but in general the role of the Council seems to have been established. Australian Transport Council Section 101 of the Constitution states that ‘[t]here shall be an Inter-State Commission, with such powers of adjudication and administration as the Parliament deems necessary for the execution and maintenance, within the Commonwealth, of the provisions of this Constitution relating to trade and commerce, and of all laws made thereunder’. Though s 101 is in mandatory language, Parliament cannot be compelled to constitute the Commission. Parliament created the Commission in 1913 but following a High Court decision in 1915 that the Commission had no power to enforce its decisions, the Commission had lapsed for want of appointments in 1920. In 1973, the Whitlam Labor Government recognised that almost nothing had

[page 348] been done to coordinate various modes of interstate transport, despite the transport cost burden of Australia’s long distances. His government and the Fraser Coalition Government that followed legislated for the re-established Inter-State Commission with the aim of improving the interstate transport situation. Again, the Commission proved ineffective and in 1989 it ceased operation. The Australian Transport Council was formed in 1993, replacing the Australian Transport Advisory Council, to advise governments on the coordination and integration of all transport and road policy matters at a national level. The Council’s stated vision is to maximise the contribution of effective transport to Australia’s productivity, quality of life and equity, which it aspires to achieve with a ‘seamless’ transport system that is efficient, safe, sustainable, accessible and competitive. The Council consists of Commonwealth, state, territory and New Zealand ministers responsible for transport, roads and maritime and port issues. In 2013, it became the Australian Transport and Infrastructure Council. The Council has a long way to go to achieve its vision. Ministerial Council of Attorneys-General Until 2011, the Ministerial Council of Attorneys-General was constituted by the Standing Committee of Attorneys-General (SCAG) of the Commonwealth, states and territories. New Zealand was also a member. In 2011, it became known as the Standing Council on Law and Justice (SCLJ). In 2013, it became the Law, Crime and Community Safety Council (LCCSC), and expanded to include ministers for police and emergency management. SCAG usually met three times a year; the SCLJ and LCCSC usually meet twice a year. For several years SCAG directed its energies towards establishing the legal profession on a national footing. In 2009 COAG made national legal profession regulation a priority issue on SCAG’s reform agenda. One of the matters for consideration was an option for a national regulator for the legal profession. The

Commonwealth Attorney-General appointed a [page 349] National Legal Profession Reform Taskforce to draft uniform legislation. The taskforce submitted draft legislation to COAG in December 2010. In September 2011 a draft Legal Profession National Law was released. It was anticipated that this would be adopted by the legislatures of each jurisdiction, thus implementing a proposed National Regulatory Framework. So far it has not happened, although the ‘national’ scheme as of 2016 operates in only New South Wales and Victoria. SCAG’s deliberations also encompassed the more ambitious task of seeking as much uniformity and reciprocity as possible under the Constitution in the composition, jurisdiction and relationships of federal and state courts. The issues are sensitive and complex. For example, the framers of the Constitution sought economy by allowing the Commonwealth to vest state courts with federal jurisdiction, but they did not contemplate the reverse situation. In Re Wakim; Ex parte McNally19 the High Court held invalid a cross-vesting scheme which provided for state jurisdiction to be conferred on federal courts, on the grounds that this was contrary to Ch III of the Constitution.20 Irrespective of such schemes to promote efficiency, access to justice in the superior courts remains, as it has for many years, beyond the resources of average litigants and small businesses either as plaintiffs or defendants. Federal interest in access to justice via Australia’s civil litigation system found expression in the Access to Justice (Civil Litigation Reforms) Amendment Act 2009 (Cth). SCAG also entered into a national partnership agreement dealing with legal aid funding — an area of the law which for many years has not been able to meet the demands placed on it. SCAG’s legacy, carried on now by LCCSC, includes uniform and model laws (some of which have attained high implementation, others of which

[page 350] have been adopted in only a limited number of jurisdictions) relating to evidence, defamation, commercial arbitration and enforcement of foreign judgments. Murray–Darling Basin Ministerial Council The framers of the Constitution were aware that Australia was a dry continent that was subject to recurrent droughts. At the time, the Murray and Darling rivers were significant integers of commercial transport and water supply. After exhaustive debates, the founders failed to reach agreement on the allocation of the resources of the two rivers. Instead they agreed to s 100 of the Constitution, prohibiting the Commonwealth from abridging by any law or regulation of trade or commerce the right of any state or its residents to the reasonable use of river waters for conservation or irrigation. Until 1988, the river waters of the Murray–Darling Basin were separately controlled by the governments of the riparian states in the interests of their own residents. The river water resources were exploited without regard to national interests. The widespread degradation of the Basin area reached such levels that in 1988 the Commonwealth and the four Murray–Darling Basin states — New South Wales, Victoria, South Australia and Queensland — established the Murray–Darling Basin Commission to seek efficient management and equitable distribution of the river water resources. In 2007 the same parties, plus the ACT, agreed to establishment of the Murray–Darling Basin Authority as a successor to the Commission, and the Murray–Darling Basin Ministerial Council which comprises the Commonwealth Water Minister as Chair and one minister from each of the four states and the ACT. The Council has a role in the approval and implementation of management plans prepared by the Authority. In developing its plan, the Authority is required to seek comments from the Council, which may indicate approval or disapproval of aspects of the plan. If the Authority is reluctant to accept the Council’s view the Council may direct the Authority to modify the plan. The Authority’s work is examined in more detail below.

[page 351]

National agreements and national partnership agreements The institutional framework of Commonwealth–state relationships has undergone further expansion through a plethora of agreements between the Australian governments. Most but not all involve financial commitments by the parties, mainly by the Commonwealth because of its financial dominance. As in the instance of the ministerial councils, contributing factors have been the emergence of strong centripetal factors after World War II, and more recently the various forms of globalisation. Over several years before the 2009 Intergovernmental Agreement on Federal Financial Relations, COAG set up a number of national partnerships which involved national partnership payments to fund specific projects and to facilitate reforms or to reward states that delivered on nationally significant reforms. Among them were several relating to education and schools, for example, to improve literacy and numeracy and teacher quality. Others covered such subjects as social housing and homelessness.

A seamless national economy The 2009 Intergovernmental Agreement on Federal Financial Relations was accompanied by the National Partnership Agreement to Deliver a Seamless National Economy, which was to be read in conjunction with the federal financial agreement and also to be implemented consistently with the objectives and outcomes of all the national agreements and national partnerships. The government parties committed themselves to reduce costs incurred by business in complying with unnecessary and inconsistent regulation across jurisdictions and to expand Australia’s productive capacity by competition reform, encouraging stronger economic growth, workforce participation and labour mobility. The agreement had an implementation plan which included deregulation priorities previously agreed to by COAG in 2008. Amongst the priorities were review of Australia’s anti-dumping and countervailing (anti-

subsidy) system, review of parallel importation [page 352] of books, rationalisation of occupational licences, and further national transport policy reform. The agreement also specified the respective roles of the Commonwealth, states and territories in achieving a coordinated approach on commercial matters ranging from wine labelling and the regulation of trustee companies, to directors’ liability and payroll tax. The Commonwealth agreed to provide escalating reward payments to the states and territories upon their achievement of milestones.

Murray–Darling Basin Authority The partnership agreement described above which came into operation in 2008 provided for a single agency — the Murray–Darling Basin Authority — to be responsible for planning the integrated management of water resources throughout the Murray–Darling Basin. After several years of drought, the river system was in an appalling state and quite unable to sustain riparian agricultural industries which relied on irrigation. The huge Basin occupies a large part of southern Queensland, most of New South Wales, half of Victoria and a small but economically important area in South Australia. It includes 23 rivers which are tributaries of the Murray or Darling Rivers including the Murrumbidgee and Lachlan in New South Wales, the Warrego and Condamine–Balonne in Queensland, and the Avoca and Goulburn in Victoria. It is Australia’s most important agricultural area, producing more than $9 billion worth of agricultural produce per annum. Three million people living within and outside the Basin are directly dependent on its water. The region produces about one-third of the country’s food supply and includes large areas for the production of non-food farm products, including cotton which is a prodigious user of Basin waters. At the end of 2008, each of the four states in the agreement legislated to

enable the Commonwealth’s Water Act 2007 to authorise the Authority to ensure that the Commonwealth and the Basin states manage water resources to optimise economic, social and environmental outcomes. This was to be done by developing a Basin plan that would set sustainable limits on water [page 353] which could be taken from surface and ground water systems according to a blueprint set out in the Commonwealth Act. The Authority’s functions are much wider than those of the Murray–Darling Basin Commission constituted under the earlier Commonwealth–state agreement. The 2007 agreement places the Commonwealth in a dominant position to determine national water policies, subordinating the interests of particular states in a country which has insufficient river waters to meet all demands. In April 2008, shortly before the creation of the Authority, the Rudd Government announced an ambitious plan called ‘Water for the Future’, having the purpose of developing a single national framework to deal with rural and urban water issues. Under this plan, the Basin states had to play their part in addressing the problems of the Basin. The Commonwealth introduced a water buy-back policy in the Murray–Darling Basin which recognised that water was currently over-allocated and that the problem was likely to become worse as water availability declined due to climate change. It committed $3.1 billion over 10 years to purchase the water and also $5.8 billion for infrastructure improvements. New South Wales first said it would not allow its farmers to sell their water entitlements to the Commonwealth but later reversed its position in a memorandum of understanding with the Commonwealth. The Commonwealth proceeded with purchasing water entitlements in the four Basin states. A transaction which attracted considerable publicity was the purchase for $25 million of the water rights of a cotton-producing property in northern New South Wales.

When the Commonwealth acquires water rights, they remain subject to the same rules including restrictions as applied to the vendor of the rights. The rights it acquires are to be managed in accordance with the plan, to protect and restore environmental assets and ecosystems, by the Commonwealth Environmental Water Holder. The Water Holder is a public servant engaged under the Public Service Act 1999 (Cth), assisted by staff of the Department of the Environment. [page 354] In March 2010 the Productivity Commission, which is the Australian Government’s independent research and advisory body on economic, social and environmental issues, issued a research report acknowledging the legitimacy of the buy-back policy. It pointed out, however, that despite the best intentions of Basin jurisdictions in developing a coherent approach to water policy, implementation of the National Water Initiative remained somewhat fragmented. State governments still had to rein in over-allocation and overextraction of water resources in the Basin and all parties to the agreement needed to articulate better how they intended to address their obligations. The plan and the management have sparked controversy because of the competing interests of the four states and of major water users. When the National Farmers Federation heard about the Commonwealth’s purchase of 240 billion litres of the Twynam Agriculture Group to be diverted from cottonproducing agriculture to environmental flows in the Murray–Darling Basin it made the comment that acquisitions, made without community consultation, would have flow-on effects on food and fibre production and consequences for regional towns and businesses. In the Murray–Darling Basin, as elsewhere, environmental protection may come at the expense of other social and economic priorities. There is a difficult balance to be struck between protecting the health of the Basin, and accommodating sometimes short-term economic interests and preserving the social fabric of affected regions. In this area, Commonwealth– state cooperation is essential, but difficult.

Water Act 2007 The Water Act 2007 (Cth) which implemented the Murray–Darling Basin Agreement consists of 261 pages and the Agreement set out in a schedule is 237 pages. At the outset it addressed the constitutional position. The Commonwealth relied mainly on the following powers: corporations in s 51(xx), trade and commerce in s 51(i), external affairs in s 51(xxix) and territories in s 122. [page 355] There were doubts as to whether Commonwealth powers alone would be sufficient to implement the Agreement. There was also a question as to whether provisions of the Act could be invalidated because of s 99 of the Constitution, which prohibits the Commonwealth by any law of trade, commerce or revenue from giving preference to one state over another, and s 100 which prohibits the Commonwealth in a law about trade and commerce from abridging the right of a state or its residents to the reasonable use of river waters for conservation or irrigation. To remove any doubts, the states agreed to refer matters to the Commonwealth under s 51(xxxvii) to the extent they were not otherwise covered by the legislative powers of the Commonwealth Parliament and to the extent they were included in the legislative powers of the states. As well as establishing the Murray–Darling Basin Authority as a body corporate with a chief executive, a chair and four other members appointed by the Governor-General, the Act set up a Basin Officials Committee appointed by the minister to advise the Authority, and a Basin Community Committee, an advisory body consisting of the chair and up to 16 members appointed by the Authority. Membership has to include at least eight representatives of water users. The Authority must give effect to specified entitlements of New South Wales, Victoria and South Australia to River Murray water. In the case of South Australia, quantities are expressed in monthly intervals taking into account that it is an end-user at the mouth of the flow. New South Wales and Victoria are

under an obligation to provide South Australia’s entitlement in equal proportions. The Act is an expression of Commonwealth domination in yet another field of government.

Rail transport Before Federation, railway systems owned by the colonial governments had become the primary means of transport for trade and commerce within and between colonies. They are mentioned in three paragraphs of s 51 of the [page 356] Constitution.21 In some instances, especially in Victoria and New South Wales, rail systems were created and operated in a way which gave preference to intrastate carriage. Section 102 gave the Federal Parliament power to prohibit undue preferences as to railways by a state and provided that whether an undue preference existed was to be adjudged by the Inter-State Commission. In 1975 the Whitlam Government, committed to a policy of seeking coordination in transport to reduce the heavy transport costs imposed by the size of the Australian continent and the distribution of the population, established the Australian National Railways Commission as a government-owned corporation. In 1975 South Australia and Tasmania reached an agreement with the Commonwealth Government under which the Commission took over most of the South Australian rail network and the whole of the Tasmanian Government Railways. Later, agreements with other states led to an increase in the scope of Australian National’s activity. The National Rail Corporation, established in 1991, saw further change. Privatisation policies of state and federal governments have now put many rail operations in the hands of the private sector, but in part have kept the infrastructure in government hands through the Australian Rail Track Corporation (ARTC). In 2015, the Liberal Government announced a scoping study into the privatisation of ARTC.

Commonwealth–state national oil and gas policy In December 1953 the American company Standard Oil of California announced the discovery of crude oil deposits in the Rough Range area of Western Australia. Shortly afterwards, oil companies participated in joint ventures for the purpose of exploring and exploiting the oil and gas resources of the state. On the whole the results did not live up to expectations. In the midsixties, however, important deposits were found in the Carnarvon area, including offshore deposits. Significant discoveries in the Ord Basin area in [page 357] the state’s far north followed. Meanwhile, other enterprises were formed to explore for oil and gas off the coasts of other states, including Victoria where major discoveries were made in Bass Strait, and the Coral Sea area off the coast of Queensland. Commonwealth-state agreement 1967 In 1967 the Commonwealth entered into an arrangement with all states for a legislative scheme dealing mainly with the problems of getting oil and gas out of the ground in sufficient quantities to make a substantial contribution to the national economy. The scheme rested on the Petroleum (Submerged Lands) Act 1967 (Cth) and similar Acts passed by each state. The scheme provided for the exploration and exploitation of the petroleum resources of submerged lands off the entire Australian coastline by a system of permits and licences called a common mining code, administered almost entirely by state-designated authorities. It also provided for sharing of royalties between the parties. The Act assumed that both the Commonwealth and the states possessed constitutional rights in the exploration for and exploitation of offshore resources. As more discoveries revealed the extent of Australia’s continental and offshore oil and gas resources, the 1967 arrangement began to amount to a fetter on the evolution of a comprehensive national oil and gas policy.

Seas and Submerged Lands Act 1973 The Whitlam Government viewed the 1967 arrangements with disfavour as insufficiently recognising Commonwealth interests and constitutional powers. As a result, Parliament passed the Seas and Submerged Lands Act 1973 (Cth), which declared and enacted that the sovereignty in respect of the territorial sea, seabed and subsoil vested in the Commonwealth. At the time the states believed that the territorial seas adjacent to their coastlines belonged to them and not the Commonwealth. The Act also declared and enacted that the sovereign rights of Australia as a coastal state in international law in respect of the continental shelf were vested in and exercisable by the [page 358] Commonwealth for the purpose of exploring it and exploiting its natural resources. The states at once challenged the validity of the Commonwealth Act, and a major defeat ensued. In the Seas and Submerged Lands case,22 the High Court by a majority of five to two held that the Act was valid as a law with respect to external affairs under s 51(xxix) of the Constitution. The court held that the territorial sea was always an imperial territorial sea and was not vested in the colonies either at their establishment or on their attainment of self-government. Rights deriving from international law were enjoyed by the British Crown and not the Crown in right of the colonies. The Commonwealth was the successor to those rights under s 51(xxxix). Following its victory, the Commonwealth Government did not exact its pound of flesh. A joint scheme continued to operate but with greater recognition of the Commonwealth’s rights in the territorial sea. In 1978, the Commonwealth and the states reached an ‘offshore constitutional settlement’ about their respective powers which was given legislative effect in 1980.23 Offshore Petroleum and Greenhouse Gas Storage Act

In 2006, after reaching agreement with the states, the Commonwealth passed the Offshore Petroleum Act 2006 (Cth), which provided a comprehensive code for offshore petroleum exploration and exploitation, and for payment of royalties under the Offshore Petroleum (Royalty) Act 2006 (Cth). In 2008, the Offshore Petroleum Act was amended, again with the agreement of the states, to provide for the injection and storage of greenhouse gas substances such as carbon dioxide in offshore strata in anticipation of [page 359] the requirements of a likely national conservation policy directed to the reduction of greenhouse gases. At the same time, the 2006 Act was renamed the Offshore Petroleum and Greenhouse Gas Storage Act 2006 (Cth). Like earlier legislation, the Act provides for a system of petroleum exploration permits, and petroleum production licences. Neither the Commonwealth nor the states engage in commercial exploration or development but together they own all petroleum rights. Day-to-day administration of the Act is carried on by the states and for that purpose each has a Designated Authority constituted by the responsible state minister. There is a Joint Authority which represents the Commonwealth and state governments acting together, and the members of the Joint Authority are the responsible state ministers and the responsible Commonwealth minister. The Joint Authority is the ultimate decision maker on all matters relating to the licensing scheme and the Designated Authorities are obliged to carry them out. All governments hold regular formal consultations through an Upstream Petroleum Consultative Committee to ensure coordinated action.

Snowy Mountains Scheme Following an agreement with New South Wales and Victoria, the Commonwealth Parliament passed the Snowy Mountains Hydro-electric Power Act 1949 (Cth), creating the Snowy Mountains Hydro-electric Authority to construct works diverting the waters of the Snowy River in the Alpine regions of

the Great Dividing Range to the Murray and Murrumbidgee Rivers instead of flowing swiftly to the coast. After 25 years of construction, the scheme was completed in 1974. It then consisted of seven power stations, 16 major dams, 145 kilometres of tunnels and 80 kilometres of aqueducts. It was a remarkable engineering achievement funded by the Commonwealth. A principal object was to supply electricity to New South Wales, Victoria and the Australian Capital Territory and the cost of the project has been met by charges for the electricity supplied. A further object was to augment the waters of the Murray–Darling Basin [page 360] for irrigation.24 The scheme now supplies electricity to about 80 per cent of the national electricity system, in New South Wales, Queensland, Victoria, ACT, Tasmania and South Australia. In 2002 the original Hydro-electric Authority was incorporated to become Snowy Hydro Limited. The shareholders are New South Wales, Victoria and the Commonwealth.

National agreements about health and hospitals For many years the Commonwealth has provided funding to the states helping to defray the costs of maintaining health and hospital facilities, which bear heavily on their annual budgets. In the 1946 referendum, electors in all states agreed that the Commonwealth should gain additional social services powers by the insertion of s 51(xxiiiA) in the Constitution, giving the Federal Parliament the power to make laws with respect to the provision of a variety of benefits including pharmaceutical, sickness and hospital benefits, and medical and dental services. In reliance on this power, the Commonwealth has directly provided benefits at great financial cost to the entire Australian community, notably Medicare,25 first introduced as Medibank by the Whitlam Government in 1975, and the Pharmaceutical Benefits Scheme (PBS) which began in a modest way as early as 1948. In more recent years, the cost to all governments of providing medical and hospital benefits have continued to increase, largely as a result of

valuable but costly technical innovations well beyond overall increases in the cost of living. One result of this has been to make the states unable to maintain their public hospitals satisfactorily and to meet consumer demand for a [page 361] wide variety of medical services without increased levels of federal financial assistance. In 2007 the newly elected Rudd Government expressed concern about the state of national health and hospital services and subsequently promised to seek radical improvements through cooperative Commonwealth–state arrangements. The Intergovernmental Agreement on Federal Financial Relations, negotiated towards the end of 2008 between the Commonwealth and the states and territories, created five new national specific purpose payments (SPPs). Each SPP was associated with a national agreement containing objectives, outcomes, outputs and performance indicators and defining the roles and responsibilities of the Commonwealth and states in the delivery of services. Each provided for funding mainly on the part of the Commonwealth over a five-year period. National Healthcare Agreement One of these agreements was the National Healthcare Agreement. Its expressed aim was to improve health outcomes for all Australians based on their needs and not on their ability to pay. Another purpose was to focus on prevention of disease and injury and maintenance of health, rather than simply the treatment of illness. The agreement provided that the Commonwealth and states and territories would jointly fund public hospitals and public health programs and various other health-related services and that the states and territories would jointly fund some other services such as food safety regulation and ambulance services. According to COAG, the National Healthcare SPP would total $60.5 billion over five years, most of it coming from the Commonwealth. National Health and Hospitals Network Agreement

At the instigation of the Commonwealth, COAG met in Canberra in April 2010 with a view to obtaining agreement on major health and hospital reforms. In the end COAG announced that, with the exception [page 362] of Western Australia, an historic agreement had been reached, to establish a national health and hospitals network and provide a secure funding basis for the future. The agreement was presented as the principal reform since Medicare. The agreement was only possible because of a Commonwealth undertaking to increase by way of SPPs its contribution to the state hospital system from about 40 per cent to 60 per cent. The Commonwealth also agreed to provide an increasing benefit to the states as the gap widened between the GST revenue base and increasing health costs, estimated to absorb $15.6 billion in additional growth costs in the five-year period between 2014/15 and 2019/20. In return, the five states eventually brought themselves to agree that from 1 July 2011, the Commonwealth could retain 30 per cent from the current entitlements of each state to GST revenue, for the Commonwealth to allocate to the health and hospital services. Western Australia’s decision not to enter into the Agreement was partly due to its objection to surrendering part of its GST entitlement. The establishment of a National Health and Hospitals Network was the centrepiece of the agreement. State-based intergovernmental funding authorities would receive Commonwealth funds through the National Health and Hospitals Network fund, out of which Local Hospital Networks would be paid on an activity basis for public hospital services. National Health Reform Agreement 2011 The 2010 agreement was soon replaced with the 2011 National Health Reform Agreement, which was agreed to by all states now that the Commonwealth was not insisting on any giving up of GST revenues (although its funding promises were less generous). A statutory authority, the National Health Funding Body,

was set up to administer the financial payments to support the health system by states and the Commonwealth. These agreements on health are a paramount example of Commonwealth financial ascendency. While they may be said to reflect a spirit of cooperation between the Commonwealth and the states, they are also the product of [page 363] the same sort of political point-scoring and brinkmanship that is too often visible in the field of Commonwealth–state relations.

Education As in the case of health and hospitals, during the first half of the last century the states alone were responsible for education at all levels. After World War II it was clear they had insufficient resources to finance education at all levels, in particular at tertiary level where there was a rapidly increasing demand in the community for university qualifications. In 1959 the Commonwealth took over major responsibility for financing universities with a Universities Commission being responsible for working out how funds should be allocated. The demand for university places increased further in the 1970s, after the Whitlam Government declared that everyone should have the right to attend a university and that tertiary education should be free. Although fees for university education have been reinstituted, the Higher Education Contribution Scheme (HECS) and its later iterations have enabled students effectively to defer payment. The number of universities has grown and student enrolments have proliferated. Apart from tertiary education, the states have remained in control of education but at high cost. Health and education have been equally costly and together have accounted for around 46 per cent of annual state budgets in the present century. By 2000 it had become apparent that the quality of primary and secondary school education varied considerably between states and that the education system as a whole was not keeping pace with the requirements of an

expanding global economy and an increasingly complex way of life. In 1999 a ministerial council agreed to a set of national goals for schooling in the 21st century aimed at providing schooling that would secure for students the necessary knowledge, understanding, skills and values for a productive and rewarding life. In December 2004 Federal Parliament passed the Schools Assistance (Learning Together–Achievement Through Choice and Opportunity) Act 2004 (Cth). The Act aimed at development [page 364] of comparative measures for assessing and setting performance in areas of education which included literacy and numeracy, and mathematics and science. A Performance Measurement and Reporting Task Force had the responsibility of implementing a management strategy for national key performance measures. In 2008 a major Commonwealth initiative obtained COAG approval for a National Education Agreement described by the Commonwealth Education Minister as amounting to a revolution in education. The parties committed themselves to the objective that all Australian school students should acquire the knowledge and skills to participate effectively in society and employment in a globalised economy. The Agreement recognised that Year 12 or its equivalent was central to successful policy outcomes. It also recognised needs to improve overall teaching quality and to work out integrated strategies for schools with a low socioeconomic status. Shared responsibilities of the Commonwealth and the states under the Agreement included reviewing the performance of school systems and individual schools against national agreed outcomes, and developing a national curriculum. All governments recognised that the collection, provision and publication of data on student outcomes and school performance was essential for public accountability and to support the continuous improvement of schools, students and education systems. The Commonwealth undertook to allocate funds to the states and territories sufficient to meet the national agreed outcomes and objectives. The Commonwealth also committed itself to ensuring that the

funding arrangements for non-government school systems and schools were consistent with the responsibilities of the states and territories under the Agreement. The revolution turns not so much on the Commonwealth’s commitment to funding education provided by the states, as on the commitment of the parties to national reporting on the performance of individual schools for accountability, school evaluation and resource allocation. A new Australian Curriculum Assessment and Reporting Authority was to be supplied with the information necessary to provide the public with information on the [page 365] performance of each school in Australia, to allow like schools to be compared with other schools.26 An eager Federal Government moved at once to maximise its role under the Agreement. The Minister for Education announced that the Schools Reform Plan was a National Partnership, and that the governments would work together to identify disadvantaged school communities, and that the Commonwealth would write new targets into specific payments to be negotiated with state and territory governments. Funding for non-government schools and school systems was to be appropriated through separate legislation, the Schools Assistance Act 2008 (Cth). The Commonwealth took several major steps: •

It established a National Secondary School Computer Fund to provide computers for the use of all students in secondary schools.

•

It established a National School Pride Program to provide states with funds for government and non-government schools to improve infrastructure, including refurbishing buildings and constructing or upgrading outdoor learning areas, sporting grounds and facilities. Almost 6,000 schools were immediate beneficiaries.

•

It established a My School website providing information about each

school in Australia: the type of school, student and staff numbers, student attendance rates, socioeconomic background of the student body and teaching resources. The website publishes a ranking of all schools in Australia, which number almost 10,000. •

Against resistance from segments of the teaching profession, it implemented a literacy and numeracy (NAPLAN) program for all students in Years 3, 5, 7 and 9 to be tested in writing, spelling, grammar and punctuation, and numeracy. [page 366]

•

It called for the introduction into all schools of a national curriculum requiring the teaching of core subjects, identified as mathematics, science, English and history with emphasis on Australian history. In the field of education, the Commonwealth has remained less interventionist than in health. In both areas, however, because of its financial power, the Commonwealth enjoys a level of control, despite the fact that the states are the primary providers of these essential services.

National Affordable Housing Agreement The Federal Government’s involvement in housing originated with the Curtin Government, which in 1943 appointed a Commonwealth Housing Commission that visited all states to study housing needs. Subsequently, a series of Commonwealth–state housing agreements offered different forms of housing assistance. By the 1970s concern over poverty led to further Commonwealth– state housing agreements directed towards financial assistance for low income renters and those wishing to purchase homes. The Housing Assistance Act 1996 (Cth) provided for Commonwealth grants to states and territories for housing assistance, at the same time as giving them more flexibility to allocate funds between rental and home purchase. In 2003 another housing agreement made pursuant to the 1996 Act provided funding to assist persons seeking housing who could not afford to buy on the private market. The agreement specifically

recognised the special needs of the Indigenous population. In 2008 the Commonwealth, the states and territories, and the Australian Local Government Association, entered into a National Affordable Housing Agreement to be read with the Intergovernmental Agreement on Federal Financial Relations and to take effect from 1 January 2009. The parties committed themselves to a range of reforms to improve housing affordability for homeless persons, to assist others to be able to rent housing to meet their needs and also to enable low and moderate income households to purchase affordable housing. The agreement also sought to give Indigenous [page 367] people improved housing amenity and to reduce overcrowding especially in remote areas. Commonwealth financial assistance was by way of SPPs. The states were to be responsible for determining the level of funds directed towards particular government programs and services. COAG agreed that the Ministerial Council for Federal Financial Relations should examine other COAG processes to determine the best opportunities for substantial improvement in housing supply and affordability. Needless to say the housing agreement is another manifestation of vertical financial imbalance between the Commonwealth and the states.

Concluding observations It is perhaps curious that the founders did not devote more attention to a formal system for promoting Commonwealth–state relations. What might have been desirable in the interests of regulatory harmony in a federal system has become — in the presence of the vertical fiscal imbalance which now defines the financial position of Australia’s governments — a necessity. The current system for cooperation, operating primarily under COAG and its councils, has evolved to the point where a considerable institutional architecture is available to manage cooperative endeavours. What no amount of cooperative institutions can hide, however, is that in the federation (as elsewhere) with money comes power. The

Commonwealth has used that opportunity to expand its spheres of influence far beyond what most of the founders imagined would be possible. Although the particular institutions are liable to frequent alteration, the need for COAG-like institutions to promote Commonwealth–state cooperation will be a permanent feature of Australian government.

1.

2. 3. 4. 5. 6. 7. 8. 9. 10. 11. 12. 13. 14.

15. 16.

17. 18. 19. 20.

In 1928 a constitutional amendment enabled the Commonwealth to take over the public debts of the states and provided for the making of financial agreements between them to regulate future public borrowing. Victoria v Commonwealth (1926) 38 CLR 399 (Federal Roads case). New South Wales v Commonwealth (1908) 7 CLR 179; 14 ALR 625. South Australia v Commonwealth (1942) 65 CLR 373; [1942] ALR 186 (First Uniform Tax case). House of Representatives Joint Standing Committee on Constitutional Review, Report from the Joint Committee on Constitutional Review, Parliament of Australia, Canberra, 1959, pp 137–8. (1997) 189 CLR 465; 146 ALR 355. (2007) 229 CLR 1; 231 ALR 1; [2006] HCA 52. (1983) 158 CLR 1; 46 ALR 625. (1971) 122 CLR 353; [1971] ALR 449. (1962) 108 CLR 372; [1963] ALR 304. (1976) 136 CLR 1; 9 ALR 199. (1997) 190 CLR 410; 146 ALR 495 (Henderson’s case). (1997) 190 CLR 410 at 443; 146 ALR 495 at 511. A New Tax System (Goods and Services Tax) Act 1999 (Cth); A New Tax System (Commonwealth– State Financial Arrangements) Act 1999 (Cth). The arrangements also applied to Commonwealth territories. N Warren, ‘Reform of the Commonwealth Grants Commission: It’s All in the Detail’ (2008) 32(2) University of New South Wales Law Journal 530, p 531. At the height of the nationwide depression in the early 1930s, the left wing Lang Labor Government in New South Wales reneged on its obligation to pay interest due on loans under the Financial Agreement. The Commonwealth sought to enforce the state’s obligations by legislation empowering it to garnishee moneys such as its taxes and bank credits owing to New South Wales. The High Court upheld the Commonwealth’s position in New South Wales v Commonwealth (1932) 46 CLR 155 (Garnishee case). The Lang Government was later dismissed by the Governor of the state. (1962) 108 CLR 130; [1962] ALR 547. (1975) 135 CLR 337; 8 ALR 1. (1999) 198 CLR 511; 163 ALR 270; [1999] HCA 27. In R v Hughes (2000) 203 CLR 535; 171 ALR 155; [2000] HCA 22, the High Court expressed some doubts as to whether a state could require — as distinct from merely authorise — Commonwealth statutory officers to perform state functions, even with the agreement of the Commonwealth, in pursuance of federal legislation enacted under the implied national power or the incidental power in s 51(xxxix).

21. 22. 23.

24.

25.

26.

Section 51(xxxii), (xxxiii) and (xxxiv). New South Wales v Commonwealth (1975) 135 CLR 337; 8 ALR 1. At the request of all the states under s 51(xxxviii), in 1980 the Commonwealth Parliament passed the Coastal Waters (State Powers) Act 1980 (Cth) and the Coastal Waters (State Title) Act 1980 (Cth) to restore (subject to certain restrictions) state title to, and preserve the right of the states to regulate and carry on certain activities within, ‘coastal waters’, the three-mile territorial sea they had formerly treated as within their powers before the Seas and Submerged Lands case was decided. These rights included subterranean mining and laws relating to ports, harbours and other shipping facilities and laws with respect to fisheries. Doubts expressed at the time as to whether the Commonwealth could validly engage in the construction and operation of the scheme influenced the drafting of the 1949 Act. In case it proved necessary to call on the Commonwealth’s defence and territories powers, the Act specifically stated that a purpose was to supply electricity to the Australian Capital Territory, a relatively minor user, and that the project was in the interests of the defence of the Commonwealth. The validity of the scheme has never been challenged in the courts. Medicare provides free or subsidised health care services to the Australian population. It provides free hospital services for public patients in public hospitals through the Australian Health Care Agreements with the states, subsidises private patients for hospital services (75 per cent of the Schedule fee) and provides benefits for out-of-hospital medical services such as consultations with GPs or specialists (85 per cent of the Schedule fee). National Education Agreement 2008 cl 32 reads in part: ‘The Authority will provide the public with information on each school in Australia that includes data on each school’s performance, including national testing results and school attainment rates, the indicators relevant to the needs of the student population and the school’s capacity including the numbers and qualifications of its teaching staff and its resources.’

[page 369]

Chapter 25

The Future of the Commonwealth-State Balance The Commonwealth protecting its position Federal history has witnessed a progression of Commonwealth intrusions into state areas of traditional responsibility. The Commonwealth has rarely exercised restraint when legislating to preserve the traditional roles of the states. In 1929 the Nicholas Royal Commission recommended the return of the Commonwealth industrial power in s 51(xxxv) of the Constitution to the states. The Constitutional Commission, which reported in 1988, recommended that the states, as well as the Commonwealth, should have power to initiate amendments to the federal Constitution.1 No such concession to the states has resulted. In the early days of federation, the Commonwealth Parliament took actions to shore up its position and to remove restraints on particular powers that operated in favour of the states. Under s 87, for example, for 10 years after the establishment of the Commonwealth and thereafter until Parliament otherwise provided, the Commonwealth was precluded from retaining more than onefourth of customs and excise duties towards its expenditure. When the 10 years were up, the Commonwealth removed the restraint, and granted the states a per capita payment of 25 shillings from [page 370] Commonwealth revenues. Under s 94, the Federal Parliament is empowered to

provide on such basis as it deems fair for the monthly payment to the states of all its surplus revenue, which the founders thought would be considerable. However, by creating a system of trust accounts pursuant to the Surplus Revenue Act 1910 (Cth), the Commonwealth ensured that there would be no surplus revenue. The High Court upheld the Act.2 Of the 44 proposed laws for constitutional change submitted by the Commonwealth to a referendum under s 128 of the Constitution, only one would have potentially enhanced state powers, namely the unsuccessful proposal promoted by Labor Attorney-General Gareth Evans to provide that just as states may refer specific powers to the Commonwealth under s 51(xxxvii), the Commonwealth should be able to (in effect) refer its exclusive legislative powers to the states. Most proposals have been for increased Commonwealth legislative powers.

States contributing to Commonwealth power There was general agreement that when the Howard Government lost office in 2007, the factor that had damaged it most was its Work Choices legislation, which severely reduced union participation in employer–employee negotiations. The legislation, based on the corporations power in s 51(xx), virtually rendered otiose the Commonwealth’s conciliation and arbitration power under s 51(xxxv). In line with an electoral promise, the incoming Rudd Labor Government legislated for the removal of Work Choices in favour of a policy entitled Fair Work Australia, which involved, among other things, a restoration of union influence in the industrial scene. It was widely thought at the time that the government would revert to making use of the conciliation and arbitration power conferred by s 51(xxxv). Instead, however, the Fair Work legislation, like its predecessor, rests primarily on the corporations power and does not provide for a return to primary reliance on the conciliation and arbitration process. [page 371] The corporations power of para (xx) applies only to so-called constitutional

corporations: that is, foreign corporations and Australian trading or financial corporations. There are corporations that do not fall within this description, for example, welfare corporations and purely scientific corporations. Further, the power does not generally extend to non-incorporated businesses such as those carried on by sole traders or partnerships. To compound the erosion of state power in the area of employment, the states, apart from Western Australia, agreed with the Commonwealth Government to rectify this deficiency in the corporations power by referring the necessary power to the Commonwealth under s 51(xxxvii) of the Constitution. Victoria alone had already referred power to the Commonwealth over its industrial conditions by the Commonwealth Powers (Industrial Relations) Act 1996 (Vic).3 The Industrial Relations (Commonwealth Powers) Act 2009 (NSW) which commenced operation on 1 January 2010 deals with the New South Wales reference.4 The Fair Work Act 2009 (Cth) is made to apply as from 1 January 2010 to all New South Wales private sector employers and their employees. This was done by extending the definitions to cover the shortcomings in the corporations power. Thus sole traders, partnerships and incorporated bodies that are not constitutional corporations, which previously remained in the state industrial relations system, are now covered by the Commonwealth Fair Work Act. Accordingly, to some extent the states have been partners in their own decreasing influence through referring additional powers to the Commonwealth.

Attitudes to the federal system If the referendum results under s 128 are any guide, Australians take the existing federal system for granted and are well able to distinguish between state and federal politics. According to some advocates of a stronger role for the states under the federal system, this explains why electors frequently [page 372] vote for one political party at federal elections but for a different party when they are electing state parliamentarians. At the other end of the spectrum, there

are those who now see traditional state concerns as subordinate to the role of states in the implementation of federal government policies.

Council for the Australian Federation Although all states are willing participants in the Council of Australian Governments (COAG), in contrast to the Commonwealth, the states do not always speak with one voice and hence can be placed at a disadvantage. In October 2006, the states along with the ACT and Northern Territory formed the Council for the Australian Federation (CAF) to support and enhance the federal system by providing an inter-governmental forum for state and territory leaders. One of the objectives was to promote and communicate to the community the benefits of Australia’s federal system in providing diversity of policy options. Another objective was to facilitate the making of agreements with the Commonwealth in COAG by adopting a common position among the states and territories. In 2007 Professors Anne Twomey and Glenn Withers produced a report for the Council on Australia’s federal future.5 The report pointed out that there was a strong international trend towards federalism and the decentralisation of power in various European countries including France, Germany, Italy, Spain, Switzerland and the United Kingdom. Every geographically large country was said to be a federation. Russia, Canada, the USA, Brazil, India, Argentina, Mexico, South Africa and Venezuela were cited as instances. Even China was a quasi-federation, with its provinces and autonomous regions being given substantial economic and political authority. In contrast to the situation overseas, the report stated: Recent trends in Australian federalism show a shift from competitive and co-operative federalism to a system of ‘opportunistic federalism’, where the

[page 373] Commonwealth uses its array of financial and legislative powers to intervene selectively in areas of traditional State responsibility to make ideological or political points. In doing so, the

Commonwealth undermines the benefits of federalism and exacerbates problems such as duplication and excessive administrative burdens.6

The authors accused the High Court of Australia as being one of the main contributors to increasing centralism in Australia. They quoted its Work Choices decision in 2006, which expanded the federal corporations power to enable the Commonwealth to deal comprehensively with employer–employee industrial relationships regardless of the constraints in s 51(xxxv) limiting the Commonwealth power to the settlement and prevention of industrial disputes beyond the limits of the states by the processes of conciliation and arbitration. According to Twomey and Withers, the court’s focus on the words of the Constitution, rather than the federal structure it created and the intended role of the states within that structure distorted the federal balance. The authors also criticised another decision of the court holding that state business franchise fees imposed on tobacco, liquor and petroleum, which provided substantial revenue to the states, amounted to excises and therefore were within the exclusive legislative power of the Commonwealth.7 The authors then took to task the GST, which was intended, as a growth tax, to replace general financial assistance grants to the states and to substitute for their lost franchise fees. The requirement in the 1999 GST inter-governmental agreement requiring various state taxes to be abolished and others to be reviewed, they argued, further reduced the capacity of the states to raise their own taxes. They did not specify the amount of the loss of revenue, possibly because the states were committed to abolish only relatively minor taxes.8 [page 374] The authors also lodged an assault on specific purpose payments, the main source of revenue to the states other than the GST. Such payments, they pointed out, amounted to approximately 40 per cent of total Commonwealth payments to the states. All were tied to conditions imposed by the Commonwealth and this enabled the Commonwealth to dictate aspects of state policy. The report concluded that the current approach of the Commonwealth Government was to assume control of various aspects of state policy, either through tied grants or the

expansive exercise of its legislative powers, and reduce states to the function of service provision. The authors named a range of benefits that flow from federalism, including: •

checks on power to protect individuals from an overly powerful government;

•

competition between states encourages them to be innovative, improving their performance and enabling the states at times to lead the Commonwealth in proposing reform; and

•

allowing policies and services to be tailored to meet the needs of the communities they directly affect and take account of differences in climate, geography, demography, culture, resources and industry across the nation. The recommendations of the two authors included: •

improving the operation of special purpose payments so that instead of the Commonwealth dictating terms, they support the achievement of outcomes agreed between the states and the Commonwealth and provide incentives to find more efficient ways to achieve the desired outcomes;

•

reallocation of roles between the federal and state governments, for example, the states to be responsible for pre-school and secondary education with the Commonwealth responsible for vocational and higher education;

•

the institutionalisation of COAG and clarification that it is not just a creature of the Commonwealth; and [page 375]

•

constitutional reform to enable the Commonwealth to refer federal powers to the states just as the states may refer powers to the Commonwealth under s 51(xxxvii) of the Constitution. The report did not examine the possibility of all states agreeing (as they would have to for the change to occur) to resume their constitutional power to

levy income tax, and even to have it collected by the Commonwealth on their behalf, so as to reduce Commonwealth fiscal domination resulting largely from the uniform tax arrangements agreed to during World War II. In May 2009, Professors Wanna, Phillimore and Fenna and Dr Harwood submitted a report to the Council for the Australian Federation entitled ‘Common Cause: Strengthening Australia’s Cooperative Federalism’,9 stating that a promising new era of cooperative federalism had begun and there was a mood for change and a desire to make federalism work better. Their report identified the Inter-Governmental Agreement on Federal Financial Relations of November 2008 as shifting the focus of Commonwealth-state funding relationships, from inputs and processes, to the achievement of mutually agreed outcomes. Like the report of Twomey and Withers, this report was about how federalism could work better. The report identified three main principles said to underpin the cultural and institutional, legal and financial changes it proposed. The first was ‘subsidiarity and the proximity of government to the community’. According to the report, the reason for a federal structure was to allow local communities to shape policies to meet their own preferences and needs. State and territory governments, being closer to their communities, were best placed to represent them when engaging with the national-level government. Subsidiarity encouraged retention of control at the sub-national level unless there were clear reasons to do otherwise. [page 376] The second principle was ‘the alignment of responsibilities with jurisdictional boundaries as far as practicable’ which seems to be a corollary to the first principle. Under this principle ‘responsibility for undertaking a particular government activity should lie with the level of government whose boundaries the geographical scope of that activity most clearly approximates’.10 While this second principle means that each state should be free to develop its own policies on internal matters, the authors recognised that there could be consequences for

the rest of the Commonwealth. These the authors called ‘spillovers’. While some were harmless, others could be undesirable, in which event the presumption in favour of diversity should give way to uniformity and allow the Commonwealth to enter into the picture. For example, the principle would support harmonisation by the Commonwealth to remove the barriers to trade imposed by inconsistent state regulation, in the interests of achieving a national seamless economy. Another example of ‘spillover’ that could lead to federal intervention was where there were significant economies of scale if the Commonwealth were to take action. The report stated that the possible negative effects of the states imposing different levels of income tax was one of the main reasons why income taxation was placed in the hands of the Commonwealth. The third principle, ‘engagement and cooperation between governments’, is at the core of all discussions on federalism and the authors recognised it as being the most important principle in the current Australian context. The authors conclude that ‘Australian governments need to commit to a new era of cooperative federalism and embed genuine collaboration across all stages of the policy process. The community expects no less’.11 The report is a serious, balanced attempt to strengthen cooperative federalism and render Australia fully capable of responding to 21st century realities. Some parts invite controversy, for example, the opinions expressed about subsidiarity which assert that the Commonwealth should not usurp a state’s right to act where the state is capable of giving effect to federal [page 377] policy, even though the Commonwealth may perform the same activity more efficiently. In 2014 a proposal for the states to introduce income taxes was amongst those put to the Abbott Coalition Government by a Commission of Audit. The Commission’s role was primarily to report on fiscal and budgetary issues in preparation for an austere Commonwealth budget in May, and there is much

doubt that it has any capacity to bring on a major restructuring of the federal balance. When Prime Minister Malcolm Turnbull took this very issue to COAG in 2016, there was no agreement on it. It is hard to imagine a consensus ever developing among states to disturb the uniform tax system as a number of states are likely in a stronger financial position under current arrangements than they would be under any devolved system of income taxation. Exponents of reform of Australian federalism in fact advocate a wide range of approaches. Apart from those arguing for a replacement of the states with smaller regional governments, there are others who would reduce the states to the role of service providers acting for the Commonwealth.12 Others favour the idea of a coordinate distribution of Commonwealth and state roles, with state constitutional powers being specifically defined, much as the Commonwealth’s are. Coordinate federalism largely disappeared after the High Court’s decision in the Engineers’ case13 in 1920 and the prospects of its revival appear minimal. Professor Brian Galligan has seen the processes for reforming Australian federalism differently. He advocated looking mainly to politics and subinstitutional reform as the most promising avenues for reform, basing his argument on a set of propositions as follows: The first is that there are multiple processes for reforming Australian federalism and that these processes are more varied and complex than is often assumed in essentialist notions of reform discourse that tend to view

[page 378] federalism as a static institutional or conceptual construct. The second is that the interactivity of these processes is significant in achieving, or indeed frustrating, reforms. The third is that reform processes are more developmental and incremental, rather than programmatic and discrete. The fourth is that federal reform processes — mainly political, though involving competitive and cooperative aspects — are already in place and working tolerably well. The fifth is that negative prognostications often draw upon unexamined assumptions and models of federalism that generate problems more imagined than real. The appropriate reform process for these federal problems is an academic one: more critical reflection and argument to improve our conceptual grasp of the complex governmental beast that Australian federalism truly is, and further research to establish what is really going on in a period of dynamic political federalism.14

Galligan regarded concurrency as the defining character of the Australian division of powers, deliberately adopted by the founders in defining the Commonwealth’s legislative powers with only a few being exclusive to the Commonwealth. One of the reasons, he said, was to allow orderly transition from separate colonial to common federal legislation. A stronger reason was that it allowed flexibility and fluidity rather than packaging up respective roles and responsibilities. Contrary to the preponderant opinion that the founders made a fundamental error in not securing the financial independence of the states, he saw the allocation of roles and the respective powers of the Commonwealth and the states as a deliberate design. In their wisdom, the founders left it to future generations to work out the precise relationships. Just as the Commonwealth might oust the states completely in the future, it might also allow them to share national functions in various ways. Political considerations dominate the approach to federal reform, and competition between the Commonwealth and the states has been an element [page 379] of it. However, competition and cooperation were not binary opposites but could coexist and adjust in dynamic combinations.15 Galligan took to task the many commentators who see greater centralisation of national power as the likely consequence of Australia’s response to globalisation. This view, he said, ignored the larger ‘paradigm shift from a world of sovereign nation-states to a world of diminished state sovereignty and increased interstate linkages of a constitutionally federal character’.16 However, on the whole events seem to have enhanced central sovereignty rather than the reverse, and the ‘paradigm shift’ could be seen as having most of its work still to do in order to achieve the effects required of it in Galligan’s analysis.

Concluding observations Commonwealth reforms introduced under the Rudd Government in 2007 and 2008 to traditional areas of state power such as health and hospitals, education

and housing, and the steps taken by a series of federal governments to achieve a seamless national economy, leave the states with a much diminished range of governmental functions in which they can adopt policies free from federal intrusion. The states are vastly more experienced and qualified than the Commonwealth as service providers in the execution of federal reforms which directly affect the day-to-day lives of their residents. In 2009 the [page 380] Federal Government introduced a scheme to subsidise the insulation of dwellings of all kinds, apparently as an environmental measure. Although most housing by far is situated in the states, nevertheless the government did not entrust states with implementing the scheme. Instead, the task was given to the Commonwealth Department of the Environment, Water, Heritage and the Arts and the execution of the scheme turned into a costly debacle.17 Commonwealth fiscal domination is bound to continue in the foreseeable future, but recent experience shows that it can best achieve its policy objectives in partnership with the states, albeit with states often cooperating reluctantly and at times under some pressure from the threat of unfavourable consequences if they don’t. The Commonwealth has achieved such financial dominance that—except in the context of an extraordinary constitutional change under s 128 — it is unrealistic to contemplate any major redefinition of legislative powers which would serve to increase the role of the states. It is nearly impossible to speculate what the state of the federation and the roles of the states would be today in the absence of the uniform tax system which has formed the basis for the Commonwealth to build up its influence.

1.

Constitutional Commission, Final Report of the Constitutional Commission 1988, vol 2, Australian

2. 3. 4.

5. 6. 7. 8.

9. 10. 11. 12. 13. 14. 15.

16. 17.

Government Publishing Service, Canberra, 1988, pp 856–61. New South Wales v Commonwealth (1908) 7 CLR 179; 14 ALR 625 (Surplus Revenue case). This was, however, repealed and replaced by the Fair Work (Commonwealth Powers) Act 2009 (Vic). See also Fair Work (Commonwealth Powers) and Other Provisions Act 2009 (Qld); Fair Work (Commonwealth Powers) Act 2009 (SA); Industrial Relations (Commonwealth Powers) Act 2009 (Tas). A Twomey and G Withers, Federalist Paper 1: Australia’s Federal Future, Council for the Australian Federation, Australia, 2007. Twomey and Withers, note 5 above, p 5. Ha v New South Wales (1997) 189 CLR 465; 146 ALR 355. Adding to their cause, the authors noted that Commonwealth revenue as a proportion of GDP increased by more than the revenue from the GST over the entire GST period, giving the Commonwealth a gain of some $20 billion. J Wanna, J Phillimore, A Fenna and J Harwood, Common Cause: Strengthening Australia’s Cooperative Federalism, Council for the Australian Federation, 2009. Wanna et al, note 9 above, p 10. Wanna et al, note 9 above, p 26. A notable exponent of the latter view was Peter Costello, who achieved considerable prominence as Treasurer in the Howard Government. Amalgamated Society of Engineers v Adelaide Steamship Co Ltd (1920) 28 CLR 129; 26 ALR 337. B Galligan, ‘Processes for Reforming Australian Federalism’ (2008) 31(2) University of New South Wales Law Journal 617, p 619. Galligan, note 14 above, pp 639–41. Galligan referred to the argument that competition was the dominant mode and cooperation a lesser mode in understanding how federalism works and the processes for its reform. Such a view drew mainly on economic arguments and evidence. He referred specifically to views expressed by the economist Cliff Walsh in his article, ‘Competitive Federalism: Wasteful or Welfare Enhancing?’ in Productivity Commission, Productive Reform in a Federal System: Roundtable Proceedings (2006) 53. Walsh also saw horizontal competition between the states as a significant component in the reform process. Twomey and Withers (see note 5 above) also saw competition between the states as a benefit of federalism. Competition allowed creativity and innovation, which was at risk as Commonwealth influence continued to increase. They went as far as to say if firms and households in a state became dissatisfied with prevailing conditions in their state, for example, excessive charges for essential services or allowing reliability of services such as electricity and transport to deteriorate, they were free to leave the state and live elsewhere in Australia. Galligan, note 15 above, p 628. See, for example, Commonwealth of Australia, Report of the Royal Commission into the Home Insulation Program, Canberra, 2014.

[page 381]

Chapter 26

The States The Constitution presumes the pre-existence of the colonies, which it transforms into the states, whose continuation is guaranteed by s 106 of the Constitution:1 The Constitution of each State of the Commonwealth shall, subject to this Constitution, continue as at the establishment of the Commonwealth, or as at the admission or establishment of the State, as the case may be, until altered in accordance with the Constitution of the State.

Notice, however, that the state constitutions are made ‘subject to this Constitution’. This imposes various limitations on state powers, arising, amongst other things, from the separation of judicial power in Ch III of the Constitution (addressed below), express limitations in the Constitution such as s 92 (see Chapter 23), and implied restrictions such as the Cigamatic2 doctrine (see Chapter 14).

State legislative power Unlike the Commonwealth Constitution, each state constitution vests the state Parliament with general legislative power. For example, s 5 of the Constitution Act 1902 (NSW) empowers the Parliament to make laws for the ‘peace, welfare and good government’ of the state. In Victoria, the formula reads as a power to make laws ‘in and for Victoria in all cases whatsoever’. In Western Australia the constitution reads as a power to legislate ‘for the peace, order and good government of the colony of Western Australia’. In 1988 in Union Steamship [page 382] Co of Australia Pty Ltd v King,3 the High Court held in connection with the

New South Wales Constitution Act that the words ‘peace, welfare and good government’ described a plenary power and were not words of limitation. A state law could not be challenged on the ground that in fact it did not secure the welfare of the state or was not in the public interest. This is understood by all authorities to be the position in relation to the legislative powers of every state, despite some variations in the wording of their constitutions.4 Another feature of the state constitutions is that each has inherited the doctrine of parliamentary supremacy, a basic principle of the United Kingdom legal system, and each incorporates the Westminster system of government. Consequently, the state constitutions do not expressly recognise the existence of the Cabinet form of government under which the ministers of state manage its government and are answerable to Parliament for what they do. Nonetheless, the states practise a form of representative and responsible government similar to the Commonwealth’s.

Extraterritorial power There were serious doubts before Federation whether the colonial legislatures could make laws having extraterritorial effect (that is, applying beyond the land territory of the colony). The United Kingdom maintained a monopoly over all matters extending beyond colonial territorial limits. After Federation it took a few years for the situation to be clarified, but there was no serious doubt that a state legislature could make laws having an extraterritorial operation as long as they could be seen to have a sufficient connection with the peace, order and good government of the state.5 As a matter of statutory interpretation, to have extraterritorial effect a law will also need to displace the presumption against extraterritorial operation by clearly expressing that its application is to be extraterritorial.6 [page 383] In Pearce v Florenca in 1976,7 the defendant, a fisherman in Western Australia, was charged under the Fisheries Act 1905 (WA) with the unlawful

possession of undersize rock lobsters. The Act defined Western Australian waters to include the sea from high-water mark to three nautical miles from low-water mark. The High Court had, in the Seas and Submerged Lands case,8 held these waters to be within Commonwealth jurisdiction and beyond the limits of the states. Florenca was alleged to have committed the offence between one-and-ahalf miles and two miles off the coast of Geraldton. A unanimous High Court held that he was validly convicted. The law, though it addressed waters beyond the state, had a sufficient connection with the peace, order and good government of the state. With the Australia Act 1986 (Cth) (examined in Chapter 13), the Commonwealth Parliament gave its imprimatur to the position by declaring that the legislative powers of the Parliament of each state included full power to make laws that have extraterritorial operation, if they are laws for the peace, order and good government of that state. However, one limitation arises from the need to avoid the legislation of one state from encroaching on similar matters dealt with by the legislation of another state.9 In 2002 in Mobil Oil Australia Pty Ltd v Victoria,10 the High Court held that a state was not necessarily prohibited from giving an extraterritorial effect to its legislation that would have an effect on its relationship with another state or its residents, or that would determine the legal consequences of actions occurring in another state. As Gleeson CJ stated: The idea that all transactions and relationships giving rise to legal consequences can be located ‘in’ one particular state or territory is unrealistic … For the claim of a resident of New South Wales against a Victorian company which has manufactured, in Victoria, a defective product that was later supplied in New South Wales to be brought into

[page 384] representative proceedings in a Victorian court does not impinge on the relationship between the New South Wales resident and the New South Wales Government.11

Manner and form restrictions on state constitutional powers

Under their constitutions, the state Parliaments may amend their constitutions by ordinary laws. A state Parliament may, however, legislate to restrict the power to amend its constitution in that simple way. Section 6 of the Australia Act 1986 (Cth) states that such an amending law ‘shall be of no force or effect unless it is made in such manner and form as may from time to time be required by a law made by that Parliament’. Before 1986, the Colonial Laws Validity Act 1865 of the Imperial Parliament imposed a similar requirement. In 1930 the Labor Government in New South Wales sought to abolish the state’s Upper House, the Legislative Council. In Attorney-General for New South Wales v Trethowan,12 the High Court held that two bills passed by the New South Wales Parliament to effect the abolition could not lawfully be presented to the Governor for His Majesty’s assent — the final step in giving them the force of law. One bill was to repeal s 7A of the Constitution Act 1902 (NSW), and the other was to abolish the Legislative Council. Neither had been submitted to the electors as s 7A required. This section provided that a bill to abolish the Council was not to be presented for assent unless first approved by the electors at a referendum and that a similar requirement should apply to a bill to repeal or amend s 7A itself. The High Court decision was upheld by the Privy Council.13 In Attorney-General (WA) v Marquet in 2003,14 the High Court enforced a manner and form provision in the Electoral Distribution Act 1947 (WA) which prevented the repeal of that legislation without an absolute majority of [page 385] the total number of members of each House supporting it; in that case, only a majority of the number of members present in the Legislative Council had supported the legislation to repeal. In the absence of the required absolute majority, the earlier legislation could not be repealed. It is a striking feature of the state constitutions that if there is a simple majority in both Houses, or in Queensland’s only House, Parliament can at any time impose entrenched manner and form mechanisms binding future

Parliaments of the state. Democracy can mean different things to different people. However, under s 6 of the Australia Act, manner and form provisions can only be validly attached to laws dealing with the ‘constitution, powers or procedure of the Parliament’. Accordingly, any attempt to entrench substantive legal rules (as opposed to rules relating to the make-up and operation of the Parliament) will be ineffective.15

Bicameral Parliaments Each of the states except Queensland has a bicameral Parliament. In 1922 the Queensland Parliament amended its constitution by abolishing the Legislative Council. Queensland is the only state in which moves to abolish the Upper House have succeeded. The government achieved success with this abolition by appointing new members to the Council who agreed to pass the legislation by which it was abolished. Each Upper House of the states has the power to block bills, but while in all states threats have occasionally been made to block supply, it has only occurred in South Australia, Victoria and Tasmania. The Constitution Acts of New South Wales and Victoria16 contain procedures for dealing with deadlocks over appropriation bills for the ordinary annual services of government and for deadlocks between the Houses in relation to ordinary bills originating in the Assembly. South Australia’s Constitution Act17 provides machinery for settling deadlocks without distinction between [page 386] ordinary bills and appropriation bills. No provision is made for settling deadlocks in the constitutions of Tasmania and Western Australia.18

Restrictions arising from the federal separation of judicial power: Kable In 1996 in Kable v Director of Public Prosecutions (NSW),19 the High Court held

that the states could not vest powers in their courts which were incompatible with the exercise of federal judicial power vested in them. The Community Protection Act 1994 (NSW) empowered the New South Wales Supreme Court to make an order for the detention of a named individual in prison for a specified period if it was satisfied on reasonable grounds that he was more likely than not to commit a serious act of violence and that it was appropriate for the protection of the community that he be held in custody for up to a further six months. In a four to two decision, the court held that the exercise of jurisdiction under the Act was incompatible with the integrity, independence and impartiality of the Supreme Court in its exercise of federal jurisdiction vested in it under Ch III of the Constitution. For a time, it appeared that Kable might be an isolated case. The few significant cases that examined Kable distinguished it. In North Australian Aboriginal Legal Aid Service Inc v Bradley in 2004, a joint judgment of six judges restated the Kable principle: It is implicit in the terms of Ch III of the Constitution, and necessary for the preservation of that structure, that a court capable of exercising the judicial power of the Commonwealth be and appear to be an independent and impartial tribunal.20

The judges used this new formulation, however, to dismiss a Kable challenge to unusual arrangements made for the appointment of the Chief Magistrate [page 387] of the Northern Territory. In Baker v R21 later that same year, legislation which severely restricted the availability of parole to 10 known prisoners was upheld on the basis that the role of the court under the law was analogous to passing sentence for a criminal offence. In Fardon v Attorney-General (Qld), handed down on the same day as Baker, the court upheld legislation providing for the extended detention of a child sex offender, stressing that the decision in Kable arose because of interferences with the judicial process of the court which were not present on the facts of Fardon.22 In Baker, Kirby J (the only judge to dissent in this case as well as Fardon) asked whether Kable was destined to be ‘a

constitutional guard-dog that would bark but once’.23 Subsequent cases where the High Court engaged in strained interpretations of legislation to avoid Kable issues suggested that Kirby J might be right.24 Since 2009, however, the High Court has applied Kable in numerous cases dealing with encroachments on the independence and impartiality of state courts. This body of decisions now establishes certain minimum requirements that state courts must not be deprived of by legislation. Judicial process The results in Baker and Fardon suggested that the key feature leading to the invalidation of the Community Protection Act 1994 (NSW) in Kable was the incursions by the legislation into traditional judicial process. This view could also be supported by the decision of the Queensland Court of Appeal in Re Criminal Proceeds Confiscation Act 2002.25 There, the state was effectively given the ability to direct the court to hear a matter ex parte (that is, without one of the interested parties being aware of the hearing or able to attend it), and the court held that the law was invalid because it breached the Kable principle. [page 388] The first High Court decision to invalidate state legislation on the basis of the Kable principle (after Kable in 1996) was the 2009 decision in International Finance Trust Co Ltd v New South Wales Crime Commission.26 The challenged legislation was very similar to Re Criminal Proceeds Confiscation Act 2002 in giving the executive the power to direct an ex parte hearing. The High Court held the legislation invalid — because while ex parte hearings might be conducted whenever they were appropriate according to law, to give the executive the power to direct the court as to the exercise of its jurisdiction breached the Kable principle. In the 2014 decision in Attorney-General (NT) v Emmerson, six judges explained why maintaining traditional judicial process was essential:

[I]ndependence and institutional impartiality mark a court apart from other decision-making bodies. A legislature which imposes a … process on a court, whereby it is essentially directed or required to implement a political decision or a government policy without following ordinary judicial processes, deprives that court of its defining independence and institutional impartiality.27

In Emmerson, legislation providing for the Supreme Court to order the forfeiture of property belonging to persons convicted of three or more serious drug offences during a 10-year period was held to be valid. The High Court stressed some of the features of a traditional judicial process that were unaffected by the legislation: the case was heard in open court, the parties were able to participate personally or through legal representatives, and the court would deliver reasons. Limited departures from traditional judicial process are permitted, for example, where particularly sensitive information relied on by police may not be made available to an accused.28 However, as a general rule a departure from traditional judicial process, such [page 389] as removing the duty of a court to give reasons for a particular decision, will lead to invalidity.29 Independence As the court’s statement in NAALAS v Bradley (quoted above) makes clear, independence and impartiality are the touchstone of the Kable principle. In Kable itself, a perceived lack of independence arose from the fact that the Supreme Court was placed in a situation where it may have appeared to be unable to resist the obvious desire by the executive to lock up Kable. In 2010 in South Australia v Totani,30 the Serious and Organised Crime (Control) Act 2008 (SA) was challenged on the basis that it effectively required the Magistrates Court to make a control order against a person if the Attorney-General made a particular finding about an organisation of which he or she was a member. The High Court held the legislation invalid, explaining that placing a court in a position where it appeared to be at the whim of the Attorney-General was in breach of the Kable principle because it impaired the independence of the court.

A similar problem of lack of independence arose in Queensland in AttorneyGeneral (Qld) v Lawrence in 2013,31 a case which concerned the plaintiff in Fardon. Fearing that Fardon might be released by a court under the sex offender legislation unsuccessfully challenged in Fardon, the Parliament granted the Attorney-General a new power to order that a person be detained — which had the effect of giving the Attorney-General a veto power if he or she were unsuccessful in court action to prevent the release of a sex offender. The Queensland Court of Appeal held this legislation invalid because it would impair public perceptions of the independence of the court by creating the appearance that the court’s decisions were of little consequence and were subject to being overruled by the Attorney-General. [page 390] In Kable it was held that the right of appeal from the decisions of the state Supreme Courts to the High Court under s 73(ii) of the Constitution required the continued existence of those courts. In 2010 in Kirk v Industrial Relations Commission (NSW),32 the High Court held further that the Supreme Courts of the states must retain at least a limited jurisdiction to review decisions of the executive government in order to answer the constitutional description of a Supreme Court of a state. As a result, if a state Parliament attempts to shield the conduct of the state executive from review by the Supreme Court, this will also breach the Kable principle.

Other limitations on state legislative powers Earlier chapters have considered several restrictions on state legislative power contained in the Commonwealth Constitution. Under s 90 states cannot levy customs and excise duties. Like the Commonwealth, they cannot infringe the freedom of interstate trade, commerce and intercourse under s 92. They cannot raise or maintain a naval or military force without the consent of the Commonwealth Parliament, or impose a tax on Commonwealth property (s 114). They cannot coin money nor make anything but gold and silver coin a

legal tender in payment of debts (s 115) nor discriminate against residents of other states (s 117). Section 52 gives the Commonwealth Parliament exclusive power to make laws with respect to the seat of government and to places acquired by the Commonwealth. States cannot abolish their Supreme Courts, which are specifically recognised in s 73. Most importantly, as described in Chapter 27, under s 109 of the Constitution, if a state law is inconsistent with the law of the Commonwealth, it is invalid to the extent of the inconsistency. In 1992, for the first time, the High Court held in a majority decision that there was a freedom of political communication implied in the Commonwealth Constitution, arising from the principles of representative and responsible government to be found in ss 7, 24, 28, 53 and 64. In later [page 391] cases, the High Court recognised that the implied freedom applicable to the Commonwealth also constituted a similar restriction on state power.33 The cases are discussed in Chapter 32. In 1996 in McGinty v Western Australia,34 the plaintiffs challenged the validity of ss 6 and 73(2) of Western Australia’s Constitution Act 1889 and of two electoral Acts, the effect of which was that a metropolitan electorate could have up to three times as many electors as the smallest rural electorate. The plaintiffs argued that electors’ votes had to be of equal value and that the constitutional implication of representative government or representative democracy requires one vote to have one value. The court held that neither the federal nor the state constitution gave rise to an implication that electors enjoyed a guarantee of one vote, one value. The court has since recognised an implied right to political participation at the federal level, which is examined in Chapter 32. In the abstract, the states enjoy almost unlimited legislative powers. However, in practice, the ability of states to legislate is limited not merely by the express or implied limitations touched on in this chapter, but also by the financial dependence of the states on Commonwealth money which often comes

with strings attached. It is also limited by the primacy given to valid Commonwealth laws in case of inconsistency, which Chapter 27 examines.

1. 2. 3. 4. 5. 6. 7. 8. 9. 10. 11. 12. 13. 14. 15. 16. 17. 18. 19. 20. 21. 22. 23. 24.

25. 26. 27. 28. 29. 30.

See Victoria v Commonwealth (1971) 122 CLR 353 at 371–2; [1971] ALR 449 at 456–7 per Barwick CJ (Payroll Tax case). Commonwealth v Cigamatic Pty Ltd (in liq) (1962) 108 CLR 372; [1963] ALR 304. (1988) 166 CLR 1; 82 ALR 43. Section 2 of the Australia Act 1986 (Cth) adopts the ‘peace, order and good government’ version. Bonser v La Macchia (1969) 122 CLR 177 at 189 per Barwick CJ, 224–5, 228 per Windeyer J; [1969] ALR 741 at 747 per Barwick CJ, 772, 775 per Windeyer J. Jumbunna Coal Mine NL v Victorian Coal Miners’ Association (1908) 6 CLR 309. (1976) 135 CLR 507; 9 ALR 289. New South Wales v Commonwealth (1975) 135 CLR 337; 8 ALR 1. For a discussion on the question see Union Steamship Co of Australia Pty Ltd v King (1988) 166 CLR 1 at 14; 82 ALR 43 at 50. (2002) 211 CLR 1; 189 ALR 161; [2002] HCA 27. (2002) 211 CLR 1; 189 ALR 161; [2002] HCA 27 at [16]. (1931) 44 CLR 394; [1931] ALR 101. (1932) 47 CLR 97; [1932] AC 526. (2003) 217 CLR 545; 202 ALR 233; [2003] HCA 67. West Lakes Ltd v South Australia (1980) 25 SASR 389. Constitution Act 1902 (NSW) s 5A; Constitution Act 1975 (Vic) s 65. Constitution Act 1934 (SA) s 41. For detailed descriptions of the deadlock situation, see G Carney, The Constitutional Systems of the Australian States and Territories, Cambridge University Press, Cambridge, 2006, pp 89–94. (1996) 189 CLR 51; 138 ALR 577 (Kable). (2004) 218 CLR 146; 206 ALR 315; [2004] HCA 31 at [29] (NAALAS v Bradley). (2004) 223 CLR 513; 210 ALR 1; [2004] HCA 45 (Baker). Fardon v Attorney-General (Qld) (2004) 223 CLR 575; 210 ALR 50; [2004] HCA 46 (Fardon). (2004) 223 CLR 513; 210 ALR 1; [2004] HCA 45 at [54]. Gypsy Jokers Motorcycle Club Inc v Commissioner of Police (2008) 234 CLR 532; 242 ALR 191; [2008] HCA 4; K-Generation Pty Ltd v Liquor Licensing Court (2009) 237 CLR 501; 252 ALR 471; [2009] HCA 4. [2004] 1 Qd R 40; [2003] QCA 249. (2009) 240 CLR 319; 261 ALR 220; [2009] HCA 49. (2014) 253 CLR 393; 307 ALR 174; [2014] HCA 13 at [44] per French CJ, Hayne, Crennan, Kiefel, Bell and Keane JJ (Emmerson). Assistant Commissioner Condon v Pompano Pty Ltd (2013) 252 CLR 38; 295 ALR 638; [2013] HCA 7. Wainohu v New South Wales (2011) 243 CLR 181; 278 ALR 1; [2011] HCA 24. (2010) 242 CLR 1; 271 ALR 662; [2010] HCA 39.

31. 32. 33.

34.

[2014] 2 Qd R 504; (2013) 306 ALR 281; [2013] QCA 364. (2010) 239 CLR 531; 262 ALR 569; [2010] HCA 1. Theophanous v Herald and Weekly Times Ltd (1994) 182 CLR 104; 124 ALR 1; Stephens v Western Australian Newspapers Ltd (1994) 182 CLR 211; 124 ALR 80; Unions New South Wales v New South Wales (2013) 252 CLR 530; 304 ALR 266; [2013] HCA 58. (1996) 186 CLR 140; 134 ALR 289.

[page 393]

Chapter 27

Inconsistency Between Laws of the States and the Commonwealth 109. When a law of a State is inconsistent with a law of the Commonwealth, the latter shall prevail, and the former shall, to the extent of the inconsistency, be invalid.

Section 109 was inserted in the Constitution almost without debate. If the position were otherwise and the exercise of a Commonwealth legislative power were to be at the mercy of state legislative power, the Federal Parliament would be unable to discharge its functions effectively as the centripetal force in the federation, since most of its legislative powers are not exclusive to it but are concurrent with state legislative power. The Federal Parliament can therefore avail itself of its own choosing when to claim supremacy of one of its laws over a competing state law and it has frequently legislated accordingly. Several underlying purposes have been attributed to the section. Chief Justice Gibbs considered that it was not only critical in regulating the relationship between the Commonwealth and state Parliaments, but of great importance for the ordinary citizen who is entitled to know which of two inconsistent laws to follow.1 Similarly, Deane J considered that s 109 was not concerned merely to resolve disputes between the Commonwealth and the states as to the validity of their competing claims to govern, but served the equally important function of protecting the individual from the [page 394]

injustice of being subjected to the requirements of valid and inconsistent laws of the Commonwealth and state Parliaments on the same subject.2 Laws of the Commonwealth include Acts of Parliament but also subordinate laws such as regulations made under an Act.3 However, the section only upholds laws for which a statutory basis exists, not the ordinary common law that formed the basis of each colonial legal system, and continued after Federation as law of the states and Commonwealth. In any case, since the abolition of appeals to the Privy Council, there has been only one common law in Australia, as the High Court held in Lange v Australian Broadcasting Corporation4 — the common law as declared by the High Court as the final court of appeal.5 The valid statute law of a state prevails in that state over common law in the event of inconsistency. To override a state law, a Commonwealth law has to be held to be valid in the first place and all Commonwealth legislative powers have to be read subject to the Constitution. For example if, contrary to s 116 of the Constitution, the Commonwealth were to make a law prohibiting the free exercise of a particular religion lawfully carried on within a state, s 109 would not come into play. Again, under the doctrine established in the State Banking case,6 a Commonwealth law impairing the capacity of states to function as governments would not be valid and s 109 would be of no avail.7 [page 395] While a state law inconsistent with a Commonwealth law will be invalid, it does not mean that the state law disappears from the statute books. It remains in suspension so that if the Commonwealth law creating the inconsistency is repealed, the state law will resume operation unless it has been repealed in the meantime. The Commonwealth cannot invoke s 109 to prevent a state Parliament from exercising any of its constitutional powers.8 The principle applies to displace state laws whether or not there is a direct conflict. By way of example, the states previously had their own laws dealing with divorce and they were far from uniform. The Commonwealth Parliament has power under s 51(xxii) to legislate with respect to divorce and matrimonial

causes and in relation to them parental rights and the custody and guardianship of infants. It also has a specific power under para (xxi) with respect to marriage. It was not until 1959 that the Commonwealth passed the Matrimonial Causes Act which created one uniform law for divorce and related issues such as property, maintenance, parental rights and access. The Act displaced all state laws on the same matters by virtue of a clear intention to cover the field including not only divorce but such related issues as property, maintenance and parental rights. The Marriage Act 1961 (Cth) deals exhaustively with eligibility to marry and the solemnities associated with marriage. One provision states that the Act should not be taken to exclude the operation of a law of a state or territory so far as it relates to the registration of marriages. By implication, Parliament confirmed in effect that otherwise state marriage laws no longer apply. There is no shortage of cases dealing with the meaning and application of s 109. They are likely to continue to occur as long as the Commonwealth exploits its constitutional powers and intervenes more in areas that were once thought to be exclusive preserves of the states. Most of the cases can be divided into three groups. The first deals with direct conflict between the two sets of laws, as for example where it is impossible to obey both. The [page 396] second group arises where a Commonwealth law confers an entitlement or privilege so that the state law if valid would alter, detract from or impair the Commonwealth law.9 Although this is a different test of inconsistency, the issue in this second group of cases really amounts to a direct conflict between two laws, as in the first group. A third test emerged later, and is the product of judicial exposition since about 1920, in the third group of cases. It was foreshadowed by Isaacs J in Clyde Engineering Co v Cowburn: If … a competent legislature expressly or impliedly evinces its intention to cover the whole field, that is a conclusive test of inconsistency where another legislature assumes to enter to any extent upon the same field.10

This test became known as the ‘cover the field test’ and was described by Dixon J in the following terms.11 Moreover, if it appears from the terms, the nature or the subject matter of a federal enactment that it was intended as a complete statement of the law governing a particular matter or set of rights and duties, then for a State law to regulate or apply to the same matter or relation is regarded as a detraction from the full operation of the Commonwealth law and so as inconsistent.12

Direct conflict — where obedience to both sets of laws is not possible An early case was R v Brisbane Licensing Court; Ex parte Danielle in 1920.13 The Commonwealth Electoral Act 1918 (Cth) prohibited the holding of [page 397] a referendum or vote of the electors of any state on a polling day for an election of senators or a general election for the House of Representatives. A local option vote was taken in the Brisbane licensing district on the date of a federal poll to determine the number of liquor licensees in the district. A unanimous High Court consisting of Knox CJ, Isaacs, Higgins, Gavan Duffy, Powers, Rich and Starke JJ held that the local option poll was illegal and of no effect. A more recent example is Mabo v Queensland, decided in 1988.14 The Meriam people living on Murray Island off the coast of Queensland sued Queensland claiming that its Queensland Coast Islands Declaratory Act 1985 (Qld) had purported to extinguish their land rights which were based upon local custom and traditional native title. The High Court held that if native title could be established in respect of the lands they claimed, the state law extinguished native title and was inconsistent with the Racial Discrimination Act 1975 (Cth), which prohibited racial discrimination and interference with property rights on racial grounds. The court found that the Queensland Act was therefore invalid to the extent of its inconsistency with the Commonwealth Racial Discrimination Act.

Altering, impairing or detracting from the operation of a Commonwealth law In Cowburn’s case in 1926,15 the Forty-four Hours Week Act 1925 (NSW) provided among other things that there should be a 44-hour working week, exceeding which employers had to pay overtime rates. A federal award also applicable to the parties provided for a 48-hour working week at a lower rate of pay than provided by the state law including overtime. Cowburn (and other members of the union) claimed that they should be paid in accordance with the state Act, arguing that the company as an employer could obey both the Commonwealth award which had the force of law [page 398] and the state law by paying the amount due under the state law. The High Court held that capacity to obey was not the test of the inconsistency of the two laws. The company was entitled to pay at rates specified in the Commonwealth award, and the state law was invalid. In 1943 in Colvin v Bradley Bros Pty Ltd,16 an award under the Conciliation and Arbitration Act 1904 (Cth) entitled the company to employ women in industries covered by the award. Among other things, the company employed them on milling machines. However the Factories and Shops Act 1912 (NSW) prohibited the employment of women on milling machines. After a prosecution of the company under the state Act was dismissed, there was an appeal to the High Court. The court held that the state law was directly inconsistent with a Commonwealth award by prohibiting employment of women on work permitted by the federal law. In circumstances similar to those of Cowburn’s case, inconsistency was also found in Blackley v Devondale Cream (Vic) Pty Ltd in 1968.17 Blackley, a state factories and shops inspector, claimed that the company had failed to pay an employee the minimum wage owing to him under a determination of the State Wages Board of Victoria. A federal award binding the company entitled it to pay

its employees at an award rate which was less than the state determination. The court found for the employer. Barwick CJ described the case as one of direct collision: ‘Obedience to the one, the award, is disobedience to the other, the determination. Payment by the respondent of wages conforming to the award involved it in disobedience of the State provisions.’18 In 1986 in Australian Mutual Provident Society v Goulden,19 the Life Insurance Act 1945 (Cth) dealt exhaustively with the interests of policy holders by allowing registered life insurance companies to classify risks and fix premiums according to their own judgment based on actuarial advice [page 399] and prudent insurance practice. The Anti-Discrimination Act 1977 (NSW) made it unlawful to discriminate against persons on the ground of physical impairment in deciding whether to accept a proposal or the terms which will apply to insurance cover. The High Court held that the state Act was invalid under s 109 for inconsistency because it would have altered, impaired or detracted from the essential legislative scheme of control of the Commonwealth Act. In the foregoing cases it was assumed that the right was intended to be absolute. If a right is not unqualified, the state law may not be displaced. In Australian Transport Industries (Operations) Pty Ltd v Wardley in 1980,20 Ansett dismissed a female pilot pursuant to an Airline Pilots’ Agreement which had the force of an award under the Conciliation and Arbitration Act 1904 (Cth). The company’s right was not expressed to be qualified in any way. However, under the Equal Opportunity Act 1977 (Vic) employers were prohibited from engaging in sex discrimination and the Equal Opportunity Board of Victoria ordered Ansett to employ Wardley. The matter came before the High Court, where a majority of the court decided that the provisions of the Victorian Act could operate concurrently with the federal provisions. According to Stephen J, the Airline Pilots Agreement 1978 was not to be read as if creating a partial vacuum within which the relationships between Ansett and its pilots lay wholly

withdrawn from the operation of the general laws of the land applicable to other members of the community. According to Mason J, also in the majority, the agreement did not confer on Ansett a substantive right of dismissal but merely assumed the right of dismissal for which the general law provided.

‘Cover the field’ test The ‘cover the field’ test has been an important weapon in ensuring the supremacy of Commonwealth laws. The example was given earlier in this chapter of the Commonwealth’s Matrimonial Causes Act 1959, which [page 400] created one uniform law for divorce and related issues such as property, maintenance, parental rights and access. The Act displaced all state laws on those matters by virtue of a clear intention to cover the field. The Matrimonial Causes Act was superseded in that role by the Family Law Act 1975 (Cth). Many Commonwealth Acts are not concerned with the possible inconsistency of state laws because they have little if any effect on state laws. The extent to which a Commonwealth law affects a state may vary from state to state but it is not regarded as being the task of the Commonwealth to take account of the position in a state in the drafting of its laws. The ‘cover the field’ test leaves to the court the sometimes difficult task of ascertaining whether an intention to cover the field can be discerned from Commonwealth legislation. In Wenn v Attorney-General (Vic),21 the Discharged Servicemen’s Preference Act 1943 (Vic) contained provisions giving preference in employment and promotion to former members of the armed forces. The Re-establishment and Employment Act 1945 (Cth) also provided for preference in employment to exservicemen but it did not explicitly require that ex-servicemen should receive preference in promotions. Wenn was a member of the Victorian public service who would have been entitled to be promoted to be a senior warder at Pentridge prison, but the state Act required the Public Service Board of Victoria to promote a discharged serviceman in priority to him. Although the federal Act

did not require preference for ex-servicemen in promotions, the High Court held that its provisions dealing extensively and in detail with employment of discharged members of the forces indicated an intention to deal with the subject exhaustively to the exclusion of state laws, even laws that dealt explicitly with promotions in the state public service. In an earlier case, Victoria v Commonwealth,22 the court considered whether a section of the Marine Act 1928 (Vic) was inconsistent with s 329 of the Navigation Act 1913 (Cth). The Victorian Act authorised [page 401] state officials to remove a ship sunk in a Victorian port and not removed by the owner, at the owner’s expense. The federal Act made similar provision, at the instance of a Commonwealth minister, for any ship sunk on or near the coast of Australia including ships in waters used for international or interstate trade. In 1937 after a collision with another ship, the steamship Kakariki sank in Port Phillip Bay where it constituted an obstruction to shipping. Uncertain whether it could lawfully remove the wreck and recover the cost from the owner in view of s 329 of the federal Navigation Act, Victoria instituted proceedings against the Commonwealth. The Commonwealth had not indicated any intention to intervene under the Navigation Act. The High Court held unanimously that there was no inconsistency between the two sets of laws. In the principal judgment, Dixon J explained that there was nothing in the language of the federal Act in its nature or subject matter to suggest that the Commonwealth should have exclusive power of determining whether or not the owner ought to remove it or for treating the section as intending to do more than confer a concurrent or parallel power to enforce the removal of wrecks. Nor did the state law alter, impair or detract from the operation of the Commonwealth law.23 In 1983 in Viskauskas v Niland,24 the question was whether the AntiDiscrimination Act 1977 (NSW) was inconsistent with the Racial Discrimination Act 1975 (Cth). The state Act prohibited discrimination in various situations including the provision of goods and services. The

Commonwealth Act, which gave effect to Australia’s obligations under an international convention, prohibited racial discrimination in similar situations, but there were some variations. For example, the Commonwealth Act provided different machinery for enforcement of its provisions. [page 402] The High Court acknowledged that it was possible to obey both laws but held unanimously that it appeared from both the terms and the subject matter of the Commonwealth law that it was a complete statement of the law for Australia relating to racial discrimination. There was a sequel to the Viskauskas decision. Shortly afterwards, the Commonwealth legislation was amended to insert s 6A(1) which provides that the Racial Discrimination Act ‘is not intended, and shall be deemed never to have been intended, to exclude or limit the operation of a law of a State or Territory’. In 1984 in University of Wollongong v Metwally,25 the university raised the question whether the retrospective operation of the amending section of the Commonwealth Act was valid. In a four to three decision, the court held that it was not.26 The majority view was that when a state law was inconsistent with a Commonwealth law, the invalidity of the state law was brought about by s 109 of the Constitution and the Commonwealth Parliament could not enact a law to override the operation of the Constitution. It was not within the power of Parliament to declare that an Act did not bring s 109 into operation, when it in fact did so.27 The minority view was that the inconsistency held to exist in Viskauskas accorded with the intention of the Parliament and that it was within Parliament’s power to enact retrospective legislation. In so doing, the effect was not to contradict s 109 but to remove the inconsistency which attracted the operation of that section. The majority decision has attracted considerable criticism28 but it represents the law at least for the time being. [page 403]

What is the field? In Viskauskas, the court acknowledged that it could be difficult to ascertain the precise limits of the field that the Commonwealth legislation revealed an intention to cover. The answer may require a detailed analysis of the scope of both the state and the Commonwealth laws. Such a question arose in 1965 in Airlines of New South Wales Pty Ltd v New South Wales (No 2),29 the Second Airlines case. The plaintiff airline held an airline licence issued by the Director-General of Civil Aviation under the Air Navigations Regulations 1947 (Cth), to operate an intrastate public transport air service. In deciding whether to issue a licence, the Regulations enjoined the Director-General to have regard to the ‘safety, regularity and efficiency of air navigation and to no other matters’. The airline had also held a licence to conduct its air service under the Air Transport Act 1965 (NSW). The Commissioner for Motor Transport for New South Wales cancelled the plaintiff’s licence for the service it operated between Sydney and Dubbo. Apart from challenging the validity of the federal Regulations, the airline claimed that the state licensing legislation was invalid because of inconsistency with the federal Regulations. The challenge failed on the ground that the federal licensing was concerned only with questions of safety, regularity and efficiency. The state licensing law required additional considerations to be taken into account not related to air safety, including the coordination of the various forms of transport within the state and the use of aircraft of a specified type, and the field covered by the federal law did not therefore exclude the state law. A question of defining the relevant field arose in 2013 in Commonwealth v Australian Capital Territory (Same Sex Marriage case).30 The question for the court was whether the Marriage Act 1961 (Cth) covered the field of marriage, and thus excluded the Marriage Equality (Same Sex) Act 2013 (ACT) under a provision resembling s 109.31 The court held that it did, [page 404] and invalidated the ACT law. In an unexpected ruling, the court held that the

Commonwealth legislative power with respect to marriage extended to same-sex marriage, but that the detailed provisions in the Marriage Act 1961 (Cth) left no room for state laws on the same topic: ‘[T]he Marriage Act … makes the provisions which it does about marriage as a comprehensive and exhaustive statement of the law with respect to the creation and recognition of the legal status of marriage.’32 Express intention not to cover the field On occasions the Commonwealth and the states may legislate in the same field with the intention of the Commonwealth being that it should not exclude state laws. In 1977 in Re Credit Tribunal; Ex parte General Motors Acceptance Corporation Australia (GMAC case),33 the Corporation claimed that provisions of South Australian consumer credit legislation were inconsistent with the Trade Practices Act 1974 (Cth). A provision of the federal Act stated that it was ‘not intended to exclude or limit the concurrent operation of any law of a State or Territory’. The High Court held unanimously that the state legislation could operate concurrently since it was not directly inconsistent. Five of the six judges took the opportunity to point out that a provision in a Commonwealth statute specifically outlawing a state law, or stating that the Commonwealth law was not intended to be exhaustive, was not necessarily conclusive. The language of the Commonwealth law had to be construed. Mason J, with whom four of the other five judges expressly agreed, stated: [A]lthough a provision in a Commonwealth statute which attempts to deny operational validity to a State law cannot of its own force achieve that object, it may nevertheless validly evince an intention on the part of the statute to make exhaustive or exclusive provision on the subject with which it deals, thereby bringing s 109 into play. Equally a Commonwealth law may provide that it is not intended to make exhaustive or exclusive

[page 405] provision with respect to the subject with which it deals, thereby enabling State laws, not inconsistent with Commonwealth law, to have an operation. Here again the Commonwealth law does not of its own force give State law a valid operation. All that it does is to make it clear that the Commonwealth law is not intended to cover the field, thereby leaving room for the operation of

such State laws as do not conflict with Commonwealth law. It is, of course, by now well established that a provision in a Commonwealth statute evincing an intention that the statute is not intended to cover the field cannot avoid or eliminate a case of direct inconsistency or collision, of the kind which arises, for example, when Commonwealth and State laws make contradictory provision upon the same topic, making it impossible for both laws to be obeyed.34

The effectiveness of an express declaration that a Commonwealth law does not intend to cover the field was illustrated in two Victorian criminal cases. In 2010 in Dickson v R,35 s 109 was successfully invoked to invalidate a provision of the Crimes Act 1958 (Vic) on the basis that the property offence it created was in a field covered by a provision of the Criminal Code (Cth). The Commonwealth offence differed in important respects to the Victorian offence, leading the High Court to conclude that the two were inconsistent because the Commonwealth law chose to criminalise only part of what the Victorian law made illegal, impliedly intending to exclude from criminality other conduct purportedly covered by the Victorian law. An important part of the reasoning in this case was that, while other parts of the Criminal Code expressly indicated an intention not to cover the field, the relevant provisions in this case did not do so. In Momcilovic v R,36 decided the following year, in a similar situation of two related offences, the High Court gave effect to an express statement in the Criminal Code that it did not intend to cover the field in a similar situation. Gummow J in fact emphasised that an express statement that [page 406] the field is not covered would create only ‘a greater likelihood of a [valid] concurrent operation of the two laws in question’.37 Nonetheless, by a margin of six to one the court held that there was no s 109 inconsistency in this case, illustrating the potential effectiveness of an express statement of intention not to cover the field. Covering the field further illustrated Elaborate, extensive and detailed provisions in a federal Act may indicate an

implied intention to cover the field but there can be instances where this is not essential. In 1977 in Australian Broadcasting Commission v Industrial Court of South Australia,38 the Australian Broadcasting Commission (ABC) contested the application to it of state legislation empowering the Industrial Court of South Australia to deal with unfair dismissal of employees, including temporary employees. The Broadcasting and Television Act 1942 (Cth) provided for the employment by the ABC of regular employees and temporary employees. It provided in detail for the transfer, promotion, retirement and dismissal of its regular employees, but those provisions did not apply to temporary employees. The Full Court of the High Court held that the Commonwealth Act covered the field of employment to the exclusion of the state Act, even though it contained no specific provisions about temporary employees. Mason J explained that the absence of detailed provisions applying to temporary employees was not an indication that it was contemplated that other laws such as the state law would apply to them, but rather that the employer had an unqualified authority to make decisions affecting their employment and the termination of their services in contrast to the rights and privileges of officers in a permanent service analogous to a public service.39 [page 407] Statutory intention as the ultimate basis of inconsistency Geoffrey Lindell40 has questioned whether any of the recognised tests of inconsistency which the High Court has applied go beyond merely expressing conclusions about the existence of inconsistency. Professor Lindell considered, in particular, that the ‘alter, impair or detract’ test apparent to some in Australian Mutual Provident Society v Goulden41 and other decisions should not be seen as an independent test for determining inconsistency, but that those words should be understood only as a synonym for inconsistency.42 He acknowledged the artificiality of attributing any intention to Parliament by following the established rules for construing the language used in Commonwealth legislation under challenge. Professor Lindell noted, however, that there was widespread awareness amongst individual judges that the alternative of attempting to

ascertain the actual collective mental state of members of the legislative body would be an unrewarding task. He concluded that almost inevitably we are driven back to the rules of statutory construction and the modern emphasis on purpose, not only to determine the scope and nature of the juristic rights and obligations created by the legislation but also whether those rights and obligations were to operate in disregard of state law. In his view this involves a large element of intuition and to understand and apply the rules of statutory construction is essential, since they make up the vocabulary lawyers and judges use to arrive at a meaning.

Section 109 and laws of Commonwealth territories Section 109 is silent on the status of laws passed by the Commonwealth territories which have achieved self-government by Commonwealth laws passed under s 122 of the Constitution — that is, the Northern Territory, the [page 408] Australian Capital Territory and (for a time, before its withdrawal) Norfolk Island. As the superior legislative institution, the Commonwealth may restrict territorial legislative powers as it thinks fit. The Federal Parliament could, for example, enact a law stating that s 109 shall apply to a territory as if that section applied to the territories as well as the states. In fact, the Commonwealth has legislated similar (but not identical) rules to s 109 in the self-government Acts of the territories. In 1999 in Northern Territory v GPAO,43 the High Court considered the circumstances in which a Commonwealth law not expressly related to the territories would override a conflicting territorial law that might be passed by those territories which had independent legislatures. Three judges stated in effect that where a Commonwealth law impliedly covered a subject exhaustively, it was to be expected also that the field it occupied would be covered with respect to the territories. If the two laws made contradictory provision or one law detracted from the other, the position would be the same in relation to the territory as it

would be under s 109 in relation to a state. Their observations seemed to suggest that where the Federal Parliament has granted self-government to a territory, it is implied in the grant that, except to the extent otherwise provided in the relevant self-government Act,44 a territorial law will be invalid for inconsistency. Clarification of the exact position awaits further decisions, but doubtless legislation of the Commonwealth Parliament will continue to assume that the tests of inconsistency under s 109 also apply to the territories.

1. 2. 3. 4. 5. 6. 7.

8.

9. 10.

11.

12.

13. 14.

University of Wollongong v Metwally (1984) 158 CLR 447 at 458; 56 ALR 1 at 7. University of Wollongong v Metwally (1984) 158 CLR 447 at 477; 56 ALR 1 at 21. Judgments to this effect appear in various cases, for example, O’Sullivan v Noarlunga Meat Ltd (1954) 92 CLR 565; [1955] ALR 82. (1997) 189 CLR 520; 145 ALR 96. See also Lipohar v R (1999) 200 CLR 485; 168 ALR 8; John Pfeiffer Pty Ltd v Rogerson (2000) 203 CLR 503; 172 ALR 625. Melbourne Corporation v Commonwealth (1947) 74 CLR 31; [1947] ALR 377, discussed in Chapter 13. In Bayside City Council v Telstra Corporation Ltd (2004) 216 CLR 595; 206 ALR 1; [2004] HCA 19, Telstra claimed that the charges imposed on it under various Victorian Acts as it installed broadband cable networks were unlawful because the Telecommunications Act 1997 (Cth) exempted it from such charges. It was argued for Victoria that the Commonwealth legislation granting the exemption placed a special burden on the state which threatened its capacity to function as a government contrary to the Melbourne Corporation principle. The High Court did not agree and held that the federal Act was a valid exercise of the power vested in the Commonwealth under s 51(v) to make laws regarding various communications services. Butler v Attorney-General (Vic) (1961) 106 CLR 268; [1961] ALR 650; Gerhardy v Brown (1985) 159 CLR 70 at 81 per Gibbs CJ, at 121 per Brennan J; 57 ALR 472 at 479 per Gibbs CJ, at 510 per Brennan J. Telstra Corporation Ltd v Worthing (1999) 197 CLR 61; 161 ALR 489; [1999] HCA 12. (1926) 37 CLR 466 at 489; 32 ALR 214 at 222 (Cowburn’s case). Isaacs J stated that this was the opinion which he and Griffith CJ expressed in Australian Boot Trade Employees Federation v Whybrow & Co (1910) 11 CLR 311. Victoria v Commonwealth (1937) 58 CLR 618 at 630; [1938] ALR 97 at 100. This was a case about liability to pay workers’ compensation in which the Commonwealth legislation was held to oust state legislation in the same field. Quoted by the court in Telstra Corporation Ltd v Worthing (1999) 197 CLR 61; 161 ALR 489; [1999] HCA 12 at [28]. As early as 1930, Dixon J subscribed to the ‘cover the field test’ in Ex parte Mclean (1930) 43 CLR 472 at 483; 36 ALR 377 at 380. (1920) 28 CLR 23; 26 ALR 105. (1988) 166 CLR 186; 83 ALR 14.

15. 16. 17. 18. 19. 20. 21. 22. 23.

24. 25.

26. 27. 28. 29. 30. 31. 32. 33. 34. 35. 36. 37. 38. 39.

40. 41. 42. 43. 44.

(1926) 37 CLR 466; 32 ALR 214. (1943) 68 CLR 151; [1944] ALR 35. (1968) 117 CLR 253; [1968] ALR 307. (1968) 117 CLR 253 at 258–9; [1968] ALR 307 at 310. (1986) 160 CLR 330; 65 ALR 637. (1980) 142 CLR 237; 28 ALR 449. (1948) 77 CLR 84; [1948] 2 ALR 293. (1937) 58 CLR 618; [1938] ALR 97. Dixon J, in a characteristic refinement, referred to the possibility that there might be an inconsistency if simultaneous attempts by Commonwealth and state authorities to remove the same wreck were possible. His Honour’s answer, at 631, was a follows: ‘But that means, not that the Federal enactment is an exhaustive statement of what power to compel the removal of wrecks shall exist, but it confers a power to remove wrecks the exercise of which is intended to be exclusive.’ (1983) 153 CLR 280; 47 ALR 32 (Viskauskas). (1984) 158 CLR 447; 56 ALR 1. Metwally was an Egyptian post-graduate student who had lodged a complaint of discrimination under the state Act. The New South Wales Equal Opportunity Tribunal upheld his complaint and, among other things, required the university to pay him substantial damages. Following Viskauskas, the university appealed against the decision of the state tribunal. It was a costly loss for student Metwally. Gibbs CJ, Murphy, Brennan and Deane JJ constituted the majority; Mason, Wilson and Dawson JJ dissented. (1984) 158 CLR 447 at 474; 56 ALR 1 at 19 per Brennan J. See, for example, J Stellios, Zines’ The High Court and the Constitution, 6th ed, Federation Press, Sydney, 2015, pp 625–8. (1965) 113 CLR 54; [1965] ALR 984. (2013) 250 CLR 441; 304 ALR 204; [2013] HCA 55. Australian Capital Territory Self-Government Act 1988 (Cth) s 28. Same Sex Marriage case (2013) 250 CLR 441; 304 ALR 204; [2013] HCA 55 at [57]. (1977) 137 CLR 545; 14 ALR 257. (1977) 137 CLR 545 at 563; 14 ALR 257 at 269–70. (2010) 241 CLR 491; 270 ALR 1; [2010] HCA 30. (2011) 245 CLR 1; 280 ALR 221; [2011] HCA 34. (2011) 245 CLR 1; 280 ALR 221; [2011] HCA 34 at [272]. (1977) 138 CLR 399; 15 ALR 609. (1977) 138 CLR 399 at 417; 15 ALR 609 at 623 per Mason J. His Honour’s analysis was approved in Dao v Australian Postal Commission (1987) 162 CLR 317 at 337–9; 70 ALR 449 at 458–9 by Mason CJ, Wilson, Deane, Dawson and Toohey JJ. G Lindell, ‘Grappling with Inconsistency between Commonwealth and State legislation and the Link with Statutory Interpretation’ (2005) 8(2) Constitutional Law and Policy Review 25. (1986) 160 CLR 330; 65 ALR 637. Mason J expressed doubts about this test in Ansett Transport Industries (Operations) Pty Ltd v Wardley (1980) 142 CLR 237 at 259; 28 ALR 449 at 463–4. (1999) 196 CLR 553; 161 ALR 318; [1999] HCA 8. The Australian Capital Territory (Self-Government) Act 1988 (Cth) s 28(1) states that a law of the ACT Legislative Assembly has no effect if it is inconsistent with a Commonwealth law, ‘but such a

provision shall be taken to be consistent with such a law to the extent that it is capable of operating concurrently with that law’. The Northern Territory (Self-Government) Act 1978 does not have an equivalent provision.

[page 409]

Chapter 28

The Reference Power 51. The Parliament shall, subject to this Constitution, have power to make laws … with respect to: … (xxxvii) matters referred to the Parliament of the Commonwealth by the Parliament or Parliaments of any State or States, but so that the law should extend only to States by whose Parliaments the matter is referred, or which afterwards adopt the law; …

This paragraph was one of the original provisions in the draft constitution agreed at the Convention Debates in 1891. The clause was debated again in the Melbourne session in 1898.1 That debate raised two principal issues: first, the difficulty of Parliament legislating under the paragraph on a matter involving all states unless those states made references in similar terms and at similar times; and second, whether a reference once made could be revoked. If it could not, then permanent amendments could be made to the Constitution without consulting the electors. John Quick expressed the view that once a state had referred a matter to the Federal Parliament it could not deal with it itself. A difference of opinion revealed itself during the debate as to whether a state Parliament could repeal its law referring the matter. Edmund Barton thought that it could not; Alfred Deakin and Quick thought that it could. The debate concluded without the question being clarified. [page 410] The paragraph refers to ‘matters’ and not ‘powers’. All matters which have been referred to the Commonwealth have been powers, but there could be matters which are not powers.

References in practice For many years, references of power by the states to the Commonwealth were rare. This was mainly because there were doubts as to the validity of a reference which referred a matter to the Commonwealth for a limited time or for an indefinite period terminable as provided by the state Act. In Tasmania, the Commonwealth Powers (Air Transport) Act 1952 (Tas) referred the matter of air transport to the Commonwealth for the period during which it was in force and no longer. Section 3 provided that the Act should cease to be in force on a date fixed by the Governor-in-Council. The High Court upheld the validity of the reference in 1964 in R v Public Vehicles Licensing Appeal Tribunal of Tasmania; Ex parte Australian National Airways Pty Ltd.2 The reference is still in force. Since the 1980s, the states have referred matters to the Commonwealth more frequently mainly because of increased Commonwealth legislative activity involving subjects that require uniform laws throughout the Commonwealth. New South Wales referred meat inspection to the Commonwealth in 1983. Since then, references involving most or all states have covered such topics as family law, state banking, mutual recognition, corporations, terrorism and de facto relationships. When a state refers a matter to the Commonwealth it retains the power to legislate concurrently with the Commonwealth,3 but the state law cannot be inconsistent with the Commonwealth Act. The question of whether a state can revoke a referral before the time specified in the reference expires remains unsettled. Also unsettled is the question of whether the termination of a reference also terminates the [page 411] operation of a Commonwealth law passed in reliance upon the referral.4 The Constitution Alteration (Interchange of Powers) 1984 would have addressed these questions, but it was rejected at the referendum in 1984.

If a state adopts a Commonwealth law rather than referring a power to the Commonwealth it seems that the Commonwealth law operates within the adopting state as Commonwealth law and not state law. It is probable that the adoption would cease when the last referral of power by other states terminates.5 In R v Hughes6 the question arose as to the extent to which the Commonwealth could perform functions on behalf of the states. The court held that the Commonwealth could validly institute a prosecution under the Corporations (Western Australia) Act 1990 (WA) provided that the Federal Parliament in authorising such action had the support of a relevant head of power. All states and the Commonwealth are parties to a uniform corporations law. In that case, the High Court held that s 51 paras (i) trade and commerce, (xx) corporations, and (xxxix) incidental power gave the necessary constitutional support. A state cannot, however, unilaterally vest functions in Commonwealth officers.

Constitution s 51(xxxviii) Apart from matters referred by states under s 51(xxxvii), under s 51(xxxviii) the Commonwealth may gain additional legislative power at the request or with the concurrence of state Parliaments over matters which at the establishment of the Constitution, the states could not exercise but which could only be exercised by the United Kingdom Parliament or by the Federal Council of Australasia.7 [page 412] In Port MacDonnell Professional Fishermen’s Association Inc v South Australia,8 the High Court took the view that the purpose of s 51(xxxviii) was to plug gaps which might otherwise exist in the plenitude of the legislative powers exercisable by Commonwealth and state Parliaments under their constitutions. The High Court has disregarded a much narrower view expressed by Quick and Garran.9 Those authors expressed their frustration about the content of the power. They pointed out that at the time of the Convention Debates, the

Colonial Laws Validity Act 1865 of the Imperial Parliament prevented the colonies from making laws inconsistent with that Act which were expressed to apply to them, and that this could also be the Commonwealth’s position after Federation. Section 51(xxxviii) was thus directed towards closing this gap, but they were not able to make sense of the reference to the Federal Council of Australasia. As interpreted by the High Court,10 the point of s 51(xxxviii) is to complete the emancipation of Australia from British law-making authority, by providing a means to repeal any residual United Kingdom (or Federal Council of Australasia) laws applying to Australia. The section also provided support for provisions of the Australia Act 1986 (Cth) which confirmed that emancipation.

1. 2. 3. 4. 5. 6. 7.

8. 9. 10.

Official Report of the National Australasian Convention Debates, Third session, Melbourne, 1898 (27 January 1898), pp 215–25. (1964) 113 CLR 207; [1964] ALR 918. Graham v Paterson (1950) 81 CLR 1; [1950] ALR 324. The situation is briefly discussed in G Carney, The Constitutional Systems of the Australian States and Territories, Cambridge University Press, Melbourne, 2006, pp 14–16. Carney, note 4 above, p 16. (2000) 202 CLR 535; 171 ALR 155; [2000] HCA 22. Section 51(xxxviii) reads ‘[The Parliament shall, subject to this Constitution, have power to make laws … with respect to] the exercise within the Commonwealth, at the request or with the concurrence of the Parliaments of all the States directly concerned, of any power which can at the establishment of this Constitution be exercised only by the Parliament of the United Kingdom or by the Federal Council of Australasia’. (1989) 168 CLR 340; 88 ALR 12. J Quick and R Garran, The Annotated Constitution of the Australian Commonwealth, Angus & Robertson, Sydney, 1901, pp 650–1. Port MacDonnell Professional Fishermen’s Association Inc v South Australia (1989) 168 CLR 340; 88 ALR 12; Attorney-General (WA) v Marquet (2003) 217 CLR 545; 202 ALR 233; [2003] HCA 67.

[page 413]

Part Six Commonwealth Executive Power

[page 415]

Chapter 29

The Executive Government 61. The executive power of the Commonwealth is vested in the Queen and is exercisable by the Governor-General as the Queen’s representative, and extends to the execution and maintenance of this Constitution, and of the laws of the Commonwealth.

Section 61 is in line with the formal separation of powers written into the Constitution as a whole. It is the principal source of power in the day-to-day government of the Commonwealth, carried on through ministers of state, government departments and a vast array of specialised federal agencies in the name of the Queen as the head of state. The Queen appoints the GovernorGeneral under s 2 of the Constitution to be her representative. Originally appointments were made on the advice of her own British ministers but they are now made on the recommendation of the Australian Government. Section 61 has to be read with s 62: 62. There shall be a Federal Executive Council to advise the Governor-General in the government of the Commonwealth, and the members of the Council shall be chosen and summoned by the Governor-General and sworn as Executive Councillors, and shall hold office during his pleasure.

The concept of a Federal Executive Council had its origin in the centuriesold Privy Council in England, which advises the Queen. It also corresponds to the Privy Council of Canada under the British North America Act of 1867. Under s 64, the Governor-General makes appointments to the Council and they become the Queen’s ministers of state for the Commonwealth. No minister of state can hold office for more than three months unless he or she is a senator or member of the House of Representatives. Thus, in [page 416]

contrast with the United States of America, where the executive government is entirely in the hands of a President and his or her advisors, none of whom is a member of Congress, the framers of the Constitution provided for a political executive, in practice the Cabinet, the members of which are answerable to the Parliament in accordance with the principle of responsible government. The Federal Executive Council meets as the formalities of government require, for example, when the Governor-General, acting on advice of the federal ministers, issues a proclamation to bring a new Act of Parliament into operation. Mostly, however, the day-to-day functions of government are carried on without reference to the Council. Under s 63, provisions of the Constitution which refer to the GovernorGeneral in Council are construed as referring to the Governor-General acting with the advice of the Federal Executive Council.1 The Constitution does not say in so many words that the Governor-General must accept the advice, but by convention this is almost invariably the position. For the Governor-General to reject the advice could have drastic consequences for stable government, and would defy the principle of responsible government. Some sections vest functions in the name of the Governor-General without any reference to the Federal Executive Council, for example, the power to dissolve both Houses under s 57 and to appoint ministers under s 64.2 Again, however, in the normal course of events these powers are only exercised in accordance with advice. A further section reads: 68. The command in chief of the naval and military forces of the Commonwealth is vested in the Governor-General as the Queen’s representative.

It is generally believed that since the Governor-General has to act on the advice of his or her ministers, the role of commander in chief is little more than ceremonial — but the provision has greater significance than this. Section 8 [page 417] of the Defence Act 1903 (Cth) gives the Minister for Defence authority over the general conduct of the defence forces. The chiefs of general staff, naval staff and

air staff share jointly with the secretary of the department responsibility for defence but all must comply with the directions of the Minister for Defence. In their wisdom, the founders ensured that under the Constitution military power is subject to civil power.3

The Queen and her Governor-General According to s 2 of the Constitution, the Governor-General has such powers and functions as the Queen assigns. In 1900, Queen Victoria issued letters patent, which, among others things, assigned powers of appointing public officials including judges, and summoning, proroguing and dissolving parliaments. Other assignments were made in 1954 and 1972 in relation to diplomatic representatives, but the Hawke Government rescinded both in 1987, after the passing of the Australia Acts made them superfluous. Such assignments are now covered by s 61. The current letters patent were issued on 21 August 2008. They deal with matters of machinery, such as the appointment of an Administrator in circumstances such as the Governor-General’s absence temporarily from office for any reason, in accordance with s 4 of the Constitution. The passage of time has eroded the range of functions which require the Queen’s personal attention. Without expressly saying so, however, the Constitution recognises the Queen as the head of state and is littered with references to her in various capacities. In her legislative capacity she is part of the composition of the Federal Parliament.4 Under the Royal Style and Titles Act 1973 (Cth) the Queen is now ‘Elizabeth the Second, by the Grace of God Queen of Australia and Her Other Realms and Territories, Head [page 418] of the Commonwealth’. Appointment of the Governor-General aside, the Queen performs little more than ceremonial functions, for example, she may open Parliament during her visit to Australia.

Otherwise the Governor-General’s powers under s 61 and the other constitutional provisions5 are exercised without consulting her. The importance of the role of the Governor-General, and the Queen’s intention not to interfere in it, was demonstrated in the crisis of 1975 (see Chapter 30). Her Majesty was directly approached by the Speaker of the Parliament to challenge the GovernorGeneral’s dismissal of the Whitlam Labor Government. The response, delivered by the Queen’s private secretary, disavowed any role for the Queen other than maintaining a beneficent personal interest, and expressly indicated that the Governor-General alone exercised the relevant power.

Prerogative powers of the Crown Professor A V Dicey, writing in Introduction to the Study of the Law of the Constitution first published in the 1880s, maintained that the United Kingdom Parliament was a sovereign institution which legally speaking could make or unmake any law whatsoever.6 His thesis was accepted by the common law courts without demur. The same common law courts recognised that prerogatives of the Crown survived the overthrow of the Stuart monarchy in 1688. On that occasion, when William and Mary replaced James II on the English throne, the Bill of Rights of 1688, enacted in 1699, curtailed the extensive royal prerogatives James had attempted to exercise. In effect, it established Parliament as the sovereign institution of the British Government. According to Professor Dicey, the prerogative was ‘the residue of discretionary or arbitrary authority which at any given [page 419] time is legally left in the hands of the Crown’.7 His description is wide enough to encompass not only prerogatives reserved to the Crown, but also nonexclusive capacities of the Crown which the common law courts recognised, such as entry into contracts, ownership of property and carrying on business.8 In the High Court’s early years, individual judges, still unsure whether the Governor-General had the status merely of a general agent of the sovereign, or of

a viceroy, assumed that the prerogative powers did not pass under s 61 to the Governor-General. This is not the present position. In Barton v Commonwealth9 Mason J pointed out that the Constitution established Australia as a political entity and brought it into existence as a member of the community of nations. His Honour then wrote: By s 61 the executive power of the Commonwealth was vested in the Crown. It extends to the execution and maintenance of the Constitution and of the laws of the Commonwealth. It enables the Crown to undertake all executive action which is appropriate to the position of the Commonwealth under the Constitution and to the spheres of responsibility vested in it by the Constitution. It includes the prerogative powers of the Crown, that is, the powers accorded to the Crown by the common law.10

The prerogative powers of the Crown are extensive and important even today. As Jacobs J pointed out in Victoria v Commonwealth in 1975, they include powers ‘to declare war, make treaties, appoint officers of State and members of the Public Service of the Commonwealth and do all the multitude of things which still fall within the prerogative’.11 Since the prerogative powers depend on their recognition by the common law, any of them may be modified or removed by Act of Parliament, and in [page 420] many cases this has happened both in England and Australia. They cannot be extended beyond those recognised pursuant to the settlement of 1688, although Parliament can of course create statutory executive powers in areas within its competence.

Australian examples of prerogative powers Areas in which the executive exercises prerogative powers that have been considered by the High Court include: •

International affairs. The prerogatives exercised by the executive government in this area are wide ranging and include a power to enter into treaties, exercised by the Governor-General acting on the advice of

the Federal Executive Council12 and a power to seek the extradition of fugitives in the absence of an extradition treaty.13 •

Defence. The Commonwealth has the power to declare war or make peace.14

•

Legal matters. The High Court has held that the federal power extends to give the Commonwealth priority over every creditor including the states in the winding up of a company in liquidation.15 A decision of the Attorney-General not to grant a fiat in a relator action to enable the enforcement of public rights is not open to legal challenge.16 An Act of Parliament will not be held to bind the Crown unless the legislation discloses an intention to do so.17 At common law the Crown is also immune from suit against it on the footing that the Sovereign can do no wrong. However, the court has held that Crown immunity cannot oust the power of the High Court and other federal [page 421]

courts to determine cases involving the exercise of the High Court’s original jurisdiction under Ch III of the Constitution.18 Not all the reserve powers of the British Crown are absorbed in Australia because some are not relevant, for example, the prerogatives applying to the Queen’s relationship with the Anglican Church defined in the Bill of Rights in 1688. In any event, s 116 of the Constitution limits Commonwealth legislative power in respect of religion and prevents the imposition of any religious test as a qualification for any public office. Contrary to the position taken in its early years, the High Court now recognises that s 61 of the Constitution confers the prerogative powers of the Crown in Australia on the Governor-General. In Ruddock v Vadarlis19 French J stated: By s 61 the executive power of the Commonwealth was vested in the Crown. … It enables the Crown to undertake all executive action which is appropriate to the position of the Commonwealth under the Constitution and to the spheres of responsibility vested in it by the Constitution. It includes the prerogative powers of the Crown, that is, the powers accorded to the Crown by the

common law.20

In Davis v Commonwealth, Mason CJ, Deane and Gaudron JJ stated that s 61 ‘confers on the Commonwealth all the prerogative powers of the Crown except those that are necessarily exercisable by the States under the allocation of responsibilities made by the Constitution and those denied by the Constitution itself’.21

Immunity of the Crown from Acts of Parliament For many years the High Court applied the common law rule that Acts of the Commonwealth Parliament were presumed not to bind the Crown in [page 422] the absence of express language or necessary implication that it should be bound. One result was to place the executive government in a privileged position by relieving it from obligations imposed by legislation on the community at large. In Bropho v Western Australia,22 the High Court held that a more flexible approach should be applied to the construction of Acts of Parliament, and that whether Crown immunity applied should be decided according to the context and purpose of the particular legislation in each case. The Bropho case examined whether Western Australia’s Aboriginal Heritage Act 1982 was binding on the state. The Act made it a criminal offence to interfere without authority with a site of cultural, spiritual or historical significance to Aboriginal people. The court held that the Act bound the Crown. The court’s approach is open to the objection that it should not be left to the chance of litigation to determine whether or not an Act binds the Crown. Since there are six state governors who represent the Crown in right of the states, a question may arise whether a Commonwealth Act should apply to the state Crown. For many years, the prevailing wisdom has been that the Crown is one and indivisible in spite of its different emanations. The theory is out of touch with reality. The Queen is not only Queen of Great Britain and Northern

Ireland and Head of the Commonwealth, but also Queen of other members of the Commonwealth including Australia, Canada and New Zealand, and the interests of the executive government of these countries undertaken in the name of the Crown may be in conflict with each other. It is now established that the rule that the Crown is not bound unless it is expressly mentioned or there is a necessary implication remains applicable to the states and the Commonwealth in their relationships with each other, so that (for example) legislation which expressly indicates an intention to apply to the Commonwealth will not be held to apply to a state unless a separate intention to so do is expressed, or necessarily implied.23 [page 423]

The decline of Crown privilege Privileges remaining to the Crown after the 1688 overthrow of the Stuart monarchy in Britain could reasonably be applied to the Australian Commonwealth in 1900. Though the six colonies had legislative independence under their constitutions, they remained as separate colonies subject to overriding British law and without international status. Federation did not elevate the Commonwealth from dependency on Britain. It too remained a colony and Britain retained a monopoly in the conduct of foreign affairs. In the earlier years, appointments of the Governor-General were made on the advice of imperial ministers and until the appointment of Isaac Isaacs in 1931, they were invariably British. Despite their origins in English history, the royal prerogatives have survived the emergence of Australia as a completely independent country in its own right. In some quarters, the royal trappings associated with the Crown are seen in the 21st century as being mainly an expendable facade. In a recent English case in the House of Lords, Lord Bingham said: Over the centuries the scope of the royal prerogative has been steadily eroded, and it cannot today be enlarged … As an exercise of legislative power by the executive without the authority of Parliament, the royal prerogative to legislate by order in council is indeed an anachronistic survival.24

His Lordship then referred to an earlier dictum of Lord Reid, who said: ‘The

prerogative is really a relic of a past age, not lost by disuse, but only available for a case not covered by statute.’25 Nevertheless, the attraction for those who wield executive power of opportunities to act without procuring authorisation from parliaments means that the prerogatives of the Crown continue to be invoked on a [page 424] regular basis. The pragmatic advantages it offers to the modern state ensure the preservation of an antiquated institution.

The reserve powers of the Governor-General While several sections of the Constitution confer powers on the GovernorGeneral in Council, others vest power in the Governor-General without reference to the Federal Executive Council. These are the so-called reserve powers of the Governor-General, which may be exercised in his or her own name (although, in practice, there will be many instances where these powers are exercised on the advice of the government — their exercise as ‘reserve powers’ contrary to, or without, advice being exceptional). They include the following:26 •

section 5 — appointment of times for holding sessions of Parliament and the prorogation of Parliament27 and the dissolution of the House of Representatives;

•

section 57 — double dissolution of both Houses of Parliament following a disagreement between them;

•

section 64 — the appointment and dismissal of members of the Federal Executive Council, including the Prime Minister; and

• section 68 — command of the armed forces. In the normal course of events, the Governor-General would exercise the foregoing powers in consultation with the Prime Minister or Federal Executive Council. The Governor-General cannot be deprived of these powers as they are

provided for in the Constitution. In 1975 the Governor-General, Sir John Kerr, relied on his reserve powers to dismiss the Whitlam Government, as discussed in Chapter 30. [page 425]

Extent of the executive power Section 61 of course provides the constitutional footing for government departments and other federal agencies to carry on their activities under the authority of Acts of Parliament, and activities incidental to the execution of functions under the section. The full extent of the executive power is still to be determined and it may never be settled, because government policies are not static and depend on a wide variety of situations current in Australian society at any given time. A case in point is Ruddock v Vadarlis,28 known as the Tampa case. In 2001 the MV Tampa, a Norwegian container ship, at the request of Australian authorities, rescued 433 people, mainly Afghan refugees, from a sinking wooden fishing boat in international waters. Captain Rinnan of the Tampa informed Australian authorities that the refugees overloaded his ship and that several of them were in need of medical treatment which he could not provide. In response to a request of the Australian authorities he said he was not prepared to risk the safety of his ship and those on board by sailing to Indonesia where the refugees’ journey on the wooden vessel originated. After his requests to travel to an Australian port were turned down, Captain Rinnan declared a state of emergency and proceeded to enter Australian waters around the Australian territory of Christmas Island. The Commonwealth Government decided that the rescued passengers would not be permitted to land on the island, and dispatched Australian SAS troops to board the Tampa and prevent it from approaching any closer. The purpose was to prevent the passengers from applying for asylum, which they could legally do if they entered Australian territory and claimed to be refugees. The troops on board the Tampa instructed the crew to move the ship to international waters with a view to the asylum

seekers being accepted by Indonesia and Norway. The captain refused, saying the ship was unsafe to sail with the large numbers on board well in excess of its capacity. Eventually the refugees were compulsorily transferred onto [page 426] HMAS Manoora, and most were transported to detention in Nauru to have their claims to refugee status processed. Plaintiffs in the case sought a writ of habeas corpus for the release of the refugees. At first instance North J of the Federal Court held that their detention by the Commonwealth on board the Tampa had been without lawful authority. On appeal, the Federal Court in a two to one decision held that, by s 61 of the Constitution, the prerogative powers of the Crown have been conferred on the Commonwealth. The prerogative powers could be displaced by statute, in accordance with the principle of parliamentary sovereignty, but this had not happened. The court held that the power to expel aliens was an incident of executive power under s 61. In the 1998 case of Davis v Commonwealth,29 the High Court considered the bicentenary of colonisation. Under the Australian Bicentennial Authority Act 1980 (Cth), the Parliament established the Australian Bicentennial Authority as a company with the primary object of planning celebrations to commemorate the first European settlement in 1788. The Act restricted the commercial use of various expressions without the authority’s consent, for example, ‘200 years’ and ‘First Settlement’. The plaintiffs sought declarations that the Act was beyond the Parliament’s legislative power, and that the appropriation of money for the purposes of the Authority was not authorised by s 81 of the Constitution. After holding that some of the circumscribed expressions, including those just quoted, could not be restricted, the High Court held nevertheless that the provision for the commemoration of the bicentenary was within the executive power of the Commonwealth. It held that the occasion was pre-eminently the business and concern of the Commonwealth as a national government and fell clearly within the federal executive power. In so deciding, the court took the view that s

51(xxxix) empowered Parliament to legislate in aid of the exercise of the executive power, and that once it was accepted that the executive power extended to the incorporation of the Authority, then s 51(xxxix) was [page 427] sufficient to authorise the legislation.30 The decision was an endorsement of the views expressed by Mason J in Barton v Commonwealth,31 quoted earlier in this chapter. Victorian Stevedoring and General Contracting Co v Dignan32 in 1931 endorsed the power of Parliament to delegate to the executive government authority to make rules and regulations. As Evatt J pointed out in the case, Parliament could not, however, abdicate its powers of legislation because each law passed by the Parliament delegating the legislative power had to answer the description of being with respect to a subject matter listed in the Constitution. As a result of the permissive approach taken by the court in this case, delegated legislation — generated not by Parliament, but made by the Governor-General under the authority of Acts of Parliament after being drafted by departmental functionaries — is now as extensive as Acts of Parliament themselves, if not more so. There have even been instances of Acts of Parliament allowing the executive to make regulations amending the Act itself. Thankfully, such provisions, colloquially known as Henry VIII clauses, seem to have fallen into disuse. In the late 20th and early 21st centuries economic ‘globalisation’ was a feature of public life. One conspicuous result was the vulnerability of national economies to international factors. Thus, when in 2008 a global financial crisis broke out which threatened major global economies including the United States and many European nations, all nations (including Australia) faced economic challenges. The Commonwealth Government acted quickly to counter the immediate danger of economic recession, launching an economic stimulus package which took advantage of Australia’s relative economic strengths. One notable strategy

was the disbursement of money to millions of consumers under a tax bonus scheme. The bonus scheme was without precedent, and [page 428] no routine mechanism existed to give it effect. The Commonwealth’s legal capacity to pay bonuses was tested in Pape v Commissioner of Taxation (Cth) in 2009.33 The case was a test of the adaptability of the executive power to new circumstances. The Commonwealth now undoubtedly had the financial ability to stimulate the economy, whereas the states did not. But would its executive power expand to enable the Commonwealth to act to avoid a recession unprecedented in its severity since the Great Depression of the 1930s? The plaintiff sued the Commissioner of Taxation, asserting that the bonus of $250 which he had received could not lawfully be paid to him. The High Court in a five to two decision upheld the validity of the Tax Bonus for Working Australians Act (No 2) 2009 (Cth) (Tax Bonus Act). The court held that the executive government’s determination that there was need for an immediate fiscal stimulus to the national economy enlivened legislative power under s 51(xxxix) to enact the Tax Bonus Act as a law incidental to that exercise of the executive power. French CJ said: The executive power of the Commonwealth conferred by s 61 of the Constitution extends to the power to expend public moneys for the purpose of avoiding or mitigating the large scale adverse effects of the circumstances affecting the national economy disclosed on the facts of this case, and which expenditure is on a scale and within a time-frame peculiarly within the capacity of the national government.34

In Pape, distributing the stimulus moneys was within executive power because of the unique challenge posed by the global financial crisis and the Commonwealth’s unique position to respond to it, facts which enlivened a special limb of s 61 dealing with defined matters of nationhood. Comments in the judgments, however, raised the question of whether other Commonwealth spending programs, not falling within the nationhood limb of s 61, might be open to challenge. The answer came in two challenges

[page 429] to a National School Chaplaincy Program brought by a disgruntled parent, Mr Ronald Williams — and significantly narrowed the scope for spending by the Commonwealth executive. In 2012 in Williams v Commonwealth,35 the High Court struck down the Commonwealth’s spending on the chaplaincy program. Six Justices of the court held that s 61 did not (outside the nationhood limb) support spending in the absence of a law authorising it. The decision was not relevant just to the chaplaincy program — the Attorney-General estimated that 5 to 10 per cent of the Commonwealth’s entire expenditure might now be invalid.36 In response, within a week Parliament passed the Financial Framework Legislation Amendment Act (No 3) 2012 (Cth) to provide statutory authority for the many spending programs it had previously carried on in the belief the executive power alone could sustain them. No doubt this legislation did validate much Commonwealth spending, although its validity has yet to be fully tested. However, even if valid, it could only do so where legislative power under ss 51, 52 or 122 existed to authorise a Commonwealth law on each particular topic of spending. The tenacious Mr Williams was undaunted, and challenged the new law in an attempt to once again halt the chaplaincy program. In 2014 in Williams v Commonwealth (No 2),37 the High Court unanimously held the legislation invalid in its attempt to authorise spending on the chaplaincy program, on the basis that no head of power in s 51 applied. The effect of the two Williams decisions is that the Commonwealth can only directly spend money on programs within the scope of its legislative powers (ss 51, 52 and 122) and where it has statutory authorisation, or in a limited fashion under the executive power arising from s 61 (for expenditure relating to the ordinary and well-recognised functions of government, for example, directly on the public service, or where the [page 430]

nationhood limb applies). Although this represents a significant constraint on Commonwealth executive power, there are ways to minimise its impact: the National School Chaplaincy Program continues, but is now carried on by the states and territories under a tied grant from the Commonwealth under s 96 of the Constitution.

1. 2. 3.

4. 5.

6. 7. 8.

9. 10. 11. 12. 13. 14. 15. 16. 17. 18. 19. 20.

For example, ss 32, 33, 64, 67, 70, 72, 83 and 103. Other sections include ss 5, 21, 56, 62, 68, 69, 70, 126 and 128. The founders were very conscious of Australia’s reliance on Britain to defend Australian shores and were content that Australian forces should be associated with the imperial defence forces of the Queen. Hence the names of Australian naval ships and shore installations are prefixed HMAS, ‘Her Majesty’s Australian Ship’, and the Australian Navy and Air Force are prefixed ‘Royal’. Section 1 vests the legislative power in a Federal Parliament consisting of the Queen, a Senate and a House of Representatives. A former secretary to five Governors-General, Sir David Smith, has expressed the view that the Governor-General is now to be treated for all practical purposes as the head of state: D Smith, Head of State: The Governor-General, the Monarchy, the Republic and the Dismissal, Macleay Press, Sydney, 2005. A V Dicey, Introduction to the Study of the Law of the Constitution, 10th ed, Macmillan, London, 1959, p 424. Dicey, note 6 above. Dicey, note 6 above. See also L Zines, The High Court and the Constitution, 6th ed, Federation Press, Sydney, 2008, p 374 referring to Brennan J in Davis v Commonwealth (1988) 166 CLR 79 at 108; 82 ALR 633 at 651. (1974) 131 CLR 477; 3 ALR 70. (1974) 131 CLR 477 at 498; 3 ALR 70 at 86. See also Davis v Commonwealth (1988) 166 CLR 79 at 93; 82 ALR 633 at 640 per Mason CJ, Deane and Gaudron JJ. Victoria v Commonwealth (1975) 134 CLR 338 at 405; 7 ALR 277 at 333. R v Burgess; Ex parte Henry (1936) 55 CLR 608; [1936] ALR 482. Barton v Commonwealth (1974) 131 CLR 477; 3 ALR 70. Farey v Burvett (1916) 21 CLR 433 at 452; 22 ALR 201 at 209. Commonwealth v Cigamatic Pty Ltd (in liq) (1962) 108 CLR 372; [1963] ALR 304. R v Toohey; Ex parte Northern Land Council (1981) 151 CLR 170 at 218 per Mason J, at 283 per Wilson J; 38 ALR 439 at 478 per Mason J, at 530–1 per Wilson J. Bropho v Western Australia (1990) 171 CLR 1; 93 ALR 207, a case involving a state Act making it an offence to destroy or damage Aboriginal sites or objects. Commonwealth v Mewett (1997) 191 CLR 471 at 545–52; 146 ALR 299 at 344–9. (2001) 110 FCR 491; 183 ALR 1; [2001] FCA 1329. Ruddock v Vadarlis (2001) 110 FCR 491 at 538; 183 ALR 1 at 47; [2001] FCA 1329 at [178] per French J, quoting Barton v Commonwealth (1974) 131 CLR 474 at 498; 3 ALR 70 at 86 per Mason J.

21. 22. 23. 24. 25. 26. 27.

28. 29. 30. 31. 32. 33. 34. 35. 36. 37.

(1988) 166 CLR 79 at 93; 82 ALR 633 at 640. (1990) 171 CLR 1; 93 ALR 207. Bradken Consolidated Ltd v Broken Hill Proprietary Co Ltd (1979) 145 CLR 107; 24 ALR 9. R (Bancoult) v Secretary of State for Foreign and Commonwealth Affairs (No 2) [2009] 1 AC 453; [2008] UKHL 61 at [69]. [2009] 1 AC 453; [2008] UKHL 61 at [69] quoting Burmah Oil Company (Burma Trading) Ltd v Lord Advocate [1965] AC 75 at 101 per Lord Reid. See, for example, Commonwealth of Australia, An Australian Republic — The Options: The Report of the Republic Advisory Committee, Australian Government Printer, Canberra, 1991, vol I, p 88. Prorogation is normally exercised on advice; a reserve power to refuse prorogation would arise exceptionally in the case of a minority government seeking to use prorogation to avoid a vote of noconfidence. See, for example, A Toomey, ‘Prorogation: Can it Ever be Regarded as a Reserve Power?’ (2016) 27 Public Law Review 144. (2001) 110 FCR 491; 183 ALR 1; [2001] FCA 1329. (1988) 166 CLR 79; 82 ALR 633. Three members of the court, including Mason CJ, thought it may be possible to support the conclusion without recourse to s 51(xxxix). (1974) 131 CLR 477 at 498; 3 ALR 70 at 86. (1931) 46 CLR 73; 38 ALR 22. (2009) 238 CLR 1; 257 ALR 1; [2009] HCA 23 (Pape). (2009) 238 CLR 1; 257 ALR 1; [2009] HCA 23 at [8]. (2012) 248 CLR 156; 288 ALR 410; [2012] HCA 23. G Williams, S Brennan and A Lynch, Blackshield and Williams Australian Constitutional Law and Theory: Commentary and Materials, 6th ed, Federation Press, Sydney, 2014, 10.114. (2014) 252 CLR 416; 309 ALR 41; [2014] HCA 23.

[page 431]

Chapter 30

The Governor-General and the Double Dissolution of 1975 In 1975 an unprecedented political and constitutional crisis led the GovernorGeneral, Sir John Kerr, relying on his reserve powers, to dismiss the Whitlam Government on the ground that it was unable to obtain the passage through Parliament of supply bills appropriating the necessary funds to carry on the ordinary annual services of the government.1 It appeared that unless the Senate granted supply, there would soon be insufficient money to meet all the government’s financial commitments. Supporters of Gough Whitlam’s government were outraged because he had a comfortable majority in the House of Representatives and the crisis arose solely from the fact that his government lacked a majority in the Senate. The absence of a government majority in the Senate has been a common feature of federal politics since the introduction of proportional representation for election of senators in 1948. That, coupled with the constitutional position under which only half the Senate seats are vacant for the election each three years, means that the Senate’s composition typically does not match the House of Representatives, where the government normally commands a majority. Before dismissing the government the Governor-General received an assurance from the Leader of the Opposition, Malcolm Fraser, that the Opposition would secure the passage of the appropriation bills and then Fraser would recommend to the Governor-General that there be [page 432]

dissolution of both Houses of Parliament. Acting on the assurance, Sir John Kerr dissolved the two Houses pursuant to his powers under s 57 of the Constitution. The ensuing election resulted in the defeat of the Whitlam Government and the incoming government headed by Malcolm Fraser was returned with a majority in both Houses. In the Governor-General’s view, the double dissolution not only resolved the crisis but justified the action he had taken. Under s 57, the occasion of a double dissolution only arises where the Senate has rejected or failed to pass a proposed law and after an interval of three months it again does the same thing. In granting the double dissolution, the GovernorGeneral cited 21 bills, all of which the non-Labor Opposition had twice rejected over several months. The bills were merely the trigger for the GovernorGeneral’s action, and none of the further steps that could be taken under s 57 to pass the bills after the double dissolution election were ever taken. Obviously, Gough Whitlam could have advised the Governor-General to dissolve both Houses, and he would then have gone to a general election as the Prime Minister of the government in office, but he chose not to do so, and he was under no obligation to do so. Advising that there should be a double-dissolution election is a matter for the Prime Minister, not the Governor-General (who acts in response to the Prime Minister’s advice). The reserve powers of the Governor-General are not to be found written in the Constitution, but arise from unwritten constitutional conventions which are an essential part of the system of responsible government. Only one prior instance of the exercise of the claimed reserve power of dismissal in Australia could be identified.

Dismissal of the Lang Government — 1932 Under the Financial Agreement of 1927 with the states, the Commonwealth took over the management of state debts and undertook all future borrowings of moneys on behalf of the states. A constitutional amendment, s 105A, authorised the Commonwealth’s entry into the agreement and

[page 433] further authorised the Federal Parliament to make laws for carrying it out. At the height of the Great Depression of the 1930s, the Lang Labor Government in New South Wales suspended payment of interest owing on its overseas loans payable to the Commonwealth for transmission to the state’s foreign creditors. The Federal Parliament passed the Financial Agreement Enforcement Act 1932 (Cth) to provide for the seizure of state revenues and the collection of taxes and moneys owing to the state for the purpose of making payment of the overseas debt. A state challenge to the Act was dismissed by the High Court in New South Wales v Commonwealth (Garnishee case)2 whereupon Premier Lang instructed the New South Wales Public Service to forward all its revenues to the state Treasurer. The Governor of New South Wales, Sir Philip Game, expressed concern that the premier’s actions were in breach of the Financial Agreement and requested that he establish its legality or withdraw it. Jack Lang declined to do either. The Governor then advised Lang to abide by the law or resign. When Lang refused to do either, the Governor terminated his commission and appointed the Leader of the Opposition, Bertram Stevens, as premier. The incoming premier advised the Governor to dissolve the Legislative Assembly and Stevens was returned to office at the ensuing elections. The Governor’s decision was open to criticism because he acted without the legality of Mr Lang’s action having first been tested in court, as it could have been. The Lang dismissal stands as a precedent that gives at least a measure of support for Sir John Kerr’s actions in 1975.

Dismissal of the Whitlam Government — 1975 It has been widely argued that Kerr’s dismissal of Whitlam created divisiveness within the Australian community. This was perhaps an inevitable consequence, given that the Australian political scene almost from the beginning of federation has been a battle to obtain government between the Labor Party and two nonLabor parties currently called the Liberal Party

[page 434] and the National Party. The Governor-General expected that he would be a lonely man in the wake of the crisis. Subsequently he was the object of vitriolic and sometimes callous treatment at the hands of sections of the community, for the most part unflinching supporters of the Labor Party. Divisiveness has long been endemic in federal politics both in Canberra and on the hustings. In the gentle realm of academia, ex post facto analysis and commentary also revealed strong differences of opinion about the justification or otherwise of how the Governor-General performed his role. It is not easy to find a balanced account. Among authorities referred to in this book, Williams et al in Blackshield and Williams Australian Constitutional Law and Theory present a balanced (though incomplete) treatment of the subject.3 On the other hand, Hanks Australian Constitutional Law, written by well regarded authors, contains a critical and one-sided version of events.4 Another academic writer, L J M Cooray, in Conventions, the Australian Constitution and the Future,5 takes umbrage at the treatment of Gough Whitlam by Sir John Kerr, and repeatedly disparages the Governor-General by assembling pieces of information from a miscellany of sources and his own opinions. Surprisingly, none of the works refers to Kerr’s own book, Matters for Judgment.6 A leading constitutional expert of his time, Professor Geoffrey Sawer, dealt with the dismissal in his book Federation Under Strain.7 He noted that Kerr had received legal opinions from Robert Ellicott (former Solicitor[page 435] General and prominent member of the Opposition) and Sir Garfield Barwick (Chief Justice of the High Court at the time), both of whom had advised that the Senate’s decision to defer supply justified the Governor-General dismissing Whitlam and his ministers. Sawer observed that the advice given to Kerr embodied a fallacious assertion that the Whitlam Government was responsible

to both Houses of the Parliament, whereas the true position was that responsibility lay entirely within the House of Representatives. Sawer, after stating that the Governor-General’s action was premature, wrote: On 11 November 1975 he could not be certain that his proper concern for the meeting of the Commonwealth’s legal obligations would fail to be satisfied in any other way than by the action he then took, nor that serious illegalities would occur unless he acted then. There were three possibilities which were substantial enough to warrant delay. The Senate half-election proposal might have produced an electoral solution in sufficient though not comfortably sufficient time, or before that a change in political attitudes; political solutions were still possible, such as fresh compromise proposals or changes in the attitude of the Senate or some of its Liberal members; the alternative schemes for meeting at least the bulk of the government’s financial obligations when existing supply ran out in another fortnight needed further consideration as to both legality and practicability and a short period of trial.8

In a letter terminating Gough Whitlam’s appointment, the GovernorGeneral stated that he had acted after being told by Whitlam that he would never resign or advise an election of the House of Representatives or a double dissolution and that the only way in which such an election could be obtained would be by dismissing him and his government. Whitlam, Kerr said, had persisted in his attitude. The letter was accompanied by a statement by the Governor-General of his reasons which is reprinted in Appendix B. It stated that if the Prime Minister could not get supply, he had to resign or advise an election. If he did neither, the Governor-General claimed the constitutional authority and duty to withdraw his commission [page 436] and invite the Leader of the Opposition to form a caretaker government, the Leader of the Opposition having given an assurance that supply would resume. It was for the people to decide the issue that the two leaders had failed to settle. Kerr added that he regretfully concluded that there was no likelihood of a compromise between the House of Representatives and the Senate or between the government and the Opposition. The Senate, he said, was entitled to reject the appropriation bills, and parliamentary control of appropriation and of expenditure was a fundamental feature of our system of responsible government. After pointing out that s 57 of the Constitution was inappropriate to resolve

fundamental problems posed by the refusal of supply, he asserted that it did not cut down the reserve powers of the Governor-General, which extended to the action he had taken. He also revealed that he had consulted Barwick, the Chief Justice, after having made up his own mind.9 Shortly after Malcolm Fraser announced his commission, the House of Representatives, on the motion of Gough Whitlam, resolved that it did not have confidence in the new Prime Minister and requested the Speaker to advise the Governor-General to call upon Whitlam to form a government. The Speaker, Gordon Scholes, wrote at once to the Queen and a few days later received a response from her private secretary which included the following: [T]he Australian Constitution firmly places the prerogative powers of the Crown in the hands of the Governor-General as the representative of the Queen of Australia. The only person competent to commission an Australian Prime Minister is the Governor-General, and The Queen has no part in the decisions which the Governor-General must take in accordance with the Constitution. Her Majesty, as Queen of Australia, is watching events in Canberra with close interest and attention, but it would not be proper for her to intervene in person in matters which are so clearly placed within the jurisdiction of the Governor-General by the Constitution Act.10

[page 437] Gough Whitlam’s chagrin is easy to understand. In 1972, campaigning under the rubric ‘It’s time’, his party won the general election handsomely, only to find that the Liberal–Country Party Coalition, in opposition for the first time since 1949, took advantage of its Senate majority to reject six bills passed by the House of Representatives which sought to give effect to policies which the incoming government could properly claim had been instrumental in its gaining office. In April 1974, the Leader of the Opposition in the House of Representatives announced that it would oppose the government’s appropriation bills in both Houses and force the government to a general election. Prime Minister Whitlam’s response was that he would advise the Governor-General to dissolve both Houses, whereupon the Opposition then allowed the passing of the appropriation bills and the Governor-General granted the double dissolution. In

the election that followed the government was comfortably returned to office, but again failed to obtain a Senate majority.11 Although the Prime Minister could rightly claim an endorsement from the electorate, he again faced a Senate seemingly as hostile as before. Proposed laws passed by the House of Representatives continued to be rejected. However, Whitlam did not again resort to a double dissolution. The harsh reality was that during 1975 there was growing public disenchantment about how his government was managing the affairs of state. He probably lacked the confidence he possessed on the previous occasion that he would emerge victorious. On the other hand, Fraser, who had succeeded Billy Snedden as Leader of the Opposition in 1974, was confident in 1975 that the Coalition would be elected to government. He had little to lose compared with Whitlam. It was a contest for political power between two dominant antagonists, pushed to the edges in 1975 before Kerr’s intervention. His action resolved the conflict by the same means that Whitlam had adopted in the previous year, but with an entirely different result. [page 438] Now, over 40 years after the event, a review of the criticisms of Sir John Kerr’s decision is warranted. The principal criticisms include the following: •

The Governor-General ignored a convention in existence for many years that the Senate would not seek to reject appropriation bills essential to the ordinary annual services of the government.

•

He should have encouraged discussions between Whitlam and Fraser seeking to obtain a settlement to the crisis by agreement between them, rather than himself take centre stage and convert a political situation into a constitutional issue.

•

He acted prematurely because there were indications that some members of the Opposition were likely to weaken in their resistance to the appropriation bills.

•

He also acted too soon because the necessary funds were still available to the government while it sought to obtain alternative financial accommodation.

•

It was not clear that the Governor-General had a reserve power to dismiss the Whitlam Government.

•

The Governor-General should have given advance notice to Whitlam of his intention to dismiss him rather than depriving him of a final opportunity to make alternative suggestions.

•

He had listened to advice from the Prime Minister, Treasurer, AttorneyGeneral and Solicitor-General but misleadingly failed to indicate he would not act in conformity with it.

•

He should not have secretly sought advice from the Chief Justice of the High Court, Sir Garfield Barwick, a former Liberal Party AttorneyGeneral, nor from another Justice of the court Sir Anthony Mason, nor should the Chief Justice or Justice Mason have given him advice.

•

In entering the political controversy, the Governor-General acted as a lawyer and did not have sufficient regard to democratic principles at a time when the Whitlam Government had a clear majority in the House of Representatives. [page 439]

•

•

He also acted prematurely and kept Whitlam in the dark for fear that the Prime Minister would recommend to the Queen that his appointment as Governor-General be terminated.

There was nothing in the Australian experience to support the proposition asserted by the Governor-General and Chief Justice that a Commonwealth ministry had responsibility to both the Senate and the House of Representatives. Each of these points will be discussed separately below.

Whether there was a convention that the Senate should not reject supply In October 1975, the House of Representatives passed a motion complaining about the Opposition’s actions in the Senate. Among other things, it affirmed that the Constitution and ‘the Conventions of the Constitution’ vested control of the supply of moneys to the elected government and that the Senate’s threatened action was a violation of the respective roles of the two Houses. The evidence is against the existence of such a convention in 1975 and this remains the case. A convention is not just a practice. It requires the actual participants, that is, the members of the legislature, to accept by mutual and undisputed understanding that they have an obligation to obey a particular rule of conduct. In 1970 the Leader of the Opposition in the Senate, Labor Senator Lionel Murphy, stated: There are no limitations on the Senate in the use of its constitutional powers, except the limitations imposed by discretion and reason. The Australian Labor Party has acted consistently in accordance with the tradition that we will oppose in the Senate any tax or money bill or other financial measure whenever necessary to carry out our principles and policies.12

[page 440] Shortly afterwards, Gough Whitlam, speaking as Leader of the Opposition in the House of Representatives on an appropriation bill, stated: Let me make it clear at the outset that our opposition to this Budget is no formality. We intend to press our opposition by all available means on all related measures in both Houses. If the motion is defeated, we will vote against the Bills here and in the Senate. Out purpose is to destroy this Budget and to destroy the Government which has sponsored it.13

In 1976 J R Odgers, the Clerk of the Senate, in his classic book Australian Senate Practice, set out several reasons why there was no convention that the Senate should not defer or reject supply of money.14 Odgers listed 64 occasions in which the Senate not only made requests for amendments of money bills but pressed its requests until they were complied with by the House of Representatives. He also mentioned that at Westminster before the passing of

the Parliament Act 1911 (UK) the House of Lords, a non-elected House, rejected the 1909 UK Budget and a dissolution of Parliament followed. In 1975, Sir John Kerr read a work by eminent Canadian constitutional authority Senator Eugene Forsey, entitled The Royal Power of Dissolution of Parliament in the British Commonwealth.15 The book was an elaborate study supporting the existence of a reserve power vested in the Crown to force dissolutions. The book offered clear support for Kerr’s view that there was not only a reserve power but also no convention that the Senate should not defer or reject supply.16 [page 441] The Governor-General as a conciliator or mediator The Governor-General considered it was not his role to take an independent initiative of a political kind by suggesting to the two antagonists that they resolve their differences with him as a mediator. He acknowledged that he could properly have encouraged them to settle their differences but observed that it was open to the leaders to seek a mediation without his involvement and neither had given any indication that such a course of action was a possible way out. As to mediation, Kerr asked Whitlam on 21 October whether Whitlam would agree to him seeing the Leader of the Opposition in order to assess whether Fraser was determined to cross from a political to a constitutional crisis. Prime Minister Whitlam agreed, but in the ensuing discussion Fraser said that the appropriation bills would be deferred as often as they were presented. On 6 November Kerr again saw Fraser in a final attempt to see whether he was prepared to consider a late half-Senate election as Whitlam had suggested. Fraser rejected any idea of such a compromise unless it were accompanied by a House of Representatives election. The Governor-General saw the Prime Minister later in the day. According to Kerr, Whitlam said he would probably advise a half-Senate election on 13 December and nothing further happened in the way of a compromise. On the same day, the Senate deferred the appropriation bills for a third time. Any suggestion by the Governor-General to

Fraser that the Opposition should not persist in this attitude would not only have fallen on deaf ears but, as he saw it, would have involved him in taking sides in what was obviously a partisan political situation. Did Sir John Kerr act prematurely? The claim that Kerr acted prematurely because some members of the Opposition were likely to abandon their resistance was a crucial claim — if the Opposition ceased to be united against the Labor budget, this would have ended the impasse, by bringing over the votes of Opposition senators in support of appropriations to the government. [page 442] According to Hanks Australian Constitutional Law: There are good reasons to suppose that supply would have been passed by the Senate before the end of November (when the government’s money would have run out). It is notorious that some Opposition senators were preparing to vote for supply when the Governor-General intervened.17

It was far from obvious in 1975 that the Opposition would weaken in its resolve, and credible evidence to this effect is lacking. Malcolm Fraser repeatedly affirmed both publicly and in conversations with the Governor-General that the Opposition would be relentless in pursuing its objective. Whether alternative funding might have been available It was generally accepted that beyond 30 November, unless alternative sources of finance came to the rescue, funding would not be lawfully available to meet the government’s financial commitments which included the payment of salaries of public servants and members of the armed forces. A crisis of unprecedented proportion would have resulted.18 On 21 October in a discussion with the Prime Minister, the GovernorGeneral said that he thought there was a serious political crisis. Gough Whitlam said that even if money were to run out he had a solution available with the help of the banks, which would enable him to carry on. The Prime Minister

indicated that loans from the banks would be backed by a Commonwealth guarantee, but later the banks were asked to provide credit without guarantees. It would not be possible for the executive government to give a guarantee because it is a matter for Parliament alone to provide the necessary funds to repay the loans and the accruing interest by appropriation [page 443] under s 81 of the Constitution. The executive government cannot tie the hands of Parliament. Kerr became aware that the Solicitor-General Maurice Byers and the Attorney-General Keppel Enderby had given an opinion which supported the government’s proposed course of action. After requesting a copy of the opinion, he eventually received from the Attorney-General as background a document called a Draft Joint Opinion. Enderby said it contained Byers’ own views subject to final discussions between him and the Attorney-General. It advised that the government’s scheme would survive a legal and constitutional challenge because no money was to be withdrawn from the Treasury. The advice did not address the question that ultimately the banks would have to be repaid and this could only be done by parliamentary appropriations. The draft opinion also expressed the view that public servants could assign arrears of pay by way of mortgage and that the scheme would be largely applicable to members of the armed forces and the police forces. It seemed to Kerr that the banks would receive different legal advice. They would be entering uncharted waters, and before providing financial accommodation on such an enormous scale they would need an assurance of eventual repayment. Another unknown factor was what the situation would be if resort to a half-Senate election failed to produce a result favourable to the government. On 10 November the Commercial Banking Company of Sydney informed the Treasurer that the bank was not prepared to accede to the Whitlam scheme. It appears unrealistic to expect that any lawful alternative domestic or foreign source of funding could have been secured.

Did the Governor-General have a reserve power to dismiss the Whitlam Government? The Solicitor-General’s opinion given to the Governor-General by the AttorneyGeneral, Keppel Enderby, stated that the rarity of forced dissolutions and the long years since exercise of these powers cast doubt [page 444] upon the present existence of these powers to dismiss the government. It is an opinion which would now receive little support and it failed to take into account much available evidence to the contrary. In Freedom and Order, Canadian Senator Eugene Forsey wrote in reference to the position in Britain: Among writers on the Constitution, Austen, Hearn, Todd, Dicey, Anson, Low, Marriott, Keith and Ramsay Muir, have all emphatically asserted the existence of a reserve power; Keith, indeed, devoted a large part of his later works to discussing it, and elaborating his celebrated theory of the Crown as guardian of the Constitution. Lowell, Jenks, Jennings, Chalmers and Asquith and even Laski, all admit a greater or less degree of such power. Dr Evatt, who speaks with particular authority, as a former judge of the Australian High Court, a former Commonwealth Minister of External Affairs, and Attorney-General, as the present leader of the Australian Labor Party, and as a distinguished writer on the Constitution, has devoted a whole book to explaining the nature and necessity of the reserve power.19

Forsey was referring to H V Evatt’s book, The King and His Dominion Governors,20 which dealt with the question of reserve power by reference to situations in England and the self-governing dominions including Australia, and the occasion on which the Governor of New South Wales dismissed the Lang Labor Government at the height of the Depression in the 1930s. Evatt wrote that it was abundantly clear that the Crown should, upon some given occasion or crisis, exercise a reserve power in relation to dissolution or dismissal.21 Apart from the Solicitor-General’s opinion, few writers would rule out the existence of the reserve powers on which Kerr relied. [page 445]

The Governor-General’s failure to give advance notice to Gough Whitlam Did the Governor-General’s failure to give advance notice to Whitlam of his intention to dismiss him deprive Whitlam of a final opportunity to make alternative suggestions? According to the widely respected political journalist Alan Reid, Whitlam might well have asked the Governor-General to hold or withdraw the verbal dismissal on 11 November and hold back the letter of dismissal until he had consulted with his Cabinet. In light of the serious view that the Governor-General took of the supply position, Whitlam arguably could have discussed with his Cabinet the merits of accepting Fraser’s compromise offer.22 That Kerr should explicitly warn Whitlam before terminating his commission was also part of the advice that High Court Justice Sir Anthony Mason gave to Kerr when consulted in anticipation of the dismissal.23 On 11 November Sir John Kerr’s position as to timing was as follows: •

He had no doubt that the banks would not provide the necessary funding to enable the Prime Minister to seek resolution of the impasse by resort to a half-Senate election.

•

It could not be predicted that a half-Senate election would result in favour of the government and in any case the result would be too late as the financial crisis was about to occur.

•

Whitlam had repeatedly advised him and stated in public and in Parliament that the Governor-General had to rely on his advice and the only advice was that there should be a half-Senate election.

•

Those who were of opinion that he would be acting prematurely failed to recognise the dire consequences which could result if Whitlam had his way. The growing crisis had been discussed at length in almost every conceivable forum. That the Governor-General had a reserve power of dismissal would [page 446]

have been known to Whitlam, even if Kerr’s exercise of the reserve power may have been a shock. The key players knew the stakes for which they were playing. Nonetheless, given that on 6 November Whitlam had told Kerr he would probably seek a half-Senate election on 13 November, at the point where Kerr thought it might be necessary to invoke the reserve power of dismissal instead of accept that advice, the candour that should be expected between a GovernorGeneral and their Prime Minister would have required Kerr to inform Whitlam accordingly. The Governor-General’s failure to give Whitlam a final opportunity to reconsider and avoid dismissal no doubt arose due to Kerr’s belief in Whitlam’s intransigence. No matter how well founded this belief may have been, though, it was unfortunate that the Governor-General proceeded to dismiss the Prime Minister without expressly putting to the Prime Minister what action the Governor-General was considering taking. Nonetheless, this lack of candour does not impact on the legality of the Governor-General’s exercise of the reserve power in 1975, although Professor Lindell has suggested that if the same situation were to arise today a failure to warn might be unlawful.24 Whether the Governor-General acted prematurely out of selfinterest Did the Governor-General act prematurely and keep Whitlam in the dark for fear that the Prime Minister might have his own appointment terminated? This was undoubtedly a factor in the timing of Kerr’s decision. It was also a belief held within the ranks of the Opposition, but as described above he had already reached his decision independently of it. In Matters for Judgment, Kerr gave an account of the vital conversation with Whitlam on 11 November. At the outset, before the Prime Minister had an opportunity to say anything, Kerr recounted a telephone conversation with Whitlam earlier in the day. He said that Whitlam had then informed him [page 447] that talks with leaders on the other side had failed to produce any change and

that he intended to govern without parliamentary supply. He then said that because Whitlam had failed to obtain supply and was not prepared to go to the people he had decided to withdraw his commission. According to the GovernorGeneral: Things then happened as I had foreseen. Mr Whitlam jumped up … said sharply ‘I must get in touch with the Palace at once’. He did not interpret what I had so far said as an actual withdrawal of his commission and indeed it was not. He still had time in which to act; and he made it obvious that his action would be: not to seek to discuss with me any change of attitude, not to seek to go to the people in an election as Prime Minister, but to move at once for my dismissal by so advising the Queen … I therefore made my final decision to withdraw his commission and hand him the signed documents. He could still have said ‘let us talk about this. If you are determined to have an election, I would rather go to the people myself as Prime Minister’. Had he done so I would have agreed provided he committed himself by action there and then. I was not prepared to run any further risk. When he said, ‘I must get in touch with the Palace at once’, I replied, ‘It is too late’. He said, ‘why?’ and I told him, ‘because you are no longer Prime Minister’ ... I said, ‘We shall all have to live with this’. Mr Whitlam replied ‘You certainly will’.25

Whitlam’s version of this conversation differed from Kerr’s, but the key issue for present purposes relates to the possibility of Whitlam advising the Queen to dismiss Kerr. There was speculation in various quarters that the Queen would not have acted at once if Whitlam had advised her he wanted the GovernorGeneral to be dismissed immediately, but the Palace has never made any comment about the matter. Since the Queen makes appointments of the Governor-General in conformity with the advice of the Australian Prime Minister at the time she could have acted at once on his advice for a dismissal without any reference to her own ministers. Had it happened, the Governor of New South Wales (as the longest-serving [page 448] State Governor) would have performed the role of Governor-General as Administrator pending the appointment of a successor. What that person or a successor Governor-General might have done almost defies imagination. Whether the Governor-General misled his advisors The criticism is that the Governor-General received advice not only from the

Prime Minister but also from the Treasurer, Attorney-General and SolicitorGeneral but misleadingly he had failed to indicate he was not prepared to act in conformity with it. The assumption of the criticism is that although the office of Governor-General is placed outside politics under s 61 of the Constitution, nevertheless Kerr having been faced with a political crisis was not entitled to remain silent and had an obligation to make known to the Prime Minister and others how his thinking was developing. It is not consistent with the office of Governor-General as the neutral head of the executive government acting in the name of the Queen that the incumbent should have such an obligation. Even so, as early as 29 September before the crisis came to issue, the Governor-General asked Whitlam whether he thought that Fraser would grant him temporary supply until after a half-Senate election. Whitlam’s response was that he intended to destroy forever the power of the Senate to refuse supply. The Governor-General questioned whether that was the wisest course and suggested it may be better to go to an election, even if he were to lose. Kerr’s view was that this was as far as he could go as Governor-General in the exercise of a right to advise and warn, but Whitlam rejected the approach. On 18 October, when Gough Whitlam informed Sir John Kerr of his intention to govern without supply and to break the power of the Senate to force the Lower House to an election, the Governor-General responded that he could only do so by getting a constitutional amendment or by breaking Fraser. According to Kerr, Whitlam’s response was that he could not get a constitutional amendment but he could and would break Fraser.26 [page 449] On 6 November, Treasurer Bill Hayden handed the Governor-General a document prepared for his information which outlined the scheme for arranging to have the banks cover the lack of supply, which it was then thought would occur towards the end of November. The scheme required an appropriation by Parliament to meet the interest liability of the government in respect of loans made by the banks. Although he had doubts about the legality of the scheme,

the Governor-General did not discuss the legal and constitutional issues with Hayden. On the same day the Attorney-General, Keppel Enderby, handed Kerr the document not signed either by himself or the Solicitor-General but headed ‘Joint Opinion’, to which Enderby added the word draft. This was in response to the Governor-General’s request to Whitlam on 21 October to have access to the Solicitor-General’s opinion. Kerr did not meet with the Solicitor-General until after the double dissolution. Enderby said at the time that the document was furnished as background. It did not seek any response and the GovernorGeneral offered none. In the case of the Prime Minister, it has been suggested above that the Governor-General should have displayed greater candour about the potential that the Prime Minister’s advice would be refused. Beyond that, however, it is hard to see why Kerr was under any obligation to actually dispute the gratuitous advice of the Treasurer, Attorney-General or Solicitor-General. In any event, the central question into which all this advice merely fed was that relating to the election, a matter which could not have been discussed with anyone other than the Prime Minister. Should Kerr have secretly sought advice from High Court Justices? The claim is that Kerr should not secretly have sought advice from Sir Garfield Barwick, Chief Justice of the High Court, nor from Sir Anthony Mason, a Justice of the High Court, and neither should have given the advice they did. The Governor-General requested a copy of the Solicitor-General’s opinion on the question of reserve powers so that he could ascertain where the [page 450] government stood in relation to the role of the Governor-General. The draft joint opinion he was given argued limitations on the role of the GovernorGeneral without acknowledging arguments to the contrary. Independent legal

advice to the Governor-General could present a very different picture, yet Whitlam repeatedly informed Kerr that he was not free to have access to alternative sources of advice. At short notice, Kerr decided to seek advice from Sir Garfield Barwick and Sir Anthony Mason, without consulting Whitlam. His action in so doing was open to the criticism that the Chief Justice had been a prominent member of the former government now in opposition and therefore that he should not have acceded to Kerr’s request. No such political taint concerned Mason J; but the problem of consulting a sitting Justice (or Chief Justice) of the High Court is that it could lead to a conflict of interest in later litigation, and that it can impair the public’s perception of the institutional impartiality of the court. For this reason, admittedly with the benefit of hindsight, almost all commentators now favour the view that neither Mason nor Barwick should have agreed to advise the Governor-General. In 1914 the Governor-General Munro-Ferguson consulted the Chief Justice of the High Court, Sir Samuel Griffith, at the request of Prime Minister Cook for the first double dissolution of Parliament under s 57. Indeed, there was a long history of Governors-General obtaining advice from judges.27 Apparently the previous Governor-General, Sir Paul Hasluck, had made known his view that a Governor-General was not to be restrained from seeking authoritative outside advice when he had doubts about the advice he was receiving from the government. There are no legal advisers to whom the Governor-General can turn in any institutionalised way, as Kerr observed. Indeed, Kerr told Mason J that Whitlam had refused him access to Barwick CJ. Kerr’s action in approaching the Chief Justice and Mason J, and the willingness of the two Justices to oblige, are undoubtedly regarded as controversial in hindsight. In fact, there is no shortage of academics, [page 451] retired judges and practising lawyers who would be willing to offer advice to the Governor-General, albeit on an informal basis. The source of Kerr’s advice does not affect the legality or otherwise of his final decision, although

(notwithstanding the precedent for such advice being sought and given on previous occasions) it reflects on the judgment of all three who were involved. Whether the Governor-General acted as a lawyer with little regard for democratic principles The criticism was that in entering the political controversy the GovernorGeneral acted as a lawyer and paid insufficient regard to democratic principles when the Whitlam Government had a clear majority in the House of Representatives but was simply the victim of obstruction by a Senate divided on party lines. The Governor-General’s decision to dismiss Whitlam was the action of a lawyer, but it was made only after he had formed an unequivocal view about the likely dramatic economic and political consequences of the government’s attempt to resolve the financial crisis in its own way. The framers of the Constitution created the Senate as a democratic institution which could provide a brake on the legislative ambitions of the Lower House in the interests of maintaining the federal compact. The fact that it has operated almost purely on party political lines since the early years of federation offers support for the view that its success in bringing about the Whitlam Government’s dismissal was undemocratic, but this was not the fault of the Governor-General. His view was that in dissolving Parliament under s 57 of the Constitution he was acting democratically because it allowed the electors to pass judgment. ‘The government was not equally responsible to both the Senate and the House of Representatives’ Geoffrey Sawer was a leading advocate of this view. He commented that it was fallacious to assert equal responsibilities and to maintain that the denial of supply by the Senate was sufficient to justify the dismissal. However, Kerr [page 452] did not think that the denial of supply by itself was sufficient to act at once and he did not do this.

It is a truism that governments are formed by the political party or coalition which gains victory at the elections for the House of Representatives. The Prime Minister has always been a member of the House of Representatives and most ministers are appointed from that House. While accepting that Sawer was right that there is no responsibility owed to the Senate in the sense that the government owes it to the House of Representatives, the analysis is incomplete. Given that the Senate has the legal power to deny supply, the further question is the extent to which the Senate has a responsibility to the House of Representatives in considering whether to defer or reject supply in a highly charged political situation. That was the question facing Sir John Kerr and that is why he acted only after events which proved to be intractable had unfolded.

Concluding observations It is remarkable that the supply crisis of 1975 only resolved itself so quickly (with the passing of the budget bills) because, having been dismissed, Whitlam returned to have lunch at the Lodge, and informed many of his closest advisers and confidantes. What none of the people who knew of the dismissal thought to do was inform the Labor senators. Accordingly, when the Senate resumed, both Labor and conservative senators supported the passage of the supply bills, resolving the supply crisis, and paving the way for the dissolution of both Houses of Parliament later that afternoon. Matters could have proceeded differently had the Labor senators been warned they were no longer in government but in fact were in opposition. Although Fraser had a majority in the Senate, Labor could at least have stalled matters, delaying the passage of supply, forcing the Governor-General to delay dissolving both Houses, which could have bought time for other political machinations. Although Labor could probably have done nothing more than delay the inevitable, it is a sobering thought that the dismissal need not have resolved the supply crisis as quickly as it did. [page 453]

There is no doubt in the mind of this author that Sir John Kerr was unfairly pilloried. He was thrust into a situation not of his making. Whitlam was unwilling to resort to a double dissolution, in all probability because he sensed that the government’s popularity had declined to the point that it would not be returned at a general election. Fraser on the other hand was confident of being a winner at a general election and he was not prepared to surrender that advantage. Neither was prepared to compromise even in the face of the supply crisis, leaving Kerr in an invidious position. Of course, it is easy to understand Gough Whitlam’s indignation at the way he was driven from office. At the height of the crisis, Kerr was heard to say that ‘when I make my decision I could become a lonely man’ — and such was the case. The founders intended that the Commonwealth and the states be equal parties under the federal compact and, almost without exception, the founders did not think that the cost of the Commonwealth would be huge. Sir Samuel Griffith famously speculated during the 1891 Convention that the annual cost of the Commonwealth would be less than the price of a dog licence per head of population. Instead, the Commonwealth has emerged as the outright dominant legislative and financial force in the federation, its budget many times greater than any state budget, and relied upon by the states for the bulk of their revenue. There is an obvious need for any federal government enjoying the confidence of the House of Representatives to have control of its annual budget, but the power given to the Senate under s 53 can prevent this from happening. Whatever criticism is made of the manner in which the Governor-General exercised his authority, there is no clear proof that he acted beyond the powers vested in him by Ch II of the Constitution. Few topics excite such a diverse range of opinions amongst those interested in law and politics in Australia. The chief source of debate is less the dry constitutional question of whether the reserve power of dismissal exists (most public lawyers admit that it does, at least in extreme cases), but whether the circumstances in which the Governor-General invoked it justify its exercise. Had every possible [page 454]

alternative been exhausted, and all possible time been given for a solution to be found? A consensus on these points is unlikely ever to be reached. The foregoing saga showed that a double dissolution pursuant to s 57, in the absence of special circumstances, is not suited to dealing with a major financial crisis. It takes about five months from the Senate first rejecting or failing to pass a bill to the time when the issue can be resolved, if at all, by the next Parliament after a double dissolution. In 1975 it was fortuitous that Mr Fraser could take advantage of the fact that the Opposition in the Senate had previously twice rejected 21 bills passed by the House of Representatives — otherwise the double dissolution that led to the change of government could not have been invoked when it was. A Senate closely divided politically will likely continue to be a feature of the Australian Parliament, contrary to the expectations of the founders. In view of the extent of the Commonwealth’s fiscal responsibilities, it might be argued that the Senate should not exercise the power to reject appropriation bills. The evolution of a constitutional convention could achieve such a result. The safer course is to have a constitutional amendment restricting the Senate’s power of veto to a suspensory veto, for example, of 30 days. The veto would extend to bills appropriating money for the ordinary annual services of the government and could also extend to bills providing for the imposition, assessment and collection of a tax. This would be overwhelmingly in the interests of responsible and stable government. Unfortunately, as this author has written:28 Referendums to change the Constitution usually fail. Irrespective of their merits they have invariably failed when not supported by the major parties in the Australian Parliament and even then success is not assured … Any proposed change perceived to weaken Senate power and influence is bound to create controversy in Canberra. Beyond Canberra, in the States, such an occasion would give rise to impassioned pleas about the true nature of the federal compact and the threat which Canberra offers to it.

1. 2.

Appropriation Bills (Nos 1 and 2) 1975–76. A motion in the Senate stated that the measures should not proceed further until the government agreed to submit itself to a general election. (1932) 46 CLR 155; 5 ALJ 433.

3. 4.

5. 6. 7.

8. 9. 10. 11.

12. 13. 14.

15. 16.

17. 18.

19. 20. 21.

22. 23. 24.

G Williams, S Brennan and A Lynch, Blackshield and Williams Australian Constitutional Law and Theory: Commentary and Materials, 6th ed, Federation Press, Sydney, 2014, 10.15–10.16. J Clarke, P Keyzer and J Stellios, Hanks Australian Constitutional Law: Materials and Commentary, 8th ed, LexisNexis Butterworths, Sydney, 2009, pp 1052–1062. In the 9th edition of the text, the commentary on the dismissal of the Whitlam Government has been reduced to additional materials available online. See (viewed 29 June 2016). L J M Cooray, Conventions, the Australian Constitution and the Future, Legal Books, Sydney, 1979. J Kerr, Matters for Judgment: An Autobiography, MacMillan, Melbourne, 1978. G Sawer, Federation Under Strain: Australia, 1972–1975, Melbourne University Press, Melbourne, 1977. The title is somewhat puzzling since the states were not affected in any constitutional sense by the Canberra controversy. Sawer, note 7 above, p 172. In a memorandum of advice, Barwick CJ in substance endorsed the Governor-General’s action. ‘Letter from the Queen’s Private Secretary’: (viewed 29 June 2016). The six bills rejected by the Senate, providing grounds for granting the double dissolution, were passed at the first and only joint sitting convened by the Governor-General under s 57 of the Constitution after the elections that returned the government. Commonwealth, Parliamentary Debates, Senate, 18 June 1970, 2647 (Lionel Murphy). Commonwealth, Parliamentary Debates, House of Representatives, 25 August 1970, 2647 (Gough Whitlam). J R Odgers, Australian Senate Practice, 5th ed, Australian Government Publishing Service, Canberra, 1976, p 61. It was not until several years later that a clerk of the House of Representatives produced an equivalent publication. E Forsey, The Royal Power of Dissolution of Parliament in the British Commonwealth, Oxford University Press, Toronto, 1968. In a letter to Sir John Kerr in 1976, Senator Forsey wrote that Professor Richardson’s article on the Senate power in respect of money bills seemed to him ‘to dispose completely of the contention that the Senate had no right to reject supply’: J E Richardson, ‘The Legislative Power of the Senate in Respect of Money Bills’ (1976) 50 Australian Law Journal 273, p 285. Clarke et al, note 4 above, 1058. Kerr was aware from discussions in Parliament, confirmed by the Treasurer Bill Hayden, that almost 60 per cent of the government’s committed expenditure was already covered by special appropriations and 40 per cent was to be financed by the blocked appropriation bills which, besides salaries and allowances, covered many other ordinary annual services, capital works and payments to the states. E Forsey, Freedom and Order, McClelland and Stewart, Toronto, 1974, p 37. H V Evatt, The King and His Dominion Governors, 2nd ed, Frank Cass, London, 1967. Evatt, note 20 above, p 268. Evatt conceded that the precise dimensions of the reserve power were uncertain, and for this reason he argued (at p 306) that it would be preferable if the reserve powers could be codified. A Reid, The Whitlam Venture, Hill of Content, Melbourne, 1976, p 413. Remarkably, Sir Anthony Mason’s involvement in the events of 1975 was not publicly confirmed by him until 2012. G Lindell, ‘Judicial Review and the Dismissal of an Elected Government in 1975: Then and Now?’

25. 26. 27. 28.

(2014) 38(2) Australian Bar Review 118, pp 128, 137. Kerr, note 6 above, pp 358–9. Kerr, note 6 above, pp 263–4. See A Twomey, ‘Legal Advice by Judges on the Exercise of Reserve Powers’ (2016) Public Law 285. J Richardson, ‘Resolving Deadlocks in the Australian Parliament’ in G Lindell and B Bennett (eds), Parliament: The Vision in Hindsight, Federation Press, Sydney, 2001, 291, pp 320–1.

[page 455]

Chapter 31

Exercise and Scrutiny of Executive Power Sources of executive powers By far the greatest source of executive power in Australia are laws passed by the Commonwealth Parliament. The executive government also has prerogative powers which do not depend on the authority of statute, as Chapter 29 examined. Some other powers are expressly given in the Constitution. Specific executive powers Several sections of the Constitution enable the Governor-General to perform executive acts which would otherwise have vested in him as part of the prerogative: for example, the prorogation of Parliament and dissolution of the House of Representatives under s 5, the granting of double dissolutions under s 57, the appointment of ministers of state under s 64, and the command of the defence forces under s 68. Where the Constitution assigns to the Governor-General the power to undertake a particular action, whether it is vested in the Governor-General alone or must be exercised with the advice of the Federal Executive Council, Parliament cannot deprive the Governor-General of the power. For example, s 72 states that Justices of the High Court and other federal courts shall be appointed by the Governor-General in Council. Parliament cannot vest that power in some other authority, because the power is conferred by the Constitution itself which is superior to an Act of the Parliament. Normally, of course, the Governor-General will act on the advice of the Executive

[page 456] Council. To ignore such advice could have severe consequences for the ability of the government to carry on its normal functions.1 It would also follow from the opinion just expressed that the GovernorGeneral could not be restrained in the exercise of powers specifically vested in him or her by royal instructions, nor of the powers of the Queen referred to the Governor-General under s 2 of the Constitution. Further, Parliament could not attach conditions to the exercise of the specific powers, at least not conditions that go beyond procedural aspects and derogate from the substance of the power. If the foregoing views are accepted, a question arises: if the Parliament cannot abrogate or fetter the Governor-General’s specific powers, how is this to be reconciled with s 61, vesting the executive power of the Commonwealth in the Queen and making it exercisable by the Governor-General as her representative? The High Court has held that the section is subject to the exercise of legislative power of the Parliament,2 and hence the Governor-General as the Queen’s representative must observe any conditions which Parliament may impose, which includes the abrogation of a prerogative power. The answer may lie in reading the specific powers given to the Governor-General by other sections of the Constitution as constituting exceptions to s 61.3 To the extent that those specific powers authorise actions which might otherwise have come within the Queen’s prerogative, they no longer belong to the prerogative, because they have been displaced by the relevant constitutional provisions, and the Queen has no functions in relation to them. Section 61 incorporates the prerogative powers of the Crown (other than those that have been absorbed by the sections giving specific powers to the Governor-General) subject to their displacement by Parliament. But since the executive power under s 61 is vested in the Queen and not the Governor-General, it remains possible for the Queen herself, [page 457]

acting on the advice of the Executive Council, to exercise the executive power of the Commonwealth. There is therefore no inconsistency with the views expressed about the specific powers of the Governor-General. Execution of the laws of the Commonwealth After more than a century of federation, the scope and limits of the executive power of the Commonwealth are still to be fully determined. In 1901 Quick and Garran stated4 that s 61 meant that administrative acts must be done by and in the name of the Crown, and for many years it has been normal for an Act of Parliament to vest execution of its provisions in the Governor-General. In 1923 in R v Macfarlane; Ex parte O’Flanagan,5 it was argued for two Irish men before the High Court that s 8A of the Immigration Act 1920 (Cth) empowering a minister to order deportation of undesirable migrants on the recommendation of a board appointed by the minister was invalid, because it vested a portion of the executive power of the Commonwealth in the minister and the board. The court rejected the argument. Knox CJ stated that the argument would, ‘if carried to its logical conclusion, deny to Parliament the power to provide by legislation for the performance of any ministerial act by any person but the Governor-General’.6 Since 1900 there has been a very substantial growth in the use of statutory authorities to carry on functions of government in their own names without reference to the Crown, and the court has not seen in principle any violation of s 61. Administrative Arrangements Orders made by the Governor-General in Council allocate Acts creating statutory authorities, depending on their substance, to appropriate departments and in this way a link is provided with the minister in charge of the department to whom the authority must answer. [page 458] Statutory authorities vary considerably in the extent to which they must answer to the minister in carrying out their activities, ranging from very extensive independence to close ministerial control. It may be that the

Governor-General’s role in the execution of a Commonwealth Act should be understood not as necessitating his or her involvement through ministers and other officers of the public service when an authority carries out its statutory functions, but as requiring that the minister retains sufficient authority to ensure, so far as it is within the executive power so to do, that the Act is administered in accordance with the intention of Parliament. This may be done in various ways. For example, it is common practice for an Act to authorise the Governor-General to make regulations to carry out its provisions. In practice, the Governor-General’s personal involvement consists of assenting to the regulations that have been prepared for him or her. In Chapter 24, dealing with Commonwealth–State relations, there are many examples of the states carrying on executive functions on behalf of the Commonwealth, and these continue to grow in number as the Commonwealth assumes responsibilities over areas of government which were once primarily the preserve of the states, such as health and education. There is an unanswered question as to how far Commonwealth executive powers under Commonwealth–State arrangements can be delegated to state Governors to carry out before s 61 is breached.7 Maintenance of the Constitution In the Communist Party case in 1951, Dixon J propounded a view that the Commonwealth Parliament had an implied power under the Constitution [page 459] to protect existing forms of Federal Government against subversion.8 In the same case Fullagar J, quoting observations of Rich J in a previous decision, stated that it was impossible to doubt the legislative power to prohibit activity advocating the overthrow of the Constitution or the established government of the Commonwealth by force or violence.9 The implication derives from s 51(xxxix) of the Constitution, which includes matters incidental to the execution of powers vested by the Constitution in the organs of government.

Apart from this, s 61 expressly provides that the executive power extends to the maintenance of the Constitution.

The power to enter into contracts A couple of early cases suggested that the Crown did not have the capacity to enter into contracts in the absence of statutory authority. In Commonwealth v Colonial Combing, Spinning and Weaving Co Ltd10 the High Court examined agreements entered into by the executive government with a company which manufactured and sold wooltops. Under the agreements, the company either sold wooltops with Commonwealth permission for a share of the profits, or carried on its manufacturing business as agent for the Commonwealth, for a consideration. The court held that, apart from authority conferred by legislation, the executive government could neither make nor ratify any of the agreements.11 A factor of some influence in the case was that the agreements required appropriation of funds by Parliament to make them fully effective. [page 460] However in 1934 the High Court unanimously decided in New South Wales v Bardolph12 that the Crown had a power independent of statute to enter into binding contracts. Although the contract in that case had to be regarded as containing an implied condition that payments under it by the Crown were to be made only out of moneys available under parliamentary appropriation, the condition did not affect the contract’s validity. Dixon J said: It is a function of the Executive, not of Parliament, to make contracts on behalf of the Crown. The Crown’s advisers are answerable politically to Parliament for their acts in making contracts. Parliament is considered to retain the power of enforcing the responsibility of the Administration by means of its control over the expenditure of public moneys. But the principles of responsible government do not disable the Executive from acting without the prior approval of Parliament, nor from contracting for the expenditure of moneys conditionally upon appropriation by Parliament and doing so before funds to answer the expenditure have actually been made legally available.13

In the same case, Rich J went no further than to state that the Crown had a power independent of statute to enter into such contracts as were ‘incidental to

the ordinary and well-recognised functions of Government’.14 For some time afterwards, a view persisted that parliamentary sanction has to be sought for extraordinary Crown contracts involving the grant by the Commonwealth of financial benefits or proprietary rights or for the payment to it of moneys by the other contracting party. One problem with this approach is that to distinguish between ordinary and extraordinary functions of government is not an appropriate role for the courts and it assumes that the role of executive government is static when it is not. Functions that may not have been ordinary in 1934 had become commonplace by the 21st century. As described in Chapter 29, in 2009 [page 461] in Pape v Commissioner of Taxation,15 the court held that the executive government could, under the cover of a parliamentary appropriation, validly decide that the national economy needed financial stimulation because of a global financial crisis adversely affecting Australia. This justified unprecedented action by the executive in making cash payments to individual taxpayers from the federal revenues. Even in 2009 the government’s action could be classified as extraordinary, yet it was held to be valid because of the effect of changed circumstances on the scope of executive power. The case seemed to have settled the question of disbursements in favour of the executive corresponding to Dixon J’s judgment in Bardolph’s case, which seemed to have settled the question of contract.16 The prerogatives of the Crown are confined to those things in respect of which the sovereign enjoys pre-eminence. The power of the Crown to enter into contracts lies outside the prerogatives. Entry into a contract is an ordinary exercise of the executive power of the Commonwealth. In Bardolph’s case, Evatt J said: The general capacity of the Crown to enter into a contract should be regarded from the same point of view as the capacity of the King would be by the Courts of common law. No doubt the King had special powers, privileges, immunities and prerogatives. But he never seems to have been regarded as being less powerful to enter into contracts than one of his subjects.17

In 1975 in Johnson v Kent,18 Barwick CJ said that unless its powers to do so had been reduced by statute, when the executive entered upon Commonwealth lands and constructed facilities, it did so by virtue of the prerogative and not by virtue of proprietorship in the lands. The four other members of the High Court agreed with him. The decision is out of line with [page 462] Evatt’s analysis in Bardolph and other authorities. Even if it were by virtue of the prerogative that the Commonwealth should enter its own land and undertake activities, for example, to create parks and gardens, it would only be performing an activity which an ordinary landowner could undertake; availing itself thus of the prerogative does not mean it may not also do so as a proprietor. Johnson v Kent involved the power of the Commonwealth to erect a communications tower on Black Mountain in the Australian Capital Territory; there was no statute restricting its power to do so and the court upheld the Commonwealth’s power. Both in England and Australia there are cases in which judges have said that the government has an inherent power as a juristic person to carry out any activity in which a private person can engage. In an early Australian case, Clough v Leahy,19 the High Court held that a commission of inquiry established by the federal executive was lawful. According to Griffith CJ, every person had a right to make an inquiry, provided it did not interfere with other private rights, and such a right could not be denied to the Crown.20 That principle can be applied to officials of the government making inquiries into day-to-day matters, for example, whether someone has trespassed on Commonwealth land. However, in the case of a commission of inquiry formally established by Parliament, the view of High Court judges who have considered the issue more recently has been that it must serve a purpose of the Commonwealth,21 however liberally that expression is interpreted. Doubts remain as to the precise position of the Crown as a juristic person. Actions of the Crown as a juristic person can differ from actions of a private

person who does not possess powers unique to the Crown. Obviously the Commonwealth cannot be equated to a private person, because of its governmental powers, including the power to compel its subjects. For example, if it proposes to buy properties in pursuance of a [page 463] policy to protect the environment it may compulsorily acquire them from reluctant property owners under s 51(xxxi) of the Constitution, at a price which amounts to just terms. The Commonwealth may do a variety of things that private citizens may do. For example, it may inquire as to whether someone has trespassed on its land and take legal action to enforce its rights. On the other hand, the executive government is in some ways more limited than an individual in what it may do because the Constitution fetters it, and while, for example, the Commonwealth may acquire property like an ordinary person, it may only use the property for purposes of the Commonwealth. It is restricted further as to the source of funds it may employ to buy the property. The expenditure must be covered by an appropriation of funds by Parliament. The ability of the Commonwealth to enter into contracts (along with its ability to spend money) has been significantly fettered by the effect of the decisions in Williams v Commonwealth22 and Williams v Commonwealth (No 2).23 It appears that the Commonwealth may now enter into contracts only where it has legislative authority to do so, where authority may be implied under the nationhood limb of s 61 (as in Pape’s case), or where the contract relates to carrying out the ordinary and well recognised functions of government.

Agreement by the executive government to fetter administrative discretion The question of the extent to which the Crown may restrict the future exercise of discretionary powers by undertaking contractual obligations has not

effectively been settled. In England, in Rederiaktiebolaget Amphitrite v R,24 it was held that the British Government’s wartime undertaking to the owners of a neutral ship, that it would not be detained in a British port if it carried a specified cargo, was not enforceable in a court of law. Rowlatt J said ‘it is not competent for [page 464] the Government to fetter its future executive action, which must necessarily be determined by the needs of the community when the question arises’.25 In South Australia v Commonwealth26 in 1962 Dixon CJ quoted views expressed by Sir William Harrison Moore who, after stating that a court would not take cognisance of agreements when the subject of mutual undertakings was the exercise of political power, wrote in reference to such agreements: [T]he Agreements are not such as are capable of existing between individuals, their subject-matter is the peculiar and exclusive characteristic of governments. Even an agreement of the Crown with an individual respecting the future exercise of discretionary powers — that they will or will not be exercised in a certain way — probably cannot be a valid contract.27

In 1975, the case of Cudgen Rutile (No 2) Pty Ltd v Chalk28 went to the Privy Council on appeal from the Supreme Court of Queensland. The appellant company alleged the existence of a contract between it and a Queensland minister to grant it a special minerals lease. Under Queensland mining Acts there were specified procedures relating to matters such as prospecting for minerals culminating in a discretionary power vested in the minister to grant a special minerals lease. The Privy Council held that the freedom of the minister or officer of the Crown who was responsible for implementing the Act to make decisions or use discretions could not validly be fettered by anticipatory action. No purported agreement could give rise to any enforceable contractual obligation. In delivering the judgment of the Privy Council, Lord Wilberforce said: When a statute, regulating the disposal of Crown lands, or of an interest in them, prescribes a mode of exercise of the statutory power, that mode must

[page 465] be followed and observed: and if it contemplates the making of decisions, or the use of discretions, at particular stages of the statutory process, those decisions must be made, and discretions used, at the stages laid down. From this in turn it must follow that the freedom of the Minister or officer of the Crown responsible for implementing the statute to make his decisions, or use his discretions, cannot validly be fettered by anticipatory action …29

Thus, as there are English and Australian precedents in which agreements entered by the Crown were found not to be legally binding, when the Crown enters into a contract sometimes a question must arise as to whether the parties are bound. The Amphitrite case could be regarded as exceptional on the ground that it was not intended that the agreement in it give rise to contractual rights and obligations, because it arose out of a wartime situation involving Britain. And it may be that if the subject of the Crown’s commitment in a contract involves a restraint on the exercise of discretionary powers which are purely governmental in character, a court could hold that such an arrangement was so far removed from the ordinary subject matters of contract that the Crown could not legally bind itself. By such means the cases which held that the Crown was not bound might be distinguished from circumstances in which the Commonwealth is acting like an ordinary person, for example, when it enters into a contract to purchase goods over a specified period of time, it should be quite valid for it to enter in a binding restriction not to buy from anyone else during the term of the contract. In practice the Commonwealth routinely purports to bind itself in contracts that limit the future options of functionaries of the Crown in ordinary ways. If a litigant were to argue that no obligation resulted, the court would presumably have to find grounds of some sort for distinguishing the cases that came to such conclusions. [page 466]

Exclusion of the states from executive power

It is apparent that the executive power of the Commonwealth described in Ch II of the Constitution is exclusive of the states. For example, a state could not claim that its constitutional powers allowed it, in its own right, to share in the maintenance of laws of the Commonwealth under s 61 or in respect of legislative powers vested exclusively in the Federal Parliament. While a few of the Commonwealth’s legislative powers are exclusive to it, most are not. A question may therefore arise as to the extent to which the states may, independently of the Commonwealth, share in the exercise of the prerogative powers of the Crown. The defence power under s 51(vi) of the Constitution is not expressed to be exclusive of state legislative power, and the only express restrictions upon a state power in relation to defence are in s 114, which provides that a state may not raise or maintain a naval or military force without the consent of the Federal Parliament. Notwithstanding, in Joseph v Colonial Treasurer (NSW),30 the High Court held that the royal prerogative as to war, so far as the Commonwealth or any state was concerned, could only be exercised by the Governor-General, and thus not by a state. A similar situation applied with respect to the external affairs power in s 51(xxix). In the Seas and Submerged Lands case,31 the High Court held that the states had not at any time gained international legal personality, that any rights Australia obtained under international law were possessed by the Commonwealth to their exclusion, and that they had no share in the exercise of the Crown’s prerogatives.

Executive accountability As explained in Chapter 3, the constitutional framers were of a single mind to establish the Westminster system of responsible government which all [page 467] their colonial constitutions incorporated. As Gaudron, Gummow and Hayne JJ explained in Egan v Willis: A system of responsible government traditionally has been considered to encompass “the means by which Parliament brings the Executive to account” so that “the Executive’s primary responsibility in

its prosecution of government is owed to Parliament”.32

Parliamentary mechanisms for the control of the executive government were addressed in Chapters 8, 9 and 10. This chapter focuses on extra-parliamentary accountability mechanisms. The first Commonwealth Public Service Act in 1902 created a single commissioner and established a permanent head of each department to advise the minister on all matters relating to the department. Until the Act became law, the appointment of federal public servants was vested in the Governor-General in Council under s 67 of the Constitution. The Act created a public service consisting primarily of officers with secure tenure until they reached the age of 65. There were four divisions: permanent heads and chief officers, a professional division, a clerical division and a general division. Most officers belonged to the clerical and general divisions. The Act also provided for temporary employment as a subsidiary means of enabling a department to carry out its functions. Within a department all members of the public service were responsible to the permanent head and required to carry out their duties on a confidential basis. The permanent head’s responsibilities were only to the minister, who was answerable to Parliament. There was no direct accountability to the community. In 1922 a new Act replaced the 1902 Act. It created a new divisional structure, but made no change to the anonymity in which the functions of government were carried on within a department. The position remained substantially unchanged until the 1970s. [page 468] By 1970, mainly as a result of the factors described in Chapter 12, the Australian federation, while still patterned according to the Westminster system, had lost much of its resemblance to the character it manifested in the years before World War II. The Commonwealth had assumed a range of functions beyond the imagination of most of the founders, to meet increasing expectations from a community grown prosperous and multicultural. Different segments of the community had different demands and there was a growing emphasis on the

rights of the individual. This placed the traditional institutions of government under challenge, and the expanding Commonwealth public service was no exception. In the 1960s, during the later years of the Menzies Government, there were steadily increasing murmurings that the executive government’s isolation from public accountability was not compatible with the community outlook. People adversely affected by bureaucratic actions and decisions had few recourses to a remedy. For almost everyone, a legal challenge was too expensive to be a solution. Further, in many cases, the merits of an official action as distinct from its legal validity were not the concern of the courts. Traditionally, members of Parliament were free to undertake inquiries on behalf of dissatisfied constituents, but the cases in which the constituent gained some measure of success through complaining to a member of Parliament were few and far between. Ministerial and departmental replies to representations from private members all too frequently aimed to dispose of matters by justifying the disputed bureaucratic treatment. In 1968 the Gorton Government appointed a Commonwealth Administrative Review Committee with John Kerr as its chairman.33 In 1971 the Kerr Committee report recommended the establishment of: •

a general merits review tribunal, later to be called the Administrative Appeals Tribunal, to overview and monitor the new system;

•

a counsel for grievances, later to be called the Ombudsman; [page 469]

• •

an Administrative Review Council; and

a codified judicial review system in which official decision makers could be obliged to make a statement of findings of fact and the reasons for a decision, after which the decision could be challenged on various grounds in a specialised court. Two further committees followed: first, the Bland Committee, appointed

during the McMahon ministry, which reported to the Whitlam Government in 1973 proposing the establishment of an Ombudsman’s office; and second, the Ellicott Committee, which also reported in 1973, recommending that the government should adopt most of the Kerr Committee’s proposals. The Whitlam Government lost office before it could implement the proposals. The Whitlam Government did, however, secure the passing of the Administrative Appeals Tribunal Act 1975 (Cth). In introducing the bill, the Attorney-General, Keppel Enderby, said: The establishment of the Administrative Appeals Tribunal will be a significant milestone in the development in the administrative law of this country. It will provide an opportunity to build up a significant body of administrative law and practice of general application, as well as providing the machinery to ensure that persons are dealt with fairly and properly in their relationships with government.34

The Opposition spokesman, John Howard (then Shadow Minister for Consumer Affairs), explained that reforms to strengthen review of administrative action also had the Coalition’s support: This legislation and the companion legislation to establish the office of an Australian ombudsman are both extremely significant phases in the development within Australia not only of our administration law; they are also momentous events in the evolution of our system of government.35

[page 470] Shortly after the Labor Government lost office, under the aegis of the Attorney-General, Robert Ellicott, in the newly formed Fraser Government, Parliament passed the Ombudsman Act 1976 (Cth), and established the Administrative Review Council in accordance with Pt V of the Administrative Appeals Tribunal Act 1975 (Cth). One of the functions of the Council was (until its abolition in 2015) to keep the Commonwealth administrative law system under review and to recommend to the Attorney-General improvements that might be made to the system. In the following year, Parliament passed the Administrative Decisions (Judicial Review) Act 1977 (Cth), which introduced new procedures for judicial

review of administrative decisions made under federal laws. A person aggrieved by a decision was given a right under the Act to seek review by the Federal Court and a right to seek a written statement of reasons for the decision, including the facts on which it is based. The person may then seek review on specific grounds, including breach of the rules of natural justice, lack of jurisdiction, error of law and absence of evidence. The grounds and remedies available to a litigant challenging administrative action were broader than those offered by the previous law. To a large extent, the new system replaced the previous system in which remedies depended mostly on complicated common law writs.

Administrative Appeals Tribunal (AAT) Upon the application of a dissatisfied person, the Administrative Appeals Tribunal can review administrative decisions made by ministers, departments and other federal agencies on their merits. The AAT has similar powers to those of the official or body originally making the decision, and may take a different view of the merits of the case before it. It may substitute its own decision or vary the decision if it finds that this is preferable. In an early decision, the first president made it clear that the Tribunal should proceed cautiously before deciding not to endorse an original decision which lawfully [page 471] gave effect to a government policy, particularly one in which the policy was known to Parliament.36 The Tribunal only has jurisdiction if it is conferred by a federal Act. In the early years these were relatively few and jurisdiction did not initially extend to various Acts affecting the community at large, such as the Social Security Act 1947 (Cth). In response to a recommendation of the Administrative Review Council, the Fraser Government introduced sweeping additions to the Tribunal’s jurisdiction which enabled it to review decisions under hundreds of federal statutes, in areas including family assistance and social security, taxation, veterans’ affairs and workers’ compensation. Other areas include bankruptcy,

citizenship and immigration, corporations law, customs and freedom of information.37 The Tribunal seems to have coped well with the high volume business, avoiding for many individuals and organisations the need to seek relief through the lengthy and potentially costly process of judicial review. In 2014/15 the Tribunal finalised 6,748 applications. A total of 4,502 applications were either withdrawn, dismissed by consent, or the matter was resolved by agreement between the parties through an alternative dispute resolution process or at any stage during the review proceedings. Of the applications finalised by a decision of the Tribunal, 1,017 official decisions were affirmed and 325 were varied or set aside.38 The Tribunal is not bound by the rules of evidence applicable in a court. When it receives an application for a review of a decision, the decision maker [page 472] is required in the first instance to produce all relevant documents (known as ‘section 37 documents’). If attempts to obtain an agreed resolution fail, the matter will be listed for hearing, at which the applicant may appear in person or be represented by counsel. Where a party is not represented by counsel the Tribunal offers assistance in various ways. In the area of social security, for example, where many applications for review are made, the Tribunal works in cooperation with legal aid organisations. While the hearing lacks the formalities of a court, it is essentially adversarial. The general rule is that the parties to the proceedings bear their own costs. In a 2006 speech, then Chief Justice of the High Court, Murray Gleeson, observed: One of the characteristic features of the context in which modern administrative law functions is a change in emphasis from the duties of public officials to the rights of citizens. That change in emphasis means that the case for having the AAT, and for independent merits review of administrative decisions that are properly amenable to such review, is probably stronger now than it was in the early 1970s.39

The former Chief Justice of the High Court, and first president of the AAT,

Sir Gerard Brennan, issued a warning about another trend apparent in 2006: There is now a manifest movement towards the outsourcing of governmental functions. Powers which were once vested in offices of government administering statutes are now increasingly exercised by employees of corporations who perform governmental functions under contract. Has this removed areas of decision making from AAT review? It would be regrettable if important public functions affecting the interests of individuals are kept outside the field of decisions reviewable by the AAT. In the first place, the aspiration for individual administrative justice would be frustrated. Secondly, there would be an imbalance between judicial review and merits review. The Courts have moved towards reviewing decisions in the public

[page 473] law area even though those decisions are made by private individuals in performance of government contracts … That calls for the vesting of new powers in the AAT.40

The impact of the privatisation of government functions has challenged all areas of administrative law, including the Commonwealth Ombudsman.

The Commonwealth Ombudsman The institution of ombudsman originated in Sweden in 1809. It was not until 1919 that a second country, Finland, appointed an ombudsman and it was only from 1955 that many European countries followed suit. In 1962 New Zealand became the first English-speaking country to appoint an ombudsman by legislation owing little to the Swedish model. In Australia, the Commonwealth Ombudsman was established by the Ombudsman Act 1976 (Cth). The Act was modelled on the New Zealand Act, as were all the respective Ombudsman Acts of the states.41 The Whitlam Government had intended to set up an Ombudsman office, but a bill to do so lapsed after the dissolution of the Parliament in 1975. On the initiative of the Attorney-General of the newly elected Fraser Government, Robert Ellicott, Parliament passed the Ombudsman Act 1976 (Cth). The Act was similar in substance to the bill which lapsed in 1975. In announcing the appointment of the first Ombudsman (Professor Jack Richardson) in the House of Representatives, Prime Minister Fraser stated: ‘The establishment of the office

is directed towards ensuring that departments and authorities are responsible, adaptive and sensitive to the needs of citizens.’42 The Act gave the Ombudsman two major roles, which remain the central activities of the Ombudsman today. The first is, upon receipt of a complaint [page 474] from a member of the public or a group or organisation, to investigate action relating to a matter of administration by a federal department or Commonwealth agency established for a public purpose under a federal enactment (a ‘prescribed authority’). The power does not extend to actions of a minister, but it covers advice given to a minister. An Ombudsman’s investigation is directed towards determining whether the action complained about amounts to some form of defective administration, for example, was unlawful, unreasonable, unjust, oppressive or improperly discriminatory, factually deficient or ‘in all the circumstances, wrong’. The second basic role of the Ombudsman is, on his or her own motion, to investigate an action by a department or prescribed authority. In the early years of the office, because of the volume of complaints the Ombudsman had little opportunity to undertake inquiries of this nature. More recently, own motion inquiries have assumed a greater importance in the work of the Ombudsman. Unlike the Administrative Appeals Tribunal, the Ombudsman has no power to make an order against the department or agency. Where there is a finding of defective administration, the Ombudsman recommends to the department or agency that it take some form of remedial action, which could range from an apology to the complainant to a reversal or variation of its action, or the award of monetary compensation. If the agency declines to take appropriate action on the Ombudsman’s report to it, the Ombudsman may present a report to the Prime Minister. The relationship between the Prime Minister and the Ombudsman can be a critical factor in the standing of the Ombudsman in bureaucratic circles and the

effectiveness of the Ombudsman office. Some Prime Ministers have been more committed than others to the institution. If the Prime Minister is unwilling or unable to take appropriate action on the Ombudsman’s report, the Ombudsman may make a special report to Parliament. Occasionally an attempt has been made to invoke Parliament’s support, but this has been without any notable success. It is fair comment to say Parliament has let the office down in contrast to some offices in other jurisdictions such as Sweden. [page 475] Additional specialist roles have accrued to the Ombudsman in subsequent years: •

1982: responsibility for complaints about freedom of information;

•

1983: Defence Force Ombudsman, to deal with complaints by serving and former members of the Australian Defence Force relating to their service;

•

1995: Taxation Ombudsman;

•

2005: Immigration Ombudsman;

•

2005: complaints against Commonwealth service providers;

•

2006: Postal Industry Ombudsman — handling complaints about Australia Post and certain private postal operators;

•

2006: compliance auditing: inspecting records of selected law enforcement and regulatory agencies such as the Australian Federal Police and the Australian Crime Commission to ensure compliance with the legislative requirements applicable to them; and

•

2006: Law Enforcement Ombudsman — to handle complaints about the conduct and practices of the Australian Federal Police and its members. The intention of nominating the ombudsman also as the Taxation Ombudsman, Immigration Ombudsman and Postal Industry Ombudsman is to

provide special procedures to deal with complaints against the agencies that operate in these areas. The Ombudsman first received power to investigate complaints against the Australian Federal Police in 1981. More recent amendments have given the Ombudsman additional roles in connection with the Federal Police and the Australian Crime Commission. It seems likely that the Ombudsman will receive further functions as the Commonwealth Government engages in new activities in response to the ever-growing demands and needs from the community. It is important that accretions to the role should not overwhelm the office to the extent of impairing its primary role of investigating complaints and conducting inquiries on its own motion. [page 476] Features of the Ombudsman’s operations The Ombudsman Act 1976 (Cth) provided that complaints had to be in writing, and investigated formally in accordance with specified procedures. The first Commonwealth Ombudsman instituted a procedure new to the modern world of receiving and recording complaints made orally to his offices in Canberra and the other capital cities, and taking them up with the agencies concerned on an informal footing to provide for their resolution without resort to formal investigation. Legally speaking they were preliminary inquiries with potential to be followed by action on written complaints. With few exceptions, agencies chose to cooperate rather than be involved in a full investigation and the practice produced results, which led to a high degree of satisfaction amongst complainants. An amendment to the Act in 1983 gave statutory recognition to the oral complaint procedure. Almost all complaints, including written complaints, are handled without resort to the formal investigation procedures of the Act. Nevertheless, the Ombudsman is armed with a formidable list of compulsory powers including powers to examine witnesses and to enter premises. The Ombudsman has a discretion not to investigate a complaint on various grounds, for example, that the complainant does not have a sufficient interest in

the subject of the complaint or has not first taken up the complaint with the department or prescribed authority. Where a complainant has a cause of action in a court or statutory tribunal, the Ombudsman may decide not to investigate if it would be reasonable for the complainant to exercise the right of action elsewhere. The Ombudsman’s services are provided without charge. The inquiry must be even handed without favouring either the complainant or the agency. Unlike a court or tribunal which makes decisions on the basis of the evidence it hears in proceedings, the Ombudsman has to make inquiries and ferret out relevant information before reaching a conclusion. There is no room for a passive holder of the office. An Ombudsman needs an inquiring mind. [page 477] The Commonwealth Ombudsman collaborates with state counterpart ombudsmen or parliamentary commissioners with regard to complaints which may involve either or both the Commonwealth and the states. In 1977/78 the first Ombudsman received about 2,700 complaints. In the following year the office received 2,700 written complaints and about 4,000 oral complaints. By 1983 oral complaints exceeded 10,000 annually with written complaints running in the vicinity of 9,000. In 1995/96 complaints numbered about 20,000 and there were another 22,000 inquiries. In 1996/97, the office received about 24,000 complaints and handled 25,000 inquiries. After 20 years the office had received a total of around 300,000 complaints. Some approaches concern agencies outside the Ombudsman’s jurisdiction or are not complaints. In 2008/09, of about 45,000 approaches to the Ombudsman’s office, some 19,500 were complaints which fell within the Ombudsman’s jurisdiction. About 18,500 of these involved central government departments and prescribed authorities. Others were about the Federal Police, private postal operators and ACT Government agencies. Of the 18,500, around 8,000 were resolved without inquiry. The Ombudsman exercised the discretion not to investigate some, for specified reasons, for example, where there were

virtually no prospects of a successful outcome for the complainant. The great bulk, however, were referred to the relevant department or prescribed authority to process under their own complaint handling procedures. A further 4,500 were handled without contacting the relevant agency, for a variety of reasons including the need for further research or additional information from the complainant. In the upshot, the office undertook and completed its own investigations in about 5,000 cases. This is significantly fewer than the almost 8,000 complaints referred to the relevant department or prescribed authority without further involvement of the Ombudsman. Reliance on departments and prescribed authorities to handle matters themselves had risen to a far higher level than in the first 30 years of the [page 478] office’s operations. This change is largely because over the years following the first Ombudsman’s decision to deal directly with agencies that were the subject of oral complaints, the agencies became accustomed under service charters to handle the complaints referred to them by the Ombudsman according to standards acceptable to the Ombudsman’s office. In 2008/09 the Ombudsman was able to report that surveys initiated by his office revealed general satisfaction of complainants. What was not yet known was how many who had their complaints referred to an agency to handle by itself were unsatisfied by the outcome but chose not to bring the complaint back to the Ombudsman’s office for further action. Direct involvement of agencies has been cost effective for both the Ombudsman and the agencies. There has been a further advantage that the office has had the resources to conduct inquiries on its own motion which have resulted in improving levels of efficiency in the public service through the identification of systemic shortcomings.43 Nevertheless the primary role of the office is to investigate complaints from the public. Unlike tribunals such as the Administrative Appeals Tribunal, the Ombudsman operates in personam and the

strength of the institution largely rests on the holder of the office at the time. In 2001 former Prime Minister Malcolm Fraser nominated the institution of the Administrative Appeals Tribunal and the Ombudsman as the most important reforms introduced by his government. In 2007, former Chief Justice Sir Anthony Mason commented: With the advantage of hindsight, I think Mr Fraser was right in ranking the AAT and the Ombudsman as the most important of the reforms. Merits review is now an established feature of the administrative law scene and it has contributed more to administrative justice than any other reform, with the possible exception of the Ombudsman … The success and scope

[page 479] of the Ombudsman’s activities have exceeded my expectations. They are due, I think, to the fact that the Ombudsman is responsible to Parliament (not to Government) and to the high quality and work of those who have been appointed to that office.44

Australian Human Rights Commission In 1986 during the Hawke Government, Parliament passed the Australian Human Rights Commission Act, setting up the Commission (then called the Human Rights and Equal Opportunity Commission) with functions relating to eight international instruments to which Australia was party. The principal one is the International Covenant on Civil and Political Rights. The Commission now has functions under the following Acts: •

Age Discrimination Act 2004 (Cth) — to ensure that people are not treated less favourably on the grounds of age in various areas of public life;

•

Disability Discrimination Act 1992 (Cth) — to eliminate discrimination against people with disabilities and to promote community recognition and acceptance that these people have the same fundamental rights as the rest of the community;

•

Racial Discrimination Act 1975 (Cth) — to give effect to Australia’s obligations under the International Convention on the Elimination of

All Forms of Racial Discrimination; and •

Sex Discrimination Act 1984 (Cth) — primarily to give effect to Australia’s obligations under the Convention on the Elimination of All Forms of Discrimination Against Women. The Commission has a president and seven other commissioners: the Disability Discrimination Commissioner, the Race Discrimination Commissioner, the Aboriginal and Torres Strait Islander Social Justice [page 480] Commissioner, the Children’s Commissioner, the Sex Discrimination Commissioner, the Age Discrimination Commissioner and the Human Rights Commissioner. Broadly speaking, the Commission has two major areas of activities. The first is the handling of complaints arising under the legislation, which may be made by any member of the public, about private individuals and private and government organisations, especially in their respective capacities as employers. The other is to take a leadership role in helping all members of the Australian community to understand and exercise their rights and to respect the rights of others. From a small beginning, the number of inquiries and complaints made to the Commission has increased considerably. The Commission reported that in 2014/15 it had responded to 20,020 inquiries and received 2,388 complaints.45 Complaints must be in writing and are handled without charge to the complainant. Like the Ombudsman, the Commission must handle its complaints as an impartial evaluator. The Commission does not have compulsory statutory powers to resolve complaints, and must do so by getting the parties together and seeking settlement through conciliation. In 2014/15, 72 per cent of finalised complaints were successfully conciliated — a good result given the Commission’s limited ongoing powers where conciliation fails. Outcomes vary depending on the

complaint but can include an apology, compensation for lost wages or the introduction of anti-discrimination training and practical changes to the provision of services and facilities. If a complaint of unlawful race, sex, disability or age discrimination cannot be resolved through conciliation, the complaint is terminated. The complainant may apply to have the matter heard and determined by the Federal Court or the Federal Circuit Court, however this can be very expensive and not always feasible for complainants. Where a complaint about a breach of human rights or about discrimination under [page 481] the Australian Human Rights Commission Act 1986 (Cth) has not been resolved, the president of the Commission may report the Commission’s findings to the Attorney-General for tabling in Parliament, but this rarely occurs.

The Australian Information Commissioner The Privacy Act 1988 (Cth) established the Australian Privacy Commission as an independent government agency. The Act gave effect to two Australian international commitments.46 Its principal objectives were protection of personal information in the possession of federal departments and agencies and safeguards for the collection and use of tax file numbers. A further objective was to create public awareness of privacy rights. Subsequent additions to the Privacy Commissioner’s charter included a legislative amendment in 2000 to extend the original Act to most information possessed by private sector organisations.47 The Privacy Commission’s operations were designed to ensure observance of what are now known as the Australian Privacy Principles. The Privacy Commission issued guidelines to assist private sector organisations to abide by the principles in their handling of personal information.48 Any member of the public who believes that an agency or organisation

covered by the Act has mishandled personal information contained in a record may complain in writing. The office generally requires a complainant to have first complained to the agency or organisation. Complaints are handled free of charge and generally resolved through conciliation. [page 482] The Privacy Act provides protection of people’s ‘personal information’, defined as: … information or an opinion about an identified individual, or an individual who is reasonably identifiable: (a) whether the information or opinion is true or not; and (b) whether the information or opinion is recorded in a material form or not.49

The Act gives the Commissioner wide-ranging powers to examine witnesses, obtain information, examine documents, call compulsory conferences, make determinations similar to court orders declaring conduct to be an interference with privacy and ordering the payment of compensation, and to report to the agency, minister, complainant and, if necessary, both Houses of Parliament. While the Act does not oblige the Privacy Commissioner to deal with complaints through conciliation, this is the normal way in which the office conducts its proceedings. According to the office, resolution of the complaint could include an apology, a change to the respondent’s practices or procedures, staff counseling and taking steps to address the matter. For many years it was said with a degree of truth that an Englishman’s home was his castle. A comment in the same vein could be made about an Australian’s right of privacy in the earlier years of the last century, but over the last 50 years the substance of the right to privacy has largely evaporated. Amazing developments in information technology have accompanied the flooding of the entire community with programs constantly exploiting information about private lives, and the activities of an avidly competing print media. Expansion in the range of governmental functions of an executive character, state and federal, has imposed intrusions and growing obligations to respond on some sectors of

the community. Commercial and financial operators frequently demand more information of a personal [page 483] nature from their customers. The ever-expanding role of the internet and social media has also contributed to reducing what the right of privacy protects, leaving a mere rump. The Australian Information Commissioner Act 2010 (Cth) established the office of the Australian Information Commission and vested privacy functions under the Privacy Act 1988 in a new official, the Australian Information Commissioner. There are two supporting commissioners, one being the Privacy Commissioner who retains his or her role under the Privacy Act. In 2014/15, the Commission, in its privacy protection role, answered 13,229 telephone inquiries and 2,925 written inquiries, 73 per cent of which related to the Australian Privacy Principles (APPs). The most frequently discussed issues in 2014/15 were the use and disclosure of personal information, access to personal information and APP exemptions.

Freedom of Information The Freedom of Information Act 1982 (Cth) was a major step in making the federal executive government more accountable to the public. It created a right of access to information in documentary form in the possession of federal departments and public authorities and their ministers. Complete exemptions from the Act covered the Auditor-General, the Australian Government Solicitor, the Australian Secret Intelligence Service (ASIS), the Australian Security Intelligence Organisation (ASIO), the Office of National Assessments, and the Aboriginal Land Councils and Land Trusts. The list of exempt organisations is contained in Sch 2 to the Freedom of Information Act. The Act included an extensive list of documents protected from disclosure, which it describes as ‘exempt documents’. For example, certain Cabinet

documents are exempt from disclosure. Internal working documents, the disclosure of which would be contrary to the public interest, are also exempt. So are documents the disclosure of which affects personal privacy, legal professional privilege, business affairs, the national economy, and relations [page 484] with and between the states, and documents containing material that has been obtained in confidence. A member of the public making an application initially had to pay a fee, although this is no longer required. The subject agency has a limited time in which to respond. Agencies are entitled to charge for the work involved in meeting the request on an hourly or copy basis fixed by regulations. If an application to grant access to a document is refused, the applicant can seek internal review of the decision by the agency. Rights of appeal were created for applicants who remained dissatisfied. Other consequences for a government agency after revealing a document included the possibility of legal proceedings against the agency, for example, for a breach of contract or statutory duties. Politicians and the media became frequent users of the new system, sometimes to gain a political advantage, and especially in the case of the press, to arouse the interest of the reading public when applications brought to light shortcomings on the part of government agencies. Unfortunately, ordinary members of the public were all too frequently deterred by the prospect of an agency levying substantial charges to deal with an application. Government agencies frequently refused to disclose on the ground that the documents sought were working documents. Conclusive certificates issued by ministers were used to prevent production of documents on specified grounds, for example, that they related to Cabinet decisions and discussions, or were of significance to national security, or adversely affected the Commonwealth’s relations with the states. By the early years of the current century, it was apparent that the 1982 Act was falling short of its objectives in catering for a society that had become more demanding in its expectations of government

performance. The Australian Information Commissioner Act 2010 (Cth), which came into operation on 1 November 2010, changed the way information held by government agencies is to be managed and accessed by the public. The Act states that its objects are to give the Australian community access to information held by Federal Government agencies by requiring agencies to [page 485] publish the information and providing for a right of access to documents. It stated that Parliament intended to promote Australia’s representative democracy by encouraging increased participation in government processes and significantly that it was Parliament’s intention that information held by the government be managed for public purposes and treated as a national resource. The Act, 168 pages long, established the new office of the Australian Information Commissioner, with a Freedom of Information Commissioner in a supporting role. The existing office of Privacy Commissioner also became part of the new office. Agencies and ministers are required to use their best endeavours to assist the Information Commissioner to make the correct or preferable decision in handling requests for information from members of the public. Conclusive certificates issued by ministers were abolished. A major change was to subject a significant number of the exemptions stated in the Freedom of Information Act to a new single public interest test weighted towards disclosure. All application fees, including fees for internal review where an applicant is dissatisfied by an adverse decision, have been abolished. The substantial decision-making charges imposed under the original Act have been reduced. Previously these charges strongly inhibited persons wishing to seek disclosure. Agencies can be required to publish on their websites details of information released in response to requests. Applicants who wish to have an access decision reviewed can seek internal review by the agency or go directly to the Information Commissioner. An applicant who disagrees with the Commissioner’s decision can apply to the Administrative Appeals Tribunal for review. An applicant will

not bear an onus of proof in review either by the Information Commissioner or the Administrative Appeals Tribunal. In an Information Commissioner review the agency or minister must establish that the decision to withhold information is justified. More time will be needed to tell whether the new arrangements will have their full impact on a federal bureaucracy which has been resistant to change in a culture of non-accountability to the general public. In one respect, the [page 486] prospects are not good. The Abbott Liberal Government announced in its 2014 Budget an intention to abolish the Office of the Australian Information Commissioner. However, legislation to do so failed to pass the Parliament. The government instead drastically cut back funding for the Office at the end of 2014. However, relying on its statutory mandate, the Office has doggedly struggled on, and the government has reinstated a portion of its former funding. It is clear, however, that it is the privacy functions that the Abbott–Turnbull Governments have most strongly supported, and not those associated with freedom of information or information disclosure.

Accountability of executive government in the states None of the states has kept pace with the Commonwealth in making the executive government accountable to the public as well as to Parliament, although some have progressed further than others. All except Tasmania preceded the Commonwealth in creating the institution of Ombudsman, called the Parliamentary Commissioner in Western Australia, to receive and investigate complaints from the public about defective administration by state authorities. All except Tasmania now have Administrative Tribunals of broad jurisdiction, more or less comparable with the Administrative Appeals Tribunal of the Commonwealth,50 and Queensland has its Judicial Review Act 1991. All states also have freedom of information legislation.

Although the challenges are not as great as for the Commonwealth to achieve public exposure of the actions of the executive government, they do exist in the states and much more remains to be done.

1. 2. 3. 4. 5. 6. 7.

8. 9. 10. 11.

12. 13. 14. 15. 16.

17.

Mostly likely, in these circumstances, the Queen would also be advised to terminate the GovernorGeneral’s appointment under s 2 of the Constitution. See, for example, Barton v Commonwealth (1974) 131 CLR 477 at 498; 3 ALR 70 at 86. Professor Zines discusses the question in L Zines, The High Court and the Constitution, 6th ed, Federation Press, Sydney, 2008, pp 404–10. J Quick and R Garran, The Annotated Constitution of the Australian Commonwealth, Angus & Robertson, Sydney, 1901, p 702. (1923) 32 CLR 518; 29 ALR 353. (1923) 32 CLR 518 at 533; 29 ALR 353 at 360. The report of a Senate Select Committee on Off-Shore Petroleum Resources expressed serious reservations as to whether the Petroleum (Submerged Lands) Act 1967 (Cth), which restricted the Governor-General to making arrangements with the Governor of a state for the exercise of Commonwealth functions under the Act, satisfied s 61. The Committee considered that the Act failed to provide effective safeguards for federal ministerial responsibility: see Senate Select Committee on Off-Shore Petroleum Resources, Parliament of Australia, Report from the Senate Select Committee on Off-Shore Petroleum Resources (1971), vol 1, pp 166–9. Australian Communist Party v Commonwealth (1951) 83 CLR 1 at 187–8; [1951] ALR 129 at 169 (Communist Party case). (1951) 83 CLR 1 at 259; [1951] ALR 129 at 213 per Fullagar J quoting R v Hush; Ex parte Devanny (1932) 48 CLR 487 at 506 per Rich J. (1922) 31 CLR 421; 29 ALR 138 (Wooltops case). In Commonwealth v Australian Commonwealth Shipping Board (1926) 39 CLR 1 at 10; 33 ALR 61 at 64, Knox CJ, Gavan Duffy, Rich and Starke JJ stated that it was impossible to say that an activity unwarranted in express terms by the Constitution could nevertheless be vested in the executive. Robert Garran, as the Solicitor-General for the Commonwealth, also expressed the view to the Royal Commission of the Constitution, which reported in 1929, that the executive government of the Commonwealth did not have power under s 61 to enter into contracts in the absence of statutory support. (1934) 52 CLR 455; [1935] ALR 22 (Bardolph’s case). (1934) 52 CLR 455 at 509; [1935] ALR 22 at 42. (1934) 52 CLR 455 at 496; [1935] ALR 22 at 36. (2009) 238 CLR 1; 257 ALR 1; [2009] HCA 23. For further criticisms of the distinction between ordinary and extraordinary functions of government, expressed independently of Pape’s case, see L Zines, The High Court and the Constitution, 5th ed, Federation Press, Sydney, 2008, pp 349–51. (1934) 52 CLR 455 at 474–5. This passage is omitted from the report that appears in [1935] ALR 22.

18. 19. 20. 21. 22. 23. 24. 25. 26. 27.

28. 29. 30. 31. 32.

33.

34. 35. 36.

37.

38. 39. 40. 41.

(1975) 132 CLR 164 at 169; 5 ALR 201 at 203. (1904) 2 CLR 139; 11 ALR 32. A much more recent case in England, R v Secretary of State for Health; Ex parte C [2000] HRLR 400, adopted a similar view. See, for example, Victoria v Australian Building Construction Employees and Builders Labourers’ Federation (1982) 152 CLR 25 at 155–6; (1982) 41 ALR 71 at 167–8 per Brennan J. (2012) 248 CLR 156; 288 ALR 410; [2012] HCA 23. (2014) 252 CLR 416; 309 ALR 41; [2014] HCA 23. (1921) 3 KB 500 (Amphitrite). (1921) 3 KB 500 at 503. (1962) 108 CLR 130; [1962] ALR 547. (1962) 108 CLR 130 at 140–1; [1962] ALR 547 at 548–9 quoting Sir William Harrison Moore, ‘The Federation and Suits between Governments’ (1935) 17(4) Journal of Comparative Legislation 163, pp 186–7. [1975] AC 520; (1974) 4 ALR 438. [1975] AC 520 at 533; (1974) 4 ALR 438 at 444, citing the judgment of Isaacs, Gavan Duffy and Rich JJ in Watson’s Bay and South Shore Ferry Co Ltd v Whitfeld (1919) 27 CLR 268. (1918) 25 CLR 32; 24 ALR 185. (1975) 135 CLR 337; 8 ALR 1. (1998) 195 CLR 424 at 451; 158 ALR 527 at 539–40 quoting D Kinley, ‘Governmental Accountability in Australia and the United Kingdom’ (1995) 18 University of New South Wales Law Journal 409, p 411. The other members of the Committee were Professor Harry Whitmore (a leading academic administrative lawyer), Anthony Mason QC (Commonwealth Solicitor-General, later Chief Justice of Australia) and R J Ellicott QC (later Attorney-General and Justice of the Federal Court). Commonwealth, Parliamentary Debates, House of Representatives, 6 March 1975, p 1188. Commonwealth, Parliamentary Debates, House of Representatives, 14 May 1975, p 2278. Re Drake and Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634. Sir Gerard Brennan, later Chief Justice of the High Court, was the foundation president of the AAT. There was some criticism that proceedings before him were conducted in a formal curial atmosphere, but he was concerned that the institution should become respected in its formative years for its even-handed and objective approach to the parties. The AAT consists of the president (who must be a Federal Court judge), presidential members (who are Federal Court or Family Court judges), deputy presidents, senior members and members. As at 30 June 2015 there were 79 full-time and part-time members. From 1 July 2015, the AAT has eight divisions: Freedom of Information, General, Migration and Refugee, National Disability Insurance Scheme, Security, Social Services and Child Support, Taxation and Commercial, and Veterans’ Appeals. Administrative Appeals Tribunal, Annual Report 2014/15 (viewed 1 July 2016). Chief Justice Murray Gleeson, ‘Outcome, Process and the Rule of Law’ (speech delivered at the Administrative Appeals Tribunal 30th anniversary dinner, Canberra, 2 August 2006). Sir Gerard Brennan (speech delivered at the Administrative Appeals Tribunal 30th anniversary dinner, Canberra, 2 August 2006). Western Australia was the first state to appoint an Ombudsman, known as the Parliamentary

42. 43.

44. 45.

46.

47. 48.

49. 50.

Commissioner for Administrative Investigation, under the Parliamentary Commissioner Act 1971 (WA). By 1974, every state had an Ombudsman. Commonwealth, Parliamentary Debates, House of Representatives, 17 March 1977, p 317. In 2007, for example, 247 cases of actions by the Department of Immigration were referred to the Ombudsman, who in a report identified a systemic tendency in the Department to subordinate human rights considerations to current policies. The Secretary of the Department accepted reforms recommended by the Ombudsman. Sir Anthony Mason, ‘The Kerr Report of 1971: Its Continuing Significance’ (speech delivered at the Inaugural Whitmore Lecture, Sydney, 19 September 2007). Australian Human Rights Commission, Annual Report 2014/15 (viewed 1 July 2016). One was for the Protection of Privacy and Transborder Flows of Personal Data adopted by the Organisation for Economic Cooperation and Development. The other was under Art 17 of the International Covenant on Civil and Political Rights. Privacy Amendment (Private Sector) Act 2000 (Cth). After this Act came into operation, the Privacy Commissioner ceased to be a member of the Australian Human Rights Commission. The Act applies to businesses and non-government organisations with an annual turnover greater than $3 million. It also applies to private schools if they have an annual turnover more than $3 million or provide a health service. Subject agencies include credit providers handling personal credit file information. Privacy Act 1988 (Cth) s 6. 482 Administrative Decisions Tribunal Act 1997 (NSW), Queensland Civil and Administrative Tribunal Act 2009 (Qld), South Australian Civil and Administrative Tribunal Act 2013 (SA), Victorian Civil and Administrative Tribunal Act 1998 (Vic), State Administrative Tribunal Act 2004 (WA).

[page 487]

Part Seven Rights and the Future

[page 489]

Chapter 32

Constitutional Rights The participants in the Convention Debates in the 1890s were well aware that the United States Constitution contained a Bill of Rights, being the first 10 Amendments. The Tasmanian delegate Andrew Inglis Clark, to whom the Convention of 1891 was indebted for the production of a draft federal Constitution, sought to include a clause based on the American equal protection and due process clause contained in the Fourteenth Amendment. The Convention ultimately rejected the proposal. The adoption of the Westminster parliamentary system by each of the colonies was enough to rule out the inclusion of a comprehensive set of constitutional rights vested in individuals. Nonetheless, the Constitution does contain some limited rights. Scattered clauses have the effect of offering specific protections to individuals: •

section 51(xxiiiA) limiting the Commonwealth’s power over medical and dental services by providing that it does not ‘authorize any form of civil conscription’;

•

section 51(xxxi) requiring the Commonwealth to provide just terms when it acquires property from any state or person;

•

section 80 providing that trial on indictment of an offence against a Commonwealth law must be by jury;

•

section 92 requiring that trade, commerce and intercourse be ‘absolutely free’ (see Chapter 23);

•

section 116 prohibiting the Commonwealth from making any law establishing a religion, imposing any religious observance or for prohibiting the free exercise of any religion; and

[page 490] •

section 117 providing that a resident of one state shall not be subject in any other state to any disability or discrimination which would not be applicable to him if he were a resident of the other state. More recently, the High Court has also developed two implied political rights or freedoms — a freedom of political communication and a right to vote — based on the words ‘directly chosen by the people’ contained in ss 7 and 24 of the Constitution, and the principles of representative government to which the Constitution gives effect.

Implied freedom of political communication In 1992, when Sir Anthony Mason was Chief Justice, the High Court by majority held in Australian Capital Television Pty Ltd v Commonwealth1 that there was an implied freedom of political communication in the Constitution arising from the principles of representative and responsible government. An amendment to the Broadcasting Act 1942 (Cth) prohibited radio or television broadcasting of particular material during election periods, including political advertisements. The court held that the legislation was invalid. In a decision heard and handed down at the same time, Nationwide News Pty Ltd v Wills,2 the High Court held invalid provisions of the Industrial Relations Act 1988 (Cth) which made it an offence to use words calculated to bring a member of the Industrial Relations Commission into disrepute. Nationwide News had published an article written by Maxwell Newton attacking the integrity and independence of the Industrial Relations Commission. The reasoning of Brennan, Deane, Toohey and Gaudron JJ was based on their acceptance of the proposition that the system of representative government specified in the Constitution gave rise to an implication that it was necessary to protect public discussion of political and economic affairs. The freedom of the media to comment at large on the behaviour of politicians made possible by the Nationwide News decision reached its

[page 491] pinnacle in 1994 in Theophanous v Herald and Weekly Times Ltd?3 The defendant newspaper published a letter accusing the plaintiff, who was a member of the House of Representatives and Chairman of a Joint Parliamentary Committee on Migration, of being biased towards Greek immigrants and ‘idiotic’. In a four to three decision, Mason CJ, Deane, Toohey and Gaudron JJ held in favour of the newspaper. Their Honours held that the freedom of political communication implied in the Constitution meant that publication would not be actionable under the law relating to defamation if the defendant established that it was unaware of the falsity of the published material, did not publish the material recklessly, and the publication was reasonable in the circumstances. The three strongly dissenting judges were Brennan, Dawson and McHugh JJ. In Stephens v Western Australian Newspapers Ltd,4 decided shortly after Theophanous, the plaintiff, a member of the Legislative Council of Western Australia, had taken an overseas study trip at taxpayers’ expense. The defendant newspaper published articles stating that the plaintiff and other members of the Legislative Council had gone overseas without the knowledge of the Parliament on ‘a junket of mammoth proportions’. A majority of four High Court judges held that, by implication, the Commonwealth Constitution and the Constitution Act 1889 (WA) authorised criticism of the conduct, performance and fitness for office of a member of Parliament. This application of the implied freedom to the government of the states has been affirmed in later cases.5 The court considered another action for defamation in 1997 in Lange v Australian Broadcasting Corporation.6 The plaintiff David Lange was Prime Minister of New Zealand between 1984 and August 1989. On 30 April 1989, ABC broadcast a ‘Four Corners’ program which, according to Lange, conveyed imputations that he was guilty of abuse of public office [page 492]

and was unfit to hold public office. The ABC’s principal defence was that the publication was made pursuant to a freedom guaranteed by the Commonwealth Constitution in the course of discussion of government and political matters. In a unanimous decision, the High Court held that as long as a law was reasonably appropriate and adapted to achieving an end compatible with the implied constitutional object, it would not be invalidated. The court then held that, as a general rule, a defendant’s conduct in publishing defamatory material will not be reasonable unless the defendant had reasonable grounds for believing the defamatory imputation was true, took proper steps so far as they were reasonably open to verify the accuracy of the material, and did not believe the imputation to be untrue. The court added: [T]he Constitution gives effect to the institution of “representative government” only to the extent that the text and structure of the Constitution establish it. In other words, to say that the Constitution gives effect to representative government is a shorthand way of saying that the Constitution provides for that form of representative government which is to be found in the relevant sections. Under the Constitution, the relevant question is not, “What is required by representative and responsible government?” It is “What do the terms and structure of the Constitution prohibit, authorise or require?”.7

The court remitted the matter to the Supreme Court of New South Wales. Mr Lange’s claim was later settled out of court.8 [page 493]

After the Lange decision In Langer v Commonwealth,9 decided shortly after Lange, a well-known political activist sued the Commonwealth and the Australian Electoral Commission claiming that s 329A of the Commonwealth Electoral Act 1918 (Cth) was invalid because it impaired the freedom of political communication implied in the Constitution. The section stated that, upon pain of committing a criminal offence, a person must not publish material with the intention of encouraging persons voting at a House of Representatives election to fill in a ballot paper otherwise than in accordance with s 240 of the Act. Section 240 prescribed a method of full preferential voting. Langer sought to encourage voters not to

comply with s 240 in filling in their ballot papers, and to vote informally or in such a way that their ballot papers were exhausted earlier than those of other voters. The court held in a five to one decision that the provision did not breach the implied freedom of political communication. Section 240 could reasonably be regarded as prescribing a method of freely choosing representatives, and s 329A was appropriate and adapted to prevent the subversion of that method. The Lange decision came before the court again in 2004 in Coleman v Power.10 The appellant Coleman had been convicted under s 7(1)(d) of the Vagrants, Gaming and Other Offences Act 1931 (Qld) for using threatening, abusing or insulting words in a public place, which were said in this instance to a police officer. He was distributing in a mall pamphlets containing allegations of corruption against several police officers. The Lange test of invalidity was stated by Gummow and Hayne JJ as follows: First, does the law effectively burden freedom of communication about government or political matters either in its terms, operation or effect? Second, if the law effectively burdens that freedom, is the law reasonably appropriate and adapted to serve a legitimate end the fulfillment of which is [page 494] compatible with the maintenance of the constitutionally prescribed system of representative and responsible government ...?11

By a margin of four to three, the court invalidated the law as impermissibly burdening political communication. The reasoning of the Justices was widely different; Callinan J (in dissent) memorably pondered why the effective operation of the Constitution’s system of representative government required that no law prevent ‘people go[ing] about insulting or abusing one another in or about public places’.12 Not all cases have been so controversial. In Mulholland v Australian Electoral Commission in 2004,13 provisions of the Commonwealth Electoral Act were challenged. One required parties to have at least 500 members in order to be registered under the Act (unless they were represented in Parliament). Another stated that two or more parties could not rely on the same person as a member in calculating the number of their members (the no overlap rule). The significance of these rules arose because only a registered party was entitled to list

its name on the ballot paper with the name of its candidate(s). The provisions were found to be valid: for five judges because there was no burden on political communication, and for two because the burden was appropriate and adapted to pursuing a legitimate end. In 2005 in APLA Ltd v Legal Services Commissioner of New South Wales,14 by a majority of six to one, the court held that restrictions on lawyers advertising their services were valid, as the communication they restricted was not about government or political matters. Later cases have further illustrated how the implied freedom of political communication applies in practice. In Hogan v Hinch in 2011,15 the defendant, a well-known radio broadcaster (later elected as a senator at the [page 495] 2016 federal election), challenged the validity of provisions of the Serious Sex Offenders Monitoring Act 2005 (Vic) under which he had been convicted for revealing details the subject of a suppression order. The court accepted that freedom of political communication was burdened by the law, but held that the law was valid, as it was reasonably appropriate and adapted to serve a legitimate end (effective monitoring of sex offenders). In 2012 in Wotton v Queensland,16 provisions preventing the complainant, a parolee, from giving media interviews without permission from parole authorities, were held similarly to burden the freedom of political communication, but to do so permissibly because the restriction was reasonably appropriate and adapted to serve a legitimate end (securing the good conduct of the parolee). Nonetheless, cases on the implied freedom continue to involve disagreements amongst the Justices, usually regarding whether a law that burdens political communication is reasonably appropriate and adapted to achieving a legitimate end. In Monis v R in 2013,17 the court split three–three, and thus (by virtue of the rule in the Judiciary Act 1903 (Cth) s 23(2)(a) that an evenly divided High Court upholds the decision of certain lower courts because no majority of Justices has been convinced to overrule it) affirmed Monis’ conviction for using

a postal service in a manner that is offensive contrary to Criminal Code (Cth) s 471.12. Monis had sent letters to the families of Australian service personnel killed in Afghanistan in which he denigrated the dead soldiers and the justice of the cause in which they gave their lives. His claim was that these communications were protected by the implied freedom of political communication. Crennan, Kiefel and Bell JJ held that the law against offensive mails pursued a legitimate end and was reasonably appropriate and adapted to achieving that end; it was therefore valid. French CJ, Hayne and Heydon JJ, in separate judgments, would have invalidated the law as directed to an end which was not legitimate, in that it was inconsistent with the system of representative government provided [page 496] for in the Constitution, which requires that even highly offensive political communications be permitted. An extension of the implied freedom into new territory occurred in 2013 in Unions New South Wales v New South Wales.18 Here, the court held that a New South Wales campaign finance law which limited both political donations and election spending was invalid. This was new ground because it accepted for the first time the link between money and speech — that is, that a restriction on finances (without any direct prohibition of speech or other forms of communication) could burden political communication so as to engage the Lange test. The impugned law restricted the ability of persons not on the electoral roll to make donations to a party, and it included within the permissible election spending limits any money spent by an ‘affiliated organisation’. In practice, the main persons affected by the legislation were trade unions — the law limited their ability to finance Labor candidates, or to themselves advertise in support of Labor candidates. The joint judgment of French CJ, Hayne, Crennan, Kiefel and Bell JJ did not need to ascribe a partisan political purpose to the law; instead, their Honours simply found that the restrictions could not be said to pursue any legitimate purpose, and were

therefore invalid. The High Court was not, however, charting a constitutional requirement of laissez-faire campaign finance laws. In 2015 in McCloy v New South Wales,19 it upheld the imposition of maximum contribution limits, and outright bans on contributions from certain categories of persons — in this case, property developers. The Justices unanimously found the contribution limit to be pursuing a legitimate end (reducing corruption) and to be reasonably appropriate and adapted to achieving that end. By six to one, the Justices also upheld the ban on contributions by property developers — no doubt the history of notorious corruption scandals arising from that sector had an impact in demonstrating the reasonableness of an absolute ban (which might otherwise be thought a draconian measure). [page 497]

Implied right to vote The traditional view had been that the Constitution did not give rise to a right to vote, beyond the right in s 41 which, remarkably, had been held to apply only to persons actually entitled to vote in 1901 under state law.20 This view changed in Roach v Electoral Commissioner in 2007.21 The majority of the court in this case gave force to the Constitution’s mandate in ss 7 and 24 that senators and members of the House of Representatives be ‘directly chosen by the people’ by implying a constitutional limitation on the deprivation of the right to vote (without altering the interpretation of s 41). Provisions of the Commonwealth Electoral Act 1918 (Cth) had denied the right to vote to persons serving a sentence of imprisonment of three years or longer. Under amendments passed in 2006, this disenfranchisement was extended to all persons serving a sentence of full-time imprisonment. Vickie Roach challenged the validity of the amendment. By a majority of four to two, the court held the amendment invalid, with the result that the law reverted to the previous three-year sentence rule. Gleeson CJ and Gummow, Kirby and Crennan JJ held that disenfranchising all prisoners was impermissible, adopting

something like the Lange test: a law restricting the franchise would be valid so long as it is reasonably appropriate and adapted to a legitimate goal (that is, one consistent with the constitutional system of representative government). Hayne and Heydon JJ dissented. In Rowe v Electoral Commissioner in 2010,22 the High Court invalidated amendments to the Commonwealth Electoral Act to preserve the right of around 100,000 Australians to vote in the 2010 federal election. The Act had, since 1983, prescribed a ‘grace period’ of seven days between the issue of writs for an election and the closing of the electoral rolls — in this grace period, many Australians would lodge applications to appear on the electoral rolls, or to transfer enrolment from one electorate to another. [page 498] In 2006, amendments to the Act effectively removed the grace period for new enrolments, and reduced it to three days for transfer applicants. By a majority of four to three, the court held that the amendments to remove the grace period were invalid, as the impairment of the right to vote of a large number of electors was disproportionate to the aim being pursued (to prevent an apprehended danger of fraud, even though there was no evidence of a significant risk). These decisions confirm the existence of a right not to be deprived of a vote in federal elections unless the restriction is proportionate and in pursuit of a legitimate end.

Acquisition of property on just terms Section 51(xxxi) of the Constitution enables the Commonwealth Parliament to legislate with respect to ‘the acquisition of property on just terms from any State or person for any purpose in respect of which the Parliament has power to make laws’. Had this paragraph not been included in the Constitution, there is little doubt that the court would have held that the Commonwealth could compulsorily acquire property in the course of exercising other constitutional powers but, like the states, without a constitutional obligation to pay just

terms.23 Property The High Court has adopted a liberal construction of the definition of property. In Minister of State for the Army v Dalziel in 1944,24 Dalziel operated a carparking station in central Sydney which the Commonwealth, acting under National Security (General) Regulations 1939 (Cth), resumed for defence purposes. It offered compensation equivalent to fair market rental but it did not include lost profits. The court held that Dalziel’s loss of profits amounted to a property loss, in consequence of the forced resumption. Rich J said the language used in s 51(xxxi) ‘is not restricted to [page 499] acquisition by particular methods or of particular types of interests, or to particular types of property. It extends to any acquisition of any interest in any property’.25 The Bank Nationalisation case in 194826 considered a Commonwealth attempt to acquire the private banks by buying their shares. Had the Commonwealth succeeded, the directors would have ceased to hold office and the federal Treasurer had the power to appoint new directors. Dixon J held that the compulsory acquisition did not offer just terms. It removed effective control over the property of a private bank. Although legal ownership remained with the shareholders, the bank was in a real sense to be stripped of the possession and control of its undertaking. In effect his Honour was stating that shares when the Commonwealth acquired them were worth more than the value at the time. Property includes choses in action, for example, a debt or a patent for an invention, as several cases have held.27 However, in a number of cases the High Court has refused to recognise that certain statutory rights can amount to property within the meaning of s 51(xxxi). In Telstra Corporation Ltd v Commonwealth in 2008,28 the court held that Commonwealth legislation that licensed other telecommunications companies to use Telstra’s network did not

constitute an acquisition of property. Telstra’s property was not sufficiently impaired for there to have been an ‘acquisition’: the Acts under which Telstra operated had always limited its rights, to the extent that no additional limitation arose from the requirement to permit other companies to use the network. Where an interest in property is conferred by an Act of Parliament, the approach of the High Court is that in some circumstances it can be abolished by Parliament and without the provision of just terms. In Health Insurance Commission v Peverill in 199429 the defendant, a doctor, had made claims [page 500] under the Medicare scheme for pathology services according to a schedule of charges in the Health Insurance Act 1973 (Cth). A later amending Act operated retrospectively to reduce the amounts that doctors were entitled to be paid for services they had provided. The doctor challenged the amending Act, arguing unsuccessfully that it amounted to a compulsory acquisition of property not on just terms. The court held that the statutory right to be paid for pathology services was inherently liable to modification by the Commonwealth, and that there had been no ‘acquisition of property’. In 1998 in Commonwealth v WMC Resources Ltd30 the High Court held four to two that amendments made to the Petroleum (Submerged Lands) Act 1967 (Cth) reducing the area covered by a federal petroleum exploration permit held by WMC was not an acquisition of property, again on the basis that certain rights which depended for their creation on a statute could be removed by a statute.31 Acquisition Section 51(xxxi) only applies where the Commonwealth uses compulsion to make an acquisition. The court takes a broad view as to what amounts to an acquisition. In 1994 in Mutual Pools & Staff Pty Ltd v Commonwealth,32 Deane and Gaudron JJ expressed the broad view which the court took of an acquisition. Their Honours stated:

[T]he word ‘acquisition’ is not to be pedantically or legalistically restricted to a physical taking of title or possession. Once it is appreciated that ‘property’ in s 51(xxxi) extends to all types of ‘innominate and anomalous interests’, it is apparent that the meaning of the phrase ‘acquisition of property’ is not to be confined by reference to traditional conveyancing principles and procedures.33

[page 501] Nonetheless, an acquisition is more than a mere deprivation or taking — acquisition also requires that somebody receive something as a result. In ICM Agriculture Pty Ltd v Commonwealth in 2009,34 a majority of six to one held that a reduction in entitlement to take water from a bore was not an ‘acquisition’ because there was no corresponding benefit or gain to the state. Similarly, in JT International SA v Commonwealth.35 the High Court held that there had been no acquisition of property when tobacco companies were denied the ability to use their intellectual property rights in the packaging of their products by legislation requiring the plain packaging of tobacco products. Just terms are required of a compulsory acquisition by the Commonwealth even though the property may not vest in the Commonwealth. In PJ Magennis Pty Ltd v Commonwealth36 in 1949 the High Court held by majority that the War Service Land Settlement Agreements Act 1945 (Cth) was a law with respect to the acquisition of property which failed to provide just terms. The Act approved an agreement between the Commonwealth and New South Wales under which the state government was to acquire land for distribution to discharged members of the armed forces. In 1947 in McClintock v Commonwealth37 the High Court held that the Commonwealth would have to pay just terms in a law to compel pineapple growers to deliver their produce to agents of the Commonwealth. In Wurridjal v Commonwealth in 2009,38 a majority held that the creation of a statutory lease in favour of the Commonwealth over Aboriginal land was an acquisition of property requiring the provision of just terms. Just terms

The meaning of ‘just terms’ remains contested, with some judges taking the view that the requirement is not the same as full market-value compensation. [page 502] In 1948 in Nelungaloo v Commonwealth39 some judges stated that just terms were a matter of fairness. However, Williams J in fact gave a market value measure: just terms are ‘the sum which a reasonably willing vendor would have been prepared to accept and a reasonably willing purchaser would have been prepared to pay for the property at the date of the acquisition’.40 During World War II the Commonwealth frequently compulsorily acquired property for defence purposes, sometimes without becoming the owner. In one such case, Johnston, Fear & Kingham v Commonwealth41 in 1943, the plaintiff successfully claimed for compensation for the acquisition of a printing press, and the National Security (Supply of Goods) Regulations 1939 (Cth) were held to be invalid. In the course of his Honour’s judgment, Latham CJ suggested the possibility that the prerogative of the Crown could authorise the seizure of property in the course of war-like operations without compensation to the owner.42 The question remains open. A federal law such as one confiscating property illegally imported or of a prohibited nature such as illicit drugs is not subject to the just terms obligation created by s 51(xxxi).43 Trial by jury Section 80 of the Constitution reads: The trial on indictment of any offence against any law of the Commonwealth shall be by jury, and every such trial shall be held in the State where the offence was committed, and if the offence was not committed within any State the trial shall be held at such place or places as the Parliament prescribes.

Proceedings on indictment require a formal setting out by the Crown of charges against an accused stating the offence and particulars of it before a jury.

[page 503] Most serious offences are indictable throughout the Commonwealth. Such proceedings are to be distinguished from summary proceedings, which are usually conducted with less formality in lower courts, such as magistrates courts. Offences such as traffic infringements are dealt with in summary proceedings. The High Court has adopted a literal approach to the interpretation of s 80, allowing the Commonwealth Parliament to decide whether an offence should be prosecuted by indictment or in summary proceedings.44 In later cases various members of the High Court have strongly criticised this literal interpretation, but it still remains the law. An eventual overturning of the precedent is not out of the question. The section has been held not to apply to the states45 or territories46 or to courts martial.47 The High Court has held that an accused person cannot waive the right to trial by jury.48 One question that arises is to what extent the requirements of a trial by jury are fixed. Provisions of the Juries Act 1927 (SA), which provided for majority verdicts of 10 or 11 jurors out of 12 if, after four hours of deliberation the jurors were not able to reach a unanimous verdict, were challenged on the basis of s 80 in Cheatle v R in 1993.49 All seven High Court judges unanimously held that s 80 required a unanimous verdict. According to the court, the history of criminal trial by jury in England and Australia up to the time of Federation had an essential feature that an accused person could not be convicted unless by agreement of all jurors. The court added that considerations of principle also supported the conclusion that jury verdicts had to be unanimous. The joint judgment stated: A majority verdict … is analogous to an electoral process in that jurors cast their votes relying on their individual convictions … Moreover, the common law’s insistence upon unanimity reflects a fundamental thesis of [page 504] our criminal law, namely, that a person accused of a crime should be given the benefit of any reasonable doubt.50

The decision comfortably fits the ethos of the High Court, but it is an implied limitation on Commonwealth power not apparent from the language of the Constitution or from the Convention Debates. The Constitution has to meet changing conditions. It could be argued that contemporary community ethos justifies legislation like the Juries Act 1927 (SA) in a society which is no longer homogeneous and in which all kinds of causes are given free rein. The court’s view that a majority verdict is analogous to an electoral process might also be open to challenge. Brownlee v R,51 decided in 2001, was a case in which the High Court held that where two jurors retired in the course of a trial, the New South Wales court could validly order the remaining 10 jurors to consider their verdict. The High Court took the opportunity to conclude in effect that a jury could still validly operate even if the jury comprised only 10 persons, but there was no agreement as to a lower minimum number. The exact scope for modifications to a traditional model of trial by jury remains uncertain. Freedom of trade, commerce and intercourse The earlier view that s 92 of the Constitution (providing that trade, commerce and intercourse amongst the states shall be absolutely free) gave individuals a right to engage in interstate trade free from governmental burdens was overruled by the High Court’s decision in Cole v Whitfield52 in 1988, which gave s 92 a much more restricted interpretation. A law now only infringes the section if it discriminates against interstate trade and the effect of the discrimination is to give a protectionist advantage to the state enacting the law. The decision did not deal with the freedom of intercourse among the states and the section may still provide a guarantee of the freedom of individual movement between states. Quite apart from s 92, there may [page 505] be a principle implied in the Constitution establishing the federal system that members of the community are free to move from any jurisdiction in Australia

to any other. These issues were addressed in Chapter 23.

Freedom of religion Section 116 of the Constitution reads: The Commonwealth shall not make any law for establishing any religion, or for imposing any religious observance, or for prohibiting the free exercise of any religion, and no religious test shall be required as a qualification for any office or public trust under the Commonwealth.

At one stage during the Convention Debates it was intended that the section should also apply to the states, but in Melbourne in March 1898 the states were excluded.53 It has not been a heavily litigated section but there have been a few significant decisions. Meaning of religion It was not until 1982 that the meaning of ‘religion’ received the attention of the High Court in Church of the New Faith v Commissioner of Pay-roll Tax (Vic) (Scientology case).54 The appellant church was a corporation registered in Victoria as a foreign company. Members of it, known as Scientologists, accepted and followed the writings, ideas and practices of L Ron Hubbard, an American who had substantial followings in the United States and Australia. The question in the case was whether a corporation was a ‘religious institution’ within the meaning of the Pay-roll Tax Act 1971 (Vic), under which the Commissioner had sought to make it liable for the tax. The church failed in an action in the Supreme Court in Victoria. The judge in the first trial considered that Scientology was only a farrago of established religions. The Full Court of the Supreme Court dismissed the [page 506] appeal, stating that Scientology lacked any religious content and its claim to be a religion was a sham. A unanimous High Court held that the beliefs, practices and observances of the church were a religion in Victoria. All five Justices

expressed views about the meaning of religion. All took a generous view of it and considered religion should not be confined to theistic religions. Murphy J said that the categories of religion were not closed. Mason ACJ and Brennan J considered the criteria of religion were twofold: first, belief in a supernatural Being, Thing or Principle; and second, the acceptance of canons of conduct in order to give effect to that belief, as long as they did not offend against the ordinary laws. Wilson and Deane JJ considered that no single characteristic could sufficiently define religion but their Honours enunciated criteria which could be helpful: namely, a belief that reality extends beyond that which is capable of perception by the senses; that the ideas relate to man’s nature and place in the universe and relation to things supernatural; that the ideas are accepted by adherents as requiring or encouraging them to observe and participate in specific practices; that, however loosely knit and varying in beliefs and practices adherents may be, they constitute an identifiable group or groups; and that the adherents see those beliefs, ideas and practices as constituting a religion. Establishing a religion Section 116 did not attract much debate at the Conventions, but Quick and Garran believed it had been directed towards the prevention of the establishment of a state church enjoying special favours denied to other churches. In the 1912 decision in Krygger v Williams.55 Krygger had been called up for military training under the Defence Act 1903 (Cth), which required him to take an oath of military service. He objected that to do so was opposed to the will of God, and against his conscience. He maintained that it was a sin in the sight of God to undertake military service. He appealed against a conviction by a Victorian magistrate. The court consisting [page 507] of Griffith CJ and Barton J held that the Defence Act did not infringe s 116. According to the Chief Justice:

To require a man to do a thing that has nothing at all to do with religion is not to prohibit him from the free exercise of religion. It may be that a law requiring a man to do an act which his religion forbids would be objectionable on moral grounds, but it does not come within the prohibition of s 116 ….56

Barton J said ‘I think the constitutional objection is as thin as anything of the kind that has come before us’.57 Section 116 came before the court again during World War II, in the Jehovah’s Witnesses case,58 already discussed in Chapter 19 on the defence power. The Governor-General declared the Witnesses to be a subversive organisation under the National Security (Subversive Associations) Regulations 1940 (Cth). The Witnesses had been engaging in propaganda in opposition to the war. The court unanimously upheld the Regulations on the ground that the need for the protection of society and its continued existence was paramount. For many years, successive Commonwealth governments have granted financial assistance to non-government schools, much to the chagrin of some sections of the community who believe that the policy operates to the detriment of the public school system. In 1981 in Attorney-General (Vic); Ex rel Black v Commonwealth (Defence of Government Schools case),59 the plaintiffs challenged the validity of several federal Acts which implement the scheme for Commonwealth assistance. In a six to one decision the High Court held that all the relevant statutes were valid. The court held that a law would offend s 116 if it had the effect or purpose of constituting or recognising a particular religion, including a branch of a religion or a [page 508] church, as a national institution. The court also held that a law providing financial aid to the educational activities of church schools was not a law for establishing religion, even though its operation might indirectly assist the practice of religion.60 In Kruger v Commonwealth61 in 1997, the High Court decided that s 116 does not apply to Commonwealth territories. At the time the court’s approach

in other cases was largely to place the territories power in s 122 quite separately from the rest of the Constitution. More recent cases have headed in the opposite direction, leaving the authority of Kruger open to doubt.

Discrimination on the ground of state residence Section 117 of the Constitution reads: A subject of the Queen, resident in any State, shall not be subject in any other State to any disability or discrimination which would not be equally applicable to him if he were a subject of the Queen resident in such other State.

Not long after Federation in Davies & Jones v Western Australia,62 the original High Court of Griffith CJ, Barton and O’Connor JJ dealt with a case under s 117. The Administration Act 1903 (WA) imposed death duty on a deceased estate at fixed rates. It contained a proviso stating that where a beneficiary of the deceased was a bona fide resident of and domiciled in Western Australia, duty was payable at only one half of the fixed rate. The plaintiffs, who were the executors of a will, had to pay the full succession duty on the value of property passing under the will of a Western Australian to a beneficiary who was a resident of Queensland, and domiciled there. The court distinguished between domicile and residence, and held that because [page 509] the real ground of the discrimination was domicile and not residence, the state act was not void under s 117. The Chief Justice decided that ‘domiciled’ in the state legislation meant legally domiciled, so that the factual issue of residence addressed by s 117 was not the basis of the discrimination. Barton J was of similar opinion. O’Connor J added that ‘[i]n my opinion, the Constitution does not prohibit a State from conferring special privileges upon those of its own people who, in addition to residence within the State, fulfil some other substantial condition or requirement, such as that which is made the condition of the concession allowed in this enactment’.63 This interpretation reduced s 117 to a virtual nullity,

because a state could easily impose some condition in addition to residency as a requirement, thus preserving the validity of legislation which discriminates against residents of other states. This remained the law until 1989. In 1973 in Henry v Boehm64 the High Court applied Davies & Jones in a case involving a solicitor who practised in two states. A majority of the court upheld a South Australian statute which required a person practising law in that state to have resided there at least three months. Barwick CJ rejected an argument that the court’s position in Davies & Jones was overly narrow and legalistic. Section 117 of the Constitution came back to life in 1989 with Street v Queensland Bar Association.65 The High Court unanimously rejected the Davies & Jones approach. Street was a barrister resident in New South Wales and admitted to practise in other states. His application for admission to practise as a barrister of the Supreme Court of Queensland was refused. When he first applied, the rules relating to admission of barristers in Queensland required an applicant whose application was based on the applicant’s admission to practise in another state to be a resident of Queensland, and to cease to practise in the other state. Subsequently, the rules were amended to [page 510] require someone who applied for admission based on admission in another state to have an intention to practise principally in Queensland. Mason CJ stated that the Davies & Jones approach denied the individual focus of s 117 by addressing itself to the general range of circumstances in which the state law applies. Mason CJ observed: It is enough that the individual is subject to either of the two detriments, whatever the means by which this is brought about by State law … It would make little sense to deal with laws which have a discriminatory purpose and leave untouched laws which have a discriminatory effect … Such a requirement may have a discriminatory effect in relation to an out-of-State resident for the simple reason that it may apply unequally by subjecting him to a greater burden or disadvantage than that imposed on a resident of the legislating State.66

Other members of the court reached their decision in judgments

substantially in line with the view expressed by the Chief Justice. The court in Street v Queensland Bar Association overruled Henry v Boehm in which the court denied the individual focus of the section by addressing itself to the general range of circumstances in which state law applies. But in reversing the Queensland Supreme Court’s decision against the plaintiff Street, the court did not find it necessary to formally overrule Davies & Jones. The court endorsed Street’s case in two later cases concerned with motor accident claims — Goryl v Greyhound Australia Pty Ltd67 and Sweedman v Transport Accident Commission.68

A bill of rights Some critics of the Commonwealth Constitution correctly observe that it is a meagre provider of individual rights. The High Court has declined to recognise a personal right in s 92, as Chapter 23 explains. Apart from the handful of rights expressed in ss 51(xxiiiA) and (xxxi), 80, 116 and 117, [page 511] there are just the implied freedoms recognised by the court under the rubric of representative government, and the protections arising from the federal separation of judicial power for both federal69 and state courts.70 It is unlikely the High Court will discover further implications in consequence of other aspects of the system of government for which the Constitution provides that confer personal rights of similar scale and importance. Of course, all persons in Australia enjoy a wide array of legally enforceable personal rights. However, these exist by virtue of the common law and Acts of state and Commonwealth parliaments, and can therefore be overturned by legislation. Only rights with a constitutional foundation are immune. Critics who deplore the paucity of rights protected in this way argue for the introduction of a constitutional charter, or bill of rights, which would make a much longer list of individual rights legally enforceable. Some of the practical obstacles to their

proposal are considered in Chapter 33. The movement to insert a charter of rights in the Constitution does not at present have strong public support, and will not quickly win a referendum for the proposed reform. The first tentative steps towards more comprehensive rights protection in Australia have been taken at the state and territory level, although these are all created by legislation and not constitutionally protected. The Charter of Human Rights and Responsibilities Act 2006 (Vic) is the first state-based bill of rights; it followed the Human Rights Act 2004 (ACT). These bills of rights follow the ‘dialogue’ model by providing for rights-protective interpretation of statutes, and judicial declarations of incompatibility where such an interpretation is not possible, without in fact giving courts any power to invalidate legislation. In this way, parliamentary sovereignty is preserved. If there is to be a significant movement on comprehensive human rights protection within Australia, these will serve as models that may be [page 512] emulated. However, the decision in Momcilovic v R71 suggests that there will need to be careful consideration given to the compatibility of important parts of the dialogue model with rules arising from the separation of judicial power in the Constitution if it is to be valid and effective at the federal level.

1. 2. 3. 4. 5. 6. 7. 8.

(1992) 177 CLR 106; 108 ALR 577 (Capital Television case). (1992) 177 CLR 1; 108 ALR 681 (Nationwide News case). (1994) 182 CLR 104; 124 ALR 1. (1994) 182 CLR 211; 124 ALR 80. Unions New South Wales v New South Wales (2013) 252 CLR 530; 304 ALR 266; [2013] HCA 58 and McCloy v New South Wales (2015) 325 ALR 15; [2015] HCA 34. (1997) 189 CLR 520; 145 ALR 96 (Lange). (1997) 189 CLR 520 at 566–7; 145 ALR 96 at 112. In Levy v Victoria (1996) 189 CLR 579; 146 ALR 248, heard at around the same time as Lange, a Victorian animal rights activist challenged some state wildlife regulations under which he was charged with entering a permitted hunting area without a game licence — which he did for the purpose of

9. 10. 11. 12. 13. 14. 15. 16. 17. 18. 19. 20. 21. 22. 23. 24. 25. 26. 27. 28. 29. 30. 31.

32. 33. 34. 35. 36. 37. 38. 39. 40. 41.

protesting against Victorian hunting laws. He asserted that the regulation was invalid by reason of the implied freedom of communication, in that it limited his capacity to protest and thereby to enable people to form political judgments about government policy on duck shooting. He said he needed to have access to the prohibited areas so he could retrieve dead or wounded birds and show them to television camera crews. The court held, in line with Lange, that the regulation was reasonably appropriate and adapted to the protection of individual or public safety. Five of the seven judges in the case considered that the implied freedom of communication extended to protect non-verbal conduct intended to be expressive, as well as verbal communications. (1996) 186 CLR 302; 134 ALR 400. (2004) 220 CLR 1; 209 ALR 182; [2004] HCA 39. (2004) 220 CLR 1; 209 ALR 182; [2004] HCA 39 at [196] citing Lange (1997) 189 CLR 520 at 567; 145 ALR 96 at 112. (2004) 220 CLR 1; 209 ALR 182; [2004] HCA 39 at [299]. (2004) 220 CLR 181; 209 ALR 582. (2005) 224 CLR 322; 219 ALR 403; [2005] HCA 44. (2011) 243 CLR 506; 275 ALR 408; [2011] HCA 4. (2012) 246 CLR 1; 285 ALR 1; [2012] HCA 2. (2013) 249 CLR 92; 295 ALR 259; [2013] HCA 4. (2013) 252 CLR 530; 304 ALR 266; [2013] HCA 58. (2015) 325 ALR 15; [2015] HCA 34. R v Pearson; Ex parte Sipka (1983) 152 CLR 254. (2007) 233 CLR 162; 239 ALR 1; [2007] HCA 43. (2010) 243 CLR 1; 273 ALR 1; [2010] HCA 46. Attorney-General (Cth) v Schmidt (1961) 105 CLR 361 at 371; [1961] ALR 806 at 810 per Dixon CJ. (1944) 68 CLR 261; [1944] ALR 89. (1944) 68 CLR 261 at 285; [1944] ALR 89 at 98. Bank of New South Wales v Commonwealth (1948) 76 CLR 1; [1948] 2 ALR 89. See, for example, Smith v ANL Ltd (2000) 204 CLR 493; 176 ALR 449; [2000] HCA 58. (2008) 234 CLR 210; 243 ALR 1; [2008] HCA 7. (1994) 179 CLR 226; 119 ALR 675. (1998) 194 CLR 1; 152 ALR 1. Similarly, in Attorney-General v Chaffey (2007) 231 CLR 651; 237 ALR 373; [2007] HCA 34, the High Court held that a statutory right to workers’ compensation under a Northern Territory Act could be amended with retrospective effect. An amending Act narrowed the definition of ‘normal weekly earnings’ so as to exclude superannuation contributions made by an employer. (1994) 179 CLR 155; 119 ALR 577. (1994) 179 CLR 155 at 184–5; 119 ALR 577 at 597. (2009) 240 CLR 140; 261 ALR 653; [2009] HCA 51. (2012) 250 CLR 1; 291 ALR 669; [2012] HCA 43. (1949) 80 CLR 382; [1950] ALR 33. (1947) 75 CLR 1; [1947] ALR 530. (2009) 237 CLR 309; 252 ALR 232; [2009] HCA 2. (1948) 75 CLR 495; [1948] 1 ALR 145. (1948) 75 CLR 495 at 507; [1948] 1 ALR 145 at 150. (1943) 67 CLR 314; [1943] ALR 278.

42. 43. 44. 45. 46. 47. 48. 49. 50. 51. 52. 53. 54. 55. 56. 57. 58. 59. 60. 61. 62. 63. 64. 65. 66. 67. 68. 69. 70. 71.

(1943) 67 CLR 314 at 318; [1943] ALR 278 at 280. Burton v Honan (1952) 86 CLR 169; [1952] ALR 553. R v Archdall & Roskruge: Ex parte Carrigan v Browne (1928) 41 CLR 128; 34 ALR 297. Byrnes v R (1999) 199 CLR 1; 164 ALR 520. R v Bernasconi (1915) 19 CLR 629; 21 ALR 86. This decision could eventually be overturned. See Chapter 22. Re Tyler; Ex parte Foley (1994) 181 CLR 18; 121 ALR 153. Brown v R (1986) 160 CLR 171; 64 ALR 161; Alqudsi v R (2016) 332 ALR 20; [2016] HCA 24. (1993) 177 CLR 541; 116 ALR 1. (1993) 177 CLR 541 at 553; 116 ALR 1 at 6–7. (2001) 207 CLR 278; 180 ALR 301; [2001] HCA 36. (1988) 165 CLR 360; 78 ALR 42. Official Report of the National Australasian Convention Debates, Third session, Melbourne, 1898 (2 March 1898), p 1769. (1983) 154 CLR 120; 49 ALR 65. (1912) 15 CLR 366; 18 ALR 518 (Krygger). (1912) 15 CLR 366 at 369; 18 ALR 518 at 519. (1912) 15 CLR 366 at 373; 18 ALR 518 at 521. Krygger was followed by the Queensland Supreme Court in Sellars v Nielsen [1943] St R Qd 217. Adelaide Company of Jehovah’s Witnesses Inc v Commonwealth (1943) 67 CLR 116; [1943] ALR 193. (1981) 146 CLR 559; 146 CLR 559. The entire court held that a statute granting money to the states for the purpose of implementing this policy constituted a valid exercise of power under s 96 of the Constitution. (1997) 190 CLR 1; 146 ALR 126. (1905) 2 CLR 29; 11 ALR 73. (1905) 2 CLR 29 at 53; 11 ALR 73 at 80. (1973) 128 CLR 482; 1 ALR 181. (1989) 168 CLR 461; 88 ALR 321. (1989) 168 CLR 461 at 487–8; 88 ALR 321 at 333–4 (1994) 179 CLR 463; 120 ALR 605. (2006) 226 CLR 362; 224 ALR 625; [2006] HCA 8. R v Kirby; Ex parte Boilermakers’ Society of Australia (1956) 94 CLR 254; [1956] ALR 163 (see Chapter 7). Kable v Director of Public Prosecutions (NSW) (1996) 189 CLR 51; 138 ALR 577 (see Chapter 26). (2011) 245 CLR 1; 280 ALR 221; [2011] HCA 34.

[page 513]

Chapter 33

Constitutional Change Section 128 of the Constitution requires that any change to the Constitution be approved by a majority of electors throughout the Commonwealth and a majority of electors in a majority of states. It suggests that ultimately sovereignty under the Constitution vests in the people. Section 51 paras (xxxvii) and (xxxviii), by providing for the Commonwealth to acquire power, by reference from or concurrence of the states (see Chapter 28), opens a limited scope for constitutional amendment without resort to a referendum under s 128, which has been exercised from time to time by the Commonwealth and states. However, since exercises of power under s 51 are ‘subject to this Constitution’, paras (xxxvii) and (xxxviii) do not allow an amendment which is inconsistent with any existing provision of the Constitution. Further, changes under these paragraphs, while they may affect the state constitutions and the constitutional position of the Commonwealth and states, are not necessarily of a continuing character, as the short-lived operation of state references in relation to air navigation demonstrates. In 1920 it was resolved at a premiers’ conference to allow the Commonwealth to make laws with respect to all air navigation, including intrastate air navigation. Only two states, Queensland and Tasmania, passed Acts in accordance with the resolution. The Federal Parliament then passed the Air Navigation Act 1920 (Cth) to empower the Governor-General to make regulations to control all air navigation in the Commonwealth. The legislation was based, in part, on the understanding reached at the premiers’ conference, but the states failed to respond as agreed. In 1929 the premiers agreed that the Commonwealth should draft a model bill, providing for the transfer to the Commonwealth Parliament of full power

[page 514] to legislate with respect to aviation, and the state governments undertook to consider whether they would submit the bill to their Parliaments at an early date. The Commonwealth prepared the draft but no further action followed. In 1936 the High Court in the Goya Henry case1 held that the Air Navigation Act could not be supported under the trade and commerce power conferred on the Commonwealth by s 51(i). Only by references from the states (in state Commonwealth Powers (Air Navigation) Acts) would the Commonwealth gain the necessary power. But in 1965, in Airlines of New South Wales Pty Ltd v New South Wales (No 2),2 the High Court held that in the interests of securing public safety, the Commonwealth had the power to exercise control over public air transport operations throughout Australia including intrastate air navigation operations (see Chapter 16). In effect, the Commonwealth’s 1964 amendment to the Air Navigation Regulations 1947 (Cth) which caused them to apply to intrastate air navigation operations displaced the state references that had temporarily supported Commonwealth power over air navigation. The case may be seen as one of many decisions in which the High Court by judicial interpretation has brought about constitutional changes irrespective of the intention of the founders, and prevented the document from becoming a constitutional strait jacket.

Section 128 Under the first paragraph of s 128, only the Federal Parliament can initiate the referendum process. A proposed law to alter the Constitution has to pass by an absolute majority of each House and then be submitted to the electors of each state and territory, not less than two nor more than six months after its passage through Parliament. Under the fourth paragraph of the section a proposal for constitutional change must be approved by a

[page 515] total majority of electors throughout the Commonwealth and a majority of electors in a majority of the states. The second paragraph provides an alternative procedure in the parliamentary stage for launching an amendment proposal, which could have practical application for a government lacking a Senate majority. The paragraph empowers the Governor-General to submit an amendment to the electorate which has been passed with an absolute majority in one House of Parliament, but which the other House rejects or fails to pass. This procedure is only available if the first-mentioned House passes it again within three months of its first passage and the other House again fails or declines to pass it. This alternative procedure has never been used successfully; in 1914 the Senate proposed an amendment meeting the requirements, but the Governor-General accepted advice from the government (which enjoyed a majority in the House of Representatives) not to submit the proposal to referendum.3

Limits to constitutional alteration Some sections of the Constitution require that alterations of the text need the approval of electors in the particular state affected by the alteration. Under s 123, the alteration of the limits of a state requires such an approval. Under s 124 a new state may be formed by separation of territory from the state or from the union of two or more states but only with the consent of the Parliaments of the states affected. The fifth paragraph of s 128 does not allow an alteration diminishing the proportionate representation of any state in either House of the Parliament, or the minimum number of members of a state in the House of Representatives, unless the majority of the electors voting in that state approve. Section 106 of the Constitution states that each state shall, ‘subject to this Constitution’, continue as at the establishment of the Commonwealth, [page 516]

or as at the admission or establishment of the state, as the case may be, until altered in accordance with the Constitution of the state. There is a theoretical question as to how far the Commonwealth could make laws which have the effect of restricting the powers of a state, but it is probably implicit that the federal system could not be destroyed by a Commonwealth law abolishing the states. There are also doubts as to whether the covering clauses of the Constitution set out in eight paragraphs of the Commonwealth of Australia Constitution Act 1900 of the Imperial Parliament could be amended under s 128. The balance of opinion favours the view that they could be.4 Over the years since 1920 there have been discussions with the states and inquiries of various kinds about the need to amend the Constitution in areas where s 128 is not limited, but successes have been few.

The Royal Commission on the Constitution 1929 In August 1927, the Commonwealth Government appointed a Royal Commission to inquire into and report upon the powers of the Commonwealth under the Constitution and the working of the Constitution since Federation. The Commission presented a report in September 1929 containing a wide range of recommendations, but revealing substantial differences of opinion amongst its members largely reflecting their backgrounds and political attitudes. No attempt was made to implement any of their recommendations.

Commonwealth-state conferences The most significant discussions between the Commonwealth and states on constitutional matters occurred in 1934 when representatives from the Commonwealth and all states met in Melbourne. The Commonwealth had proposed a convention, but the states instead proposed the Melbourne [page 517]

conference as a means of enabling them to raise questions affecting relations between the Commonwealth and the states and between the states themselves. When the conference was held it was still a time of world depression. It was, therefore, natural that the states would focus mainly on their financial situations, and at a preliminary conference of premiers a number of proposals were submitted for increasing the revenue of the states. Speaking for Victoria at the conference, Robert Menzies, acting premier (who moved to federal politics later in the year), urged the Commonwealth to consider three alternative proposals: 1. to give the states exclusive power over some field of taxation concurrently occupied by the Commonwealth and the states, for example, income tax; 2. to give the states concurrent powers of taxation in some field exclusively occupied by the Commonwealth — it should be the sphere of excise, but not customs; or 3. to leave all the taxation powers as they stood but give the states some definite permanent fixed share in some branch or branches of the Commonwealth revenue. Bertram Stevens, premier of New South Wales, was strongly critical of the first two of Menzies’ proposals, his criticism reflecting the traditional free trade outlook that New South Wales had expressed during the Convention Debates before Federation. Stevens feared that the abdication of direct income tax by the Commonwealth would mean higher customs duties, having the effect of bolstering up an uneconomic level of internal prices, causing exchange difficulties, and increasing the already serious troubles of the export industries. He also said that there was little likelihood of the electors agreeing to allow the states to have the right to impose excise duties on goods not subject to customs duties (which was one of the recommendations of the Royal Commission on the Constitution in 1929). Premier Stevens did not favour constitutional amendments at all for the purposes of alleviating the financial embarrassment of the states. [page 518]

The 1934 conference also had before it memoranda on constitutional questions prepared by Sir Robert Garran under the direction of the Commonwealth Attorney-General, John Latham (who resigned later in the year, and was appointed Chief Justice of the High Court the following year). The memoranda suggested increased Commonwealth legislative power on a range of subjects including company law, aviation, marine navigation, trade and commerce, cinematography, wireless broadcasting and television, quarantine, and fisheries. The conference resolved, however, to consider only three major subjects: finance, trade and commerce, and industrial law. As to industrial law, a Committee of the Whole of the Conference had before it a tentative proposal of the Prime Minister Joseph Lyons’ Federal Government that the federal Arbitration Court should be confined to the determination of the minimum wage and standard hours. New South Wales was the only state prepared to support the suggestion. No decisions were reached by the conference with respect to other matters, and there was a general unwillingness on the part of the states to concede further legislative powers to the Commonwealth.

Commonwealth-state conference on post-war power Towards the end of 1942 a convention of representatives of the Commonwealth and state Parliaments met at Canberra to consider granting increased legislative powers to the Commonwealth Parliament to provide for post-war reconstruction. The convention resolved unanimously that specific matters in relation to post-war reconstruction should be referred to the Federal Parliament under s 51(xxxvii) for a period of five years from the cessation of hostilities. It was resolved that there should then be a referendum to secure the approval of the electors to alternations of the Constitution on a permanent basis. The convention considered a draft model bill referring 14 matters to the Commonwealth Parliament. The state premiers agreed to do their utmost to secure the passage of the bill into law as early as possible, but only two [page 519]

states eventually passed the measure in the agreed form. The conference revealed little enthusiasm for any amendments not directly concerned with improving the position of the states in their financial relationships with the Commonwealth. The failure of the other states to implement the 1942 decisions was followed by the Commonwealth’s unsuccessful attempt to gain the requested powers by referendum. A proposed law with substantially the same list of 14 matters — the Constitution Alteration (Post-War Reconstruction and Democratic Rights) — was submitted to referendum in 1944, but it failed to secure the support of a majority of electors nationally, and secured majorities in only two states; it was thus rejected.

Joint Committee on Constitutional Review 1956–59 In 1956, following an election undertaking by the Menzies Government, the Federal Parliament established the Joint Committee on Constitutional Review, consisting of members of the government parties and the Labor Opposition from both Houses to review the working of the Constitution and to recommend amendments.5 The opinion was widely held at the time that the main reason for the failure of many proposals for constitutional amendment submitted to referendum was that they were usually opposed by the Opposition parties in the Federal Parliament and their concomitant political organisations in the states. History showed that on different occasions the same parties had proposed and opposed similar proposals. Accordingly, it was thought to be important in order for constitutional amendments to have reasonable prospects, that agreement be obtained between opposing parties at the federal level. The Joint Committee on Constitutional Review submitted an interim report in 1958 and full report in 1959, revealing a surprising level of agreement on a wide range of subject matters. Only one member, Senator Wright, was in substantial dissent. Government members were reported to have been astounded that their party colleagues could have agreed to so many [page 520]

proposals involving projected increases in Commonwealth legislative power, especially powers of an economic or commercial nature. The Committee’s report never received the promised detailed debate in Parliament, though one of its proposals — the severing of the 2:1 nexus in determining the relative sizes of the two Houses — was submitted to referendum in 1967, but defeated. The Committee’s work ended, therefore, in substantial failure to achieve anything, and there seems to be little purpose to be served by having any further constitutional review purely at the federal level. State-based hostility can usually be aroused sufficiently to influence electors to say ‘no’, something Australian electors have been shown to be naturally inclined to do in any case when constitutional change is involved.

Australian Constitutional Conventions 1973–85 In 1973 the Whitlam Labor Government responded to a Victorian request to hold a Constitutional Convention to consider possible constitutional amendments to be put to the voters for approval at a referendum. Delegates chosen by the Federal and state Parliaments met throughout 1973. In opening the convention, the Governor-General Sir Paul Hasluck expressed the hope that it would achieve positive results and not turn out to be ‘a monumental flop’. Unfortunately, most delegates were unable to raise their sights beyond partisan level and the convention did not achieve anything substantial. It did, however, leave the way open for subsequent conventions with more restrained representation. Further sessions were held in Melbourne in 1975, Hobart in 1976, Adelaide in 1983 and Brisbane in 1985. The Hobart session reached agreement, which subsequently led to a successful constitutional referendum in 1977 to replace s 15 of the Constitution, to ensure that the filling of casual vacancies in the Senate should be from the same party as the departing senator. It also provided a retirement age of 70 for federal judges, and gave voters residing in the Australian Capital Territory and Northern Territory the right to vote in constitutional referendums, their number being counted in the Australia-wide majority.

[page 521] In 1985, the Brisbane convention adopted a set of resolutions about the relations between the Prime Minister and the Governor-General in light of the drama surrounding Sir John Kerr’s dismissal of Gough Whitlam 10 years earlier. The resolutions enunciated a basic principle that the ministry should have the confidence of the House of Representatives, followed by paragraphs meant to give effect to this principle. For example, it was stipulated that in advising dissolution the Prime Minister had to be in a position to assure the GovernorGeneral that the government had been granted sufficient funds by Parliament to enable administration to be carried on through the election period, or that these funds would be granted before the dissolution. As with other sessions of the convention which produced recommendations of various kinds, positive action did not result.6 There have been no further sessions since 1985, mainly due to declining Commonwealth interest.

Commonwealth Constitutional Commission 1985–88 In 1985, the Hawke Labor Government appointed a Constitutional Commission to review the Constitution. It delivered its recommendations in the bicentennial year 1988. The Commission undertook a wide-ranging review, and recommended substantial changes to comprehensively update the Constitution. Without waiting for the final report of the Commission, the government chose just four of the Commission’s recommendations to submit to a referendum: to harmonise the terms of the Houses of Parliament; to insert some democratic rights based on the one vote, one value idea; to recognise local government; and to extend the scope of a handful of existing rights provisions in the Constitution. All four proposals were defeated resoundingly; indeed, not one of the proposals attracted majority support in any state. The proposal to guarantee the continuance of elected local governments was met with a ‘no’ majority of almost two to one. Local government remains as before, an institution of state law without any

[page 522] recognition in the Constitution. No further action has been taken on any of the Commission’s recommendations, which stand as the most comprehensive expert review of the Constitution undertaken in recent times.

Constitutional Convention 1998 A Constitutional Convention was convened in 1998 by Prime Minister John Howard to consider the extent of agreement on Australia becoming a republic. The convention consisted of 152 delegates — half elected by the people and half appointed by the government. The latter appointees included selected federal, state and territory politicians. It soon became apparent that there were four distinct groups of delegates: first, constitutional monarchists; second, republicans who wanted a head of state chosen by Parliament; third, those wanting a republic but with the president elected by the people; and fourth, those who had no established position. Monarchists and republicans dominated the proceedings from the outset. However, the republican position was weakened by the division as to the appointment of a head of state. Following a complicated voting procedure there were eventually more votes for the indirect election model, notwithstanding the bitter opposition of the proponents of direct election. Taking advantage of the situation, the Prime Minister, who favoured continuation of the constitutional monarchy, announced that his government would put the indirect elections model to a referendum in 1999. This proposal was rejected by the voters, with a ‘no’ majority in all states. The reasons for this are undoubtedly complex, and include Australians’ usual reluctance to change the Constitution, the choice of an indirect election model (choice of the president by Parliament and not by an election) and attachment to the Queen. It appears that any further push for Australia to become a republic will not happen in Her Majesty’s lifetime.

Why do referendums fail? The record of constitutional change is dismal. Of 44 proposed amendments,

only eight have received the requisite approvals. The first three dealt with [page 523] Senate elections (1906), state debts (1909) and again state debts (1928), none of which greatly affected electors. Probably the most significant amendment was social services (1946), giving the Commonwealth power to provide a comprehensive set of social service benefits. The fifth change in 1967 gave the Commonwealth power to legislate with respect to Aboriginal peoples, and was regarded as a milestone in relations between Australia’s first peoples and those of newer stock. As noted above, the sixth, seventh and eighth alterations all passed in 1977. The other 36 proposals have all failed. Much has been written about why referendums fail.7 The outcomes have been described as follows: Many proposals for change have been put to a referendum on more than one occasion. For example, there have been five separate attempts to extend the corporations power in section 51 of the Constitution, and six attempts to extend the Commonwealth’s power over employment. There have been four attempts to amend the Constitution to ensure that elections for the Senate and House of Representatives are held at the same time. None of these referendums was successful. Other questions which have been put more than once include the extension of Commonwealth power over monopolies and over rents and prices.8

After pointing out that Labor efforts to amend the Constitution have generally sought to bring about major changes, leaving their opponents to portray the party as constitution wreckers, Bennett and Brennan commented: The consequence of this has been Labor’s near-failure to institute constitutional change: just a single success in 25 attempts (four per cent) compared with the conservative parties’ successes in 7 of 17 attempts (forty-one per cent).9

[page 524] An overarching fact which seems to have been little discussed is that irrespective of their merits, referendums have invariably failed when not supported by the major parties in the Australian Parliament (and even then

success is not assured). Various writings describe reasons for the failure of the referendum in 1999 to establish an Australian republic, but a basic fact is that there were divisions in the ranks of the government parties about changing from a monarchy to a republic. The Prime Minister himself, though bringing about the referendum, did not support the change. There was of course also a division among supporters of a republic at the Constitutional Convention in February 1988 between those who wanted the president to be elected by the people and others who favoured appointment by Parliament, and this tension carried through to the referendum. There have been suggestions that if supporters of a republic had been a single united force the referendum might have succeeded, but it is impossible to say whether this would have been the case. Referendums in which the Commonwealth sought further legislative powers, some involving several powers, for example, trade and commerce, corporations, industrial matters and combinations, failed in 1911, 1913, 1919, 1926, 1936, 1944, 1946 (except for social services), 1947, 1951 and 1973. Electors have long been wary of demands for extended powers to be granted to the Commonwealth. A notable exception is the successful referendum in 1967 which enhanced Commonwealth power with respect to Aboriginal and Torres Strait Islander peoples. On three occasions—in 1974, 1977 and 1984—a proposal to synchronise half-Senate elections with elections for the House of Representatives instead of senators having fixed terms failed. In 1977 the proposed change was well supported by the major parties and received a 62.2 per cent national vote in favour. But because Queensland, Western Australia and Tasmania voted ‘no’, it did not win majorities in the requisite four states. In 1984 the proposal lost ground in spite of an overall majority because of no-voting in all the traditional smaller states of Queensland, South Australia, Western Australia and Tasmania. [page 525] There is widespread agreement among commentators that another reason referendums usually fail is the conservative attitude of the Australian electorate.

This is in part due to a wide misunderstanding of how federalism operates, and, in the case of a substantial section of the population, almost complete ignorance of the existence of a written Commonwealth Constitution. A large-scale process of public education, beginning in the schools, is probably necessary before proposals for constitutional change receive informed consideration by the great bulk of the population. Nevertheless, it has to be conceded that the existing constitutional federal fabric in which power is shared between the Commonwealth and the states has worked well enough in practice, even though this is largely due to judicial review placed in the hands of the High Court. The conduct of a referendum is regulated by the Referendum (Machinery Provisions) Act 1984 (Cth). It requires the electoral commissioner to distribute to the electorate a referendum pamphlet containing the argument in favour of the proposed law and the argument against it, when a majority of the members of Parliament who voted for the proposed law and a majority who voted against it have authorised that the action be taken.10 This position does not favour the argument for constitutional change and gives the ‘no case’ equal status — to which, in many cases, it should not be entitled. After all, a proposal for constitutional amendment when passed by Parliament gives legal expression of the will of the people through their elected representatives. It is all too easy to rake up arguments against constitutional change whether they have essential validity or not. There is a strong case for permitting Parliament to vigorously pursue a proposal for constitutional change by varying the Referendum (Machinery Provisions) Act to give less weight to the ‘no’ case. From time to time, various polls have shown that proposed constitutional changes have attracted the sympathy of the electors, but as time goes by and the referendum date approaches public support has significantly declined. [page 526] The reasons for this are not clear, but expressions of virulent opposition to a proposal while Parliament is hamstrung is probably a relevant factor.

Concluding observations The capacity of the Constitution to adapt to the changing patterns of Australian life over more than a century of federation has not been a function of the formal machinery for its alteration contained in s 128. Instead, the institutions of government established by the Constitution have themselves been the agents of change. The Parliament has, by exploring the very limits of its legislative powers, expanded the areas of Australian life which it regulates. Where the Commonwealth has lacked any basis for exercising legislative power, it has exploited its fiscal dominance to grant money to the states on condition they take action in areas the framers did not expect the Commonwealth to have influence. The Commonwealth executive has grown to extraordinary size and power, and yet the Parliament has provided enhanced means of legal control in an attempt to protect the rights of individuals in the absence of comprehensive legal protection of human rights. The High Court has interpreted the Constitution in a manner that has permitted constitutional powers to be flexible enough to respond to changing times. The common law has continued, characteristically, to adapt and evolve in response to its application to new circumstances. Accordingly, constitutional change in Australia has, to this point, largely been an organic process. It may well continue to be so. Section 128 remains available if the Australian people, in whom sovereignty ultimately resides, can be convinced that more radical changes are necessary to ensure the continuing success of Australia’s constitutional government.

1. 2. 3. 4. 5. 6.

R v Burgess; Ex parte Henry (1936) 55 CLR 608; [1936] ALR 482. (1965) 113 CLR 54; [1965] ALR 984. See G Sawer, Australian Federal Politics and Law 1901–1929, Melbourne University Press, Melbourne, 1956, pp 117, 124. See J Clarke, P Keyser and J Stellios, Australian Constitutional Law: Materials and Commentary, 9th ed, LexisNexis Butterworths, Sydney, 2009, 1.9.5–1.9.7. Editor: The Legal Secretary to the Committee was Jack Richardson. For a list of the Constitutional Conventions, see G Carney, The Constitutional Systems of the

7.

8. 9. 10.

Australian States and Territories, Cambridge University Press, Melbourne, 2006, pp 489–90. For a reasonably comprehensive account of referendum results, see S Bennett and S Brennan, ‘Constitutional Referenda In Australia’ (Research Paper No 2, Parliamentary Library, Parliament of Australia, 1999–2000). House of Representatives, Legal and Constitutional Affairs Committee, Select Sources on Constitutional Change in Australia 1901–1997 (1997), p 59. Bennett and Brennan, note 7 above, p 24. In isolated instances there has not been a statement of the ‘no case’.

[page 527]

Appendix A

The Constitution This Constitution is divided as follows: Chapter I — Part I — Part II — Part III — Part IV — Part V — Chapter II — Chapter III — Chapter IV — Chapter V — Chapter VI — Chapter VII — Chapter — VIII The Schedule

The Parliament General The Senate The House of Representatives Both Houses of the Parliament Powers of the Parliament The Executive Government The Judicature Finance and Trade The States New States Miscellaneous Alteration of the Constitution

CHAPTER I — THE PARLIAMENT PART I — GENERAL

Legislative power 1 The legislative power of the Commonwealth shall be vested in a Federal Parliament, which shall consist of the Queen, a Senate, and a House of Representatives, and which is hereinafter called The Parliament, or The Parliament of the Commonwealth. [page 528]

Governor-General 2 A Governor-General appointed by the Queen shall be Her Majesty’s representative in the Commonwealth, and shall have and may exercise in the Commonwealth during the Queen’s pleasure, but subject to this Constitution, such powers and functions of the Queen as Her Majesty may be pleased to assign to him.

Salary of Governor-General 3 There shall be payable to the Queen out of the Consolidated Revenue fund of the Commonwealth, for the salary of the Governor-General, an annual sum which, until the Parliament otherwise provides, shall be ten thousand pounds. The salary of a Governor-General shall not be altered during his continuance in office.

Provisions relating to Governor-General 4 The provisions of this Constitution relating to the Governor-General extend and apply to the Governor-General for the time being, or such person as the Queen may appoint to administer the Government of the Commonwealth; but no such person shall be entitled to receive any salary from the Commonwealth in respect of any other office during his administration of the Government of the Commonwealth.

Sessions of Parliament. Prorogation and dissolution 5 The Governor-General may appoint such times for holding the sessions of the Parliament as he thinks fit, and may also from time to time, by Proclamation or otherwise, prorogue the Parliament, and may in like manner dissolve the House of Representatives.

Summoning Parliament After any general election the Parliament shall be summoned to meet not later than thirty days after the day appointed for the return of the writs. [page 529]

First session The Parliament shall be summoned to meet not later than six months after the establishment of the Commonwealth.

Yearly session of Parliament 6 There shall be a session of the Parliament once at least in every year, so that twelve months shall not intervene between the last sitting of the Parliament in one session and its first sitting in the next session.

PART II — THE SENATE The Senate 7 The Senate shall be composed of senators for each State, directly chosen by the people of the State, voting, until the Parliament otherwise provides, as one electorate. But until the Parliament of the Commonwealth otherwise provides, the Parliament of the State of Queensland, if that State be an Original State, may

make laws dividing the State into divisions and determining the number of senators to be chosen for each division, and in the absence of such provision the State shall be one electorate. Until the Parliament otherwise provides there shall be six senators for each Original State.1 The Parliament may make laws increasing or diminishing the number of senators for each State, but so that equal representation of the several Original States shall be maintained and that no Original State shall have less than six senators. The senators shall be chosen for a term of six years, and the names of the senators chosen for each State shall be certified by the Governor to the Governor-General. [page 530]

Qualification of electors 8 The qualification of electors of senators shall be in each State that which is prescribed by this Constitution, or by the Parliament, as the qualification for electors of members of the House of Representatives; but in the choosing of senators each elector shall vote only once.

Method of election of senators 9 The Parliament of the Commonwealth may make laws prescribing the method of choosing senators, but so that the method shall be uniform for all the States. Subject to any such law, the Parliament of each State may make laws prescribing the method of choosing the senators for that State.

Times and places The Parliament of a State may make laws for determining the times and places of elections of senators for the State.

Application of State laws 10 Until the Parliament otherwise provides, but subject to this Constitution, the laws in force in each State, for the time being, relating to elections for the more numerous House of the Parliament of the State shall, as nearly as practicable, apply to elections of senators for the State.

Failure to choose senators 11 The Senate may proceed to the despatch of business, notwithstanding the failure of any State to provide for its representation in the Senate.

Issue of writs 12 The Governor of any State may cause writs to be issued for elections of senators for the State. In case of the dissolution of the Senate the writs shall be issued within ten days from the proclamation of such dissolution. [page 531]

Rotation of senators 13 As soon as may be after the Senate first meets, and after each first meeting of the Senate following a dissolution thereof, the Senate shall divide the senators chosen for each State into two classes, as nearly equal in number as practicable; and the places of the senators of the first class shall become vacant at the expiration of the third year three years, and the places of those of the second class at the expiration of the sixth year six years, from the beginning of their term of service; and afterwards the places of senators shall become vacant at the expiration of six years from the beginning of their term of service. The election to fill vacant places shall be made in the year at the expiration of which within one year before the places are to become vacant. For the purposes of this section the term of service of a senator shall be taken

to begin on the first day of January July following the day of his election, except in the cases of the first election and of the election next after any dissolution of the Senate, when it shall be taken to begin on the first day of January July preceding the day of his election. [s 13 amended by the Constitution Alteration (Senate Elections) Act 1906 (Cth), Act 1 of 1907 s 2, effective from 3 Apr 1907]

Further provision for rotation 14 Whenever the number of senators for a State is increased or diminished, the Parliament of the Commonwealth may make such provision for the vacating of the places of senators for the State as it deems necessary to maintain regularity in the rotation.

Casual vacancies 15 If the place of a senator becomes vacant before the expiration of his term of service, the House of Parliament of the State for which he was chosen shall, sitting and voting together, choose a person to hold the place until the expiration of the term, or until the election of a successor as hereinafter [page 532] provided, whichever first happens. But if the Houses of Parliament of the State are not in session at the time when the vacancy is notified, the Governor of the State, with the advice of the Executive Council thereof, may appoint a person to hold the place until the expiration of fourteen days after the beginning of the next session of the Parliament of the State, or until the election of a successor, whichever first happens. At the next general election of members of the House of Representatives, or at the next election of senators for the State, whichever first happens, a successor shall, if the term has not then expired, be chosen to hold the place from the date of his election until the expiration of the term.

The name of any senator so chosen or appointed shall be certified by the Governor of the State to the Governor General. If the place of a senator becomes vacant before the expiration of his term of service, the Houses of Parliament of the State for which he was chosen, sitting and voting together, or, if there is only one House of that Parliament, that House, shall choose a person to hold the place until the expiration of the term. But if the Parliament of the State is not in session when the vacancy is notified, the Governor of the State, with the advice of the Executive Council thereof, may appoint a person to hold the place until the expiration of fourteen days from the beginning of the next session of the Parliament of the State or the expiration of the term, whichever first happens. Where a vacancy has at any time occurred in the place of a senator chosen by the people of a State and, at the time when he was so chosen, he was publicly recognized by a particular political party as being an endorsed candidate of that party and publicly represented himself to be such a candidate, a person chosen or appointed under this section in consequence of that vacancy, or in consequence of that vacancy and a subsequent vacancy or vacancies, shall, unless there is no member of that party available to be chosen or appointed, be a member of that party. [page 533] Where: (a) in accordance with the last preceding paragraph, a member of a particular political party is chosen or appointed to hold the place of a senator whose place had become vacant; and (b) before taking his seat he ceases to be a member of that party (otherwise than by reason of the party having ceased to exist); he shall be deemed not to have been so chosen or appointed and the vacancy shall be again notified in accordance with section twenty-one of this Constitution.

The name of any senator chosen or appointed under this section shall be certified by the Governor of the State to the Governor-General. If the place of a senator chosen by the people of a State at the election of senators last held before the commencement of the Constitution Alteration (Senate Casual Vacancies) 1977 became vacant before that commencement and, at that commencement, no person chosen by the House or Houses of Parliament of the State, or appointed by the Governor of the State, in consequence of that vacancy, or in consequence of that vacancy and a subsequent vacancy or vacancies, held office, this section applies as if the place of the senator chosen by the people of the State had become vacant after that commencement. A senator holding office at the commencement of the Constitution Alteration (Senate Casual Vacancies) 1977, being a senator appointed by the Governor of a State in consequence of a vacancy that had at any time occurred in the place of a senator chosen by the people of the State, shall be deemed to have been appointed to hold the place until the expiration of fourteen days after the beginning of the next session of the Parliament of the State that commenced or commences after he was appointed and further action under this section shall be taken as if the vacancy in the place of the senator chosen by the people of the State had occurred after that commencement. [page 534] Subject to the next succeeding paragraph, a senator holding office at the commencement of the Constitution Alteration (Senate Casual Vacancies) 1977 who was chosen by the House or Houses of Parliament of a State in consequence of a vacancy that had at any time occurred in the place of a senator chosen by the people of the State shall be deemed to have been chosen to hold office until the expiration of the term of service of the senator elected by the people of the State. If, at or before the commencement of the Constitution Alteration (Senate Casual Vacancies) 1977, a law to alter the Constitution entitled

“Constitution Alteration (Simultaneous Elections) 1977” came into operation, a senator holding office at the commencement of that law who was chosen by the House or Houses of Parliament of a State in consequence of a vacancy that had at any time occurred in the place of a senator chosen by the people of the State shall be deemed to have been chosen to hold office: (a) if the senator elected by the people of the State had a term of service expiring on the thirtieth day of June, One thousand nine hundred and seventy-eight — until the expiration or dissolution of the first House of Representatives to expire or be dissolved after that law came into operation; or (b) if the senator elected by the people of the State had a term of service expiring on the thirtieth day of June, One thousand nine hundred and eighty-one — until the expiration or dissolution of the second House of Representatives to expire or be dissolved after that law came into operation or, if there is an earlier dissolution of the Senate, until that dissolution. [s 15 substituted by the Constitution Alteration (Senate Casual Vacancies) Act 1977 (Cth), Act 82 of 1977 s 2, effective from 29 Jul 1977]

Qualifications of senator 16 The qualifications of a senator shall be the same as those of a member of the House of Representatives. [page 535]

Election of President 17 The Senate shall, before proceeding to the despatch of any other business, choose a senator to be the President of the Senate; and as often as the office of President becomes vacant the Senate shall again choose a senator to be the President.

The President shall cease to hold his office if he ceases to be a senator. He may be removed from office by a vote of the Senate, or he may resign his office or his seat by writing addressed to the Governor-General.

Absence of President 18 Before or during any absence of the President, the Senate may choose a senator to perform his duties in his absence.

Resignation of senator 19 A senator may, by writing addressed to the President, or to the GovernorGeneral if there is no President or if the President is absent from the Commonwealth, resign his place, which thereupon shall become vacant.

Vacancy by absence 20 The place of a senator shall become vacant if for two consecutive months of any session of the Parliament he, without the permission of the Senate, fails to attend the Senate.

Vacancy to be notified 21 Whenever a vacancy happens in the Senate, the President, or if there is no President or if the President is absent from the Commonwealth the GovernorGeneral, shall notify the same to the Governor of the State in the representation of which the vacancy has happened. [page 536]

Quorum 22 Until the Parliament otherwise provides, the presence of at least one-third of the whole number of the senators shall be necessary to constitute a meeting of

the Senate for the exercise of its powers.

Voting in Senate 23 Questions arising in the Senate shall be determined by a majority of votes, and each senator shall have one vote. The President shall in all cases be entitled to a vote; and when the votes are equal the question shall pass in the negative.

PART III — THE HOUSE OF REPRESENTATIVES Constitution of House of Representatives 24 The House of Representatives shall be composed of members directly chosen by the people of the Commonwealth, and the number of such members shall be, as nearly as practicable, twice the number of the senators. The number of members chosen in the several States shall be in proportion to the respective numbers of their people, and shall, until the Parliament otherwise provides, be determined, whenever necessary, in the following manner: (i) a quota shall be ascertained by dividing the number of the people of the Commonwealth, as shown by the latest statistics of the Commonwealth, by twice the number of the senators; (ii) the number of members to be chosen in each State shall be determined by dividing the number of the people of the State, as shown by the latest statistics of the Commonwealth, by the quota; and if on such division there is a remainder greater than one-half of the quota, one more member shall be chosen in the State. But notwithstanding anything in this section, five members at least shall be chosen in each Original State. [page 537]

Provision as to races disqualified from voting 25 For the purposes of the last section, if by the law of any State all persons of any race are disqualified from voting at elections for the more numerous House of the Parliament of the State, then, in reckoning the number of the people of the State or of the Commonwealth, persons of that race resident in that State shall not be counted.

Representatives in first Parliament 26 Notwithstanding anything in section twenty-four, the number of members to be chosen in each State at the first election shall be as follows: New South Wales………………………………..twenty-three; Victoria……………………………………………..twenty; Queensland………………………………………..eight; South Australia……………………………………six; Tasmania……………………………………………five; Provided that if Western Australia is an Original State, the numbers shall be as follows: New South Wales………………………………..twenty-six; Victoria……………………………………………..twenty-three; Queensland………………………………………..nine; South Australia……………………………………seven; Western Australia………………………………..five; Tasmania……………………………………………five.

Alteration of number of members 27 Subject to this Constitution, the Parliament may make laws for increasing or diminishing the number of the members of the House of Representatives.

[page 538]

Duration of House of Representatives 28 Every House of Representatives shall continue for three years from the first meeting of the House, and no longer, but may be sooner dissolved by the Governor-General.

Electoral divisions 29 Until the Parliament of the Commonwealth otherwise provides, the Parliament of any State may make laws for determining the divisions in each State for which members of the House of Representatives may be chosen, and the number of members to be chosen for each division. A division shall not be formed out of parts of different States. In the absence of other provision, each State shall be one electorate.

Qualification of electors 30 Until the Parliament otherwise provides, the qualification of electors of members of the House of Representatives shall be in each State that which is prescribed by the law of the State as the qualification of electors of the more numerous House of Parliament of the State; but in the choosing of members each elector shall vote only once.

Application of State laws 31 Until the Parliament otherwise provides, but subject to this Constitution, the laws in force in each State for the time being relating to elections for the more numerous House of the Parliament of the State shall, as nearly as practicable, apply to elections in the State of members of the House of Representatives.

Writs for general election

32 The Governor-General in Council may cause writs to be issued for general elections of members of the House of Representatives. [page 539] After the first general election, the writs shall be issued within ten days from the expiry of a House of Representatives or from the proclamation of a dissolution thereof.

Writs for vacancies 33 Whenever a vacancy happens in the House of Representatives, the Speaker shall issue his writ for the election of a new member, or if there is no Speaker or if he is absent from the Commonwealth the Governor-General in Council may issue the writ.

Qualifications of members 34 Until the Parliament otherwise provides, the qualifications of a member of the House of Representatives shall be as follows: (i) he must be of the full age of twenty-one years, and must be an elector entitled to vote at the election of members of the House of Representatives, or a person qualified to become such elector, and must have been for three years at the least a resident within the limits of the Commonwealth as existing at the time when he is chosen; (ii) he must be a subject of the Queen, either natural-born or for at least five years naturalized under a law of the United Kingdom, or of a Colony which has become or becomes a State, or of the Commonwealth, or of a State.

Election of Speaker 35

The House of Representatives shall, before proceeding to the despatch of

any other business, choose a member to be the Speaker of the House, and as often as the office of Speaker becomes vacant the House shall again choose a member to be the Speaker. [page 540] The Speaker shall cease to hold his office if he ceases to be a member. He may be removed from office by a vote of the House, or he may resign his office or his seat by writing addressed to the Governor-General.

Absence of Speaker 36 Before or during any absence of the Speaker, the House of Representatives may choose a member to perform his duties in his absence.

Resignation of member 37 A member may by writing addressed to the Speaker, or to the GovernorGeneral if there is no Speaker or if the Speaker is absent from the Commonwealth, resign his place, which thereupon shall become vacant.

Vacancy by absence 38 The place of a member shall become vacant if for two consecutive months of any session of the Parliament he, without the permission of the House, fails to attend the House.

Quorum 39 Until the Parliament otherwise provides, the presence of at least one-third of the whole number of the members of the House of Representatives shall be necessary to constitute a meeting of the House for the exercise of its powers.

Voting in House of Representatives 40 Questions arising in the House of Representatives shall be determined by a majority of votes other than that of the Speaker. The Speaker shall not vote unless the numbers are equal, and then he shall have a casting vote.

PART IV — BOTH HOUSES OF THE PARLIAMENT Right of electors of States 41 No adult person who has or acquires a right to vote at elections for the more numerous House of the Parliament of a State shall, while the right [page 541] continues, be prevented by any law of the Commonwealth from voting at elections for either House of the Parliament of the Commonwealth.

Oath or affirmation of allegiance 42 Every senator and every member of the House of Representatives shall before taking his seat make and subscribe before the Governor-General, or some person authorised by him, an oath or affirmation of allegiance in the form set forth in the schedule to this Constitution.

Member of one House ineligible for other 43 A member of either House of the Parliament shall be incapable of being chosen or of sitting as a member of the other House.

Disqualification 44

Any person who: (i) is under any acknowledgment of allegiance, obedience, or adherence to a

foreign power, or is a subject or a citizen or entitled to the rights or privileges of a subject or a citizen of a foreign power; or (ii) is attainted of treason, or has been convicted and is under sentence, or subject to be sentenced, for any offence punishable under the law of the Commonwealth or of a State by imprisonment for one year or longer; or (iii) is an undischarged bankrupt or insolvent; or (iv) holds any office of profit under the Crown, or any pension payable during the pleasure of the Crown out of any of the revenues of the Commonwealth; or (v) has any direct or indirect pecuniary interest in any agreement with the Public Service of the Commonwealth otherwise than as a member and in common with the other members of an incorporated company consisting of more than twenty-five persons; shall be incapable of being chosen or of sitting as a senator or a member of the House of Representatives. [page 542] But subsection (iv) does not apply to the office of any of the Queen’s Ministers of State for the Commonwealth, or of any of the Queen’s Ministers for a State, or to the receipt of pay, half pay, or a pension, by any person as an officer or member of the Queen’s navy or army, or to the receipt of pay as an officer or member of the naval or military forces of the Commonwealth by any person whose services are not wholly employed by the Commonwealth.

Vacancy on happening of disqualification 45

If a senator or member of the House of Representatives: (i) becomes subject to any of the disabilities mentioned in the last preceding section; or (ii) takes the benefit, whether by assignment, composition, or otherwise, of

any law relating to bankrupt or insolvent debtors; or (iii) directly or indirectly takes or agrees to take any fee or honorarium for services rendered to the Commonwealth, or for services rendered in the Parliament to any person or State; his place shall thereupon become vacant.

Penalty for sitting when disqualified 46 Until the Parliament otherwise provides, any person declared by this Constitution to be incapable of sitting as a senator or as a member of the House of Representatives shall, for every day on which he so sits, be liable to pay the sum of one hundred pounds to any person who sues for it in any court of competent jurisdiction.

Disputed elections 47 Until the Parliament otherwise provides, any question respecting the qualification of a senator or of a member of the House of Representatives, or respecting a vacancy in either House of the Parliament, and any question of a disputed election to either House, shall be determined by the House in which the question arises. [page 543]

Allowance to members 48 Until the Parliament otherwise provides, each senator and each member of the House of Representatives shall receive an allowance of four hundred pounds a year, to be reckoned from the day on which he takes his seat.

Privileges etc of Houses 49

The powers, privileges, and immunities of the Senate and of the House of

Representatives, and of the members and the committees of each House, shall be such as are declared by the Parliament, and until declared shall be those of the Commons House of Parliament of the United Kingdom, and of its members and committees, at the establishment of the Commonwealth.

Rules and orders 50

Each House of the Parliament may make rules and orders with respect to: (i) the mode in which its powers, privileges, and immunities may be exercised and upheld; (ii) the order and conduct of its business and proceedings either separately or jointly with the other House.

PART V — POWERS OF THE PARLIAMENT Legislative powers of the Parliament 51 The Parliament shall, subject to this Constitution, have power to make laws for the peace, order, and good government of the Commonwealth with respect to: (i)

trade and commerce with other countries, and among the States;

(ii)

taxation; but so as not to discriminate between States or parts of States; [page 544]

(iii)

bounties on the production or export of goods, but so that such bounties shall be uniform throughout the Commonwealth;

(iv)

borrowing money on the public credit of the Commonwealth;

(v)

postal, telegraphic, telephonic, and other like services;

(vi)

the naval and military defence of the Commonwealth and of the several States, and the control of the forces to execute and maintain

the laws of the Commonwealth; (vii)

lighthouses, lightships, beacons and buoys;

(viii)

astronomical and meteorological observations;

(ix)

quarantine;

(x)

fisheries in Australian waters beyond territorial limits;

(xi)

census and statistics;

(xii)

currency, coinage, and legal tender;

(xiii)

banking, other than State banking; also State banking extending beyond the limits of the State concerned, the incorporation of banks, and the issue of paper money;

(xiv)

insurance, other than State insurance; also State insurance extending beyond the limits of the State concerned;

(xv)

weights and measures;

(xvi)

bills of exchange and promissory notes;

(xvii)

bankruptcy and insolvency;

(xviii)

copyrights, patents of inventions and designs, and trade marks;

(xix)

naturalization and aliens;

(xx)

foreign corporations, and trading or financial corporations formed within the limits of the Commonwealth;

(xxi)

marriage;

(xxii)

divorce and matrimonial causes; and in relation thereto, parental rights, and the custody and guardianship of infants;

(xxiii)

invalid and old-age pensions;

(xxiiiA) the provision of maternity allowances, widows’ pensions, child endowment, unemployment, pharmaceutical, sickness and hospital benefits, medical and dental services (but not [page 545]

(xxiv)

so as to authorize any form of civil conscription), benefits to students and family allowances; the service and execution throughout the Commonwealth of the civil and criminal process and the judgments of the courts of the States;

(xxv)

the recognition throughout the Commonwealth of the laws, the public Acts and records, and the judicial proceedings of the States;

(xxvi)

the people of any race, other than the aboriginal race in any State, for whom it is deemed necessary to make special laws;

(xxvii)

immigration and emigration;

(xxviii) the influx of criminals; (xxix)

external affairs;

(xxx)

the relations of the Commonwealth with the islands of the Pacific;

(xxxi)

the acquisition of property on just terms from any State or person for any purpose in respect of which the Parliament has power to make laws;

(xxxii)

the control of railways with respect to transport for the naval and military purposes of the Commonwealth;

(xxxiii) the acquisition, with the consent of a State, of any railways of the State on terms arranged between the Commonwealth and the State; (xxxiv) railway construction and extension in any State with the consent of that State; (xxxv)

conciliation and arbitration for the prevention and settlement of industrial disputes extending beyond the limits of any one State;

(xxxvi) matters in respect of which this Constitution makes provision until the Parliament otherwise provides; (xxxvii) matters referred to the Parliament of the Commonwealth by the Parliament or Parliaments of any State or States, but so that the [page 546]

law shall extend only to States by whose Parliaments the matter is referred, or which afterwards adopt the law; (xxxviii) the exercise within the Commonwealth, at the request or with the concurrence of the Parliaments of all the States directly concerned, of any power which can at the establishment of this Constitution be exercised only by the Parliament of the United Kingdom or by the Federal Council of Australasia; (xxxix) matters incidental to the execution of any power vested by this Constitution in the Parliament or in either House thereof, or in the Government of the Commonwealth, or in the Federal Judicature, or in any department or officer of the Commonwealth. [s 51(xxiiiA) inserted by the Constitution Alteration (Social Services) Act 1946 (Cth), Act 81 of 1946 s 2, effective from 19 Dec 1946; s 51(xxvi) amended by the Constitution Alteration (Aboriginals) Act 1967 (Cth), Act 55 of 1967 s 2, effective from 10 Aug 1967]

Exclusive powers of the Parliament 52 The Parliament shall, subject to this Constitution, have exclusive power to make laws for the peace, order, and good government of the Commonwealth with respect to: (i) the seat of government of the Commonwealth, and all places acquired by the Commonwealth for public purposes; (ii) matters relating to any department of the public service the control of which is by this Constitution transferred to the Executive Government of the Commonwealth; (iii) other matters declared by this Constitution to be within the exclusive power of the Parliament.

Powers of the Houses in respect of legislation 53 Proposed laws appropriating revenue or moneys, or imposing taxation, shall not originate in the Senate. But a proposed law shall not be taken to appropriate revenue or moneys, or to impose taxation, by reason only of its

[page 547] containing provisions for the imposition or appropriation of fines or other pecuniary penalties, or for the demand or payment or appropriation of fees for licences, or fees for services under the proposed law. The Senate may not amend proposed laws imposing taxation, or proposed laws appropriating revenue or moneys for the ordinary annual services of the Government. The Senate may not amend any proposed law so as to increase any proposed charge or burden on the people. The Senate may at any stage return to the House of Representatives any proposed law which the Senate may not amend, requesting, by message, the omission or amendment of any items or provisions therein. And the House of Representatives may, if it thinks fit, make any of such omissions or amendments, with or without modifications. Except as provided in this section, the Senate shall have equal power with the House of Representatives in respect of all proposed laws.

Appropriation Bills 54 The proposed law which appropriates revenue or moneys for the ordinary annual services of the Government shall deal only with such appropriation.

Tax Bill 55 Laws imposing taxation shall deal only with the imposition of taxation, and any provision therein dealing with any other matter shall be of no effect. Laws imposing taxation, except laws imposing duties of customs or of excise, shall deal with one subject of taxation only; but laws imposing duties of customs shall deal with duties of customs only, and laws imposing duties of excise shall deal with duties of excise only.

Recommendation of money votes 56 A vote, resolution, or proposed law for the appropriation of revenue or moneys shall not be passed unless the purpose of the appropriation has in [page 548] the same session been recommended by message of the Governor-General to the House in which the proposal originated.

Disagreement between the Houses 57 If the House of Representatives passes any proposed law, and the Senate rejects or fails to pass it, or passes it with amendments to which the House of Representatives will not agree, and if after an interval of three months the House of Representatives, in the same or the next session, again passes the proposed law with or without any amendments which have been made, suggested, or agreed to by the Senate, and the Senate rejects or fails to pass it, or passes it with amendments to which the House of Representatives will not agree, the Governor-General may dissolve the Senate and the House of Representatives simultaneously. But such dissolution shall not take place within six months before the date of the expiry of the House of Representatives by effluxion of time. If after such dissolution the House of Representatives again passes the proposed law, with or without any amendments which have been made, suggested, or agreed to by the Senate, and the Senate rejects or fails to pass it, or passes it with amendments to which the House of Representatives will not agree, the Governor-General may convene a joint sitting of the members of the Senate and of the House of Representatives. The members present at the joint sitting may deliberate and shall vote together upon the proposed law as last proposed by the House of Representatives, and upon amendments, if any, which have been made therein by one House and not agreed to by the other, and any such amendments which

are affirmed by an absolute majority of the total number of the members of the Senate and House of Representatives shall be taken to have been carried, and if the proposed law, with the amendments, if any, so carried is affirmed by an absolute majority of the total number of the members of the Senate and House of Representatives, it shall be taken to have been duly passed by both Houses of the Parliament, and shall be presented to the Governor-General for the Queen’s assent. [page 549]

Royal assent to Bills 58 When a proposed law passed by both Houses of the Parliament is presented to the Governor-General for the Queen’s assent, he shall declare, according to his discretion, but subject to this Constitution, that he assents in the Queen’s name, or that he withholds assent, or that he reserves the law for the Queen’s pleasure.

Recommendations by Governor-General The Governor-General may return to the House in which it originated any proposed law so presented to him, and may transmit therewith any amendments which he may recommend, and the Houses may deal with the recommendation.

Disallowance by the Queen 59 The Queen may disallow any law within one year from the GovernorGeneral’s assent, and such disallowance on being made known by the GovernorGeneral by speech or message to each of the Houses of the Parliament, or by Proclamation, shall annul the law from the day when the disallowance is so made known.

Signification of Queen’s pleasure on Bills reserved

60 A proposed law reserved for the Queen’s pleasure shall not have any force unless and until within two years from the day on which it was presented to the Governor-General for the Queen’s assent the Governor-General makes known, by speech or message to each of the Houses of the Parliament, or by Proclamation, that it has received the Queen’s assent.

CHAPTER II — THE EXECUTIVE GOVERNMENT Executive power 61 The executive power of the Commonwealth is vested in the Queen and is exercisable by the Governor-General as the Queen’s representative, [page 550] and extends to the execution and maintenance of this Constitution, and of the laws of the Commonwealth.

Federal Executive Council 62 There shall be a Federal Executive Council to advise the Governor-General in the government of the Commonwealth, and the members of the Council shall be chosen and summoned by the Governor-General and sworn as Executive Councillors, and shall hold office during his pleasure.

Provisions referring to Governor-General 63 The provisions of this Constitution referring to the Governor-General in Council shall be construed as referring to the Governor-General acting with the advice of the Federal Executive Council.

Ministers of State

64 The Governor-General may appoint officers to administer such departments of State of the Commonwealth as the Governor-General in Council may establish. Such officers shall hold office during the pleasure of the Governor-General. They shall be members of the Federal Executive Council, and shall be the Queen’s Ministers of State for the Commonwealth.

Ministers to sit in Parliament After the first general election 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.

Number of Ministers 65 Until the Parliament otherwise provides, the Ministers of State shall not exceed seven in number, and shall hold such offices as the Parliament [page 551] prescribes, or, in the absence of provision, as the Governor-General directs.

Salaries of Ministers 66 There shall be payable to the Queen, out of the Consolidated Revenue Fund of the Commonwealth, for the salaries of the Ministers of State, an annual sum which, until the Parliament otherwise provides, shall not exceed twelve thousand pounds a year.

Appointment of civil servants 67 Until the Parliament otherwise provides, the appointment and removal of all other officers of the Executive Government of the Commonwealth shall be

vested in the Governor-General in Council, unless the appointment is delegated by the Governor-General in Council or by a law of the Commonwealth to some other authority.

Command of naval and military forces 68 The command in chief of the naval and military forces of the Commonwealth is vested in the Governor-General as the Queen’s representative.

Transfer of certain departments 69 On a date or dates to be proclaimed by the Governor-General after the establishment of the Commonwealth the following departments of the public service in each State shall become transferred to the Commonwealth: posts, telegraphs, and telephones; naval and military defence; lighthouses, lightships, beacons, and buoys; quarantine. [page 552] But the departments of customs and of excise in each State shall become transferred to the Commonwealth on its establishment.

Certain powers of Governors to vest in GovernorGeneral 70 In respect of matters which, under this Constitution, pass to the Executive Government of the Commonwealth, all powers and functions which at the establishment of the Commonwealth are vested in the Governor of a Colony, or in the Governor of a Colony with the advice of his Executive Council, or in any

authority of a Colony, shall vest in the Governor-General, or in the GovernorGeneral in Council, or in the authority exercising similar powers under the Commonwealth, as the case requires.

CHAPTER III — THE JUDICATURE Judicial power and Courts 71 The judicial power of the Commonwealth shall be vested in a Federal Supreme Court, to be called the High Court of Australia, and in such other federal courts as the Parliament creates, and in such other courts as it invests with federal jurisdiction. The High Court shall consist of a Chief Justice, and so many other Justices, not less than two, as the Parliament prescribes.

Judges’ appointment, tenure and remuneration 72 The Justices of the High Court and of the other courts created by the Parliament: (i) shall be appointed by the Governor-General in Council; (ii) shall not be removed except by the Governor-General in Council, on an address from both Houses of the Parliament in the same session, praying for such removal on the ground of proved misbehaviour or incapacity; [page 553] (iii) shall receive such remuneration as the Parliament may fix; but the remuneration shall not be diminished during their continuance in office. The appointment of a Justice of the High Court shall be for a term expiring upon his attaining the age of seventy years, and a person shall not be appointed as a Justice of the High Court if he has attained that age. The appointment of a Justice of a court created by the Parliament shall be for a term expiring upon his attaining the age that is, at the time of his

appointment, the maximum age for Justices of that court and a person shall not be appointed as a Justice of such a court if he has attained the age that is for the time being the maximum age for Justices of that court. Subject to this section, the maximum age for Justices of any court created by the Parliament is seventy years. The Parliament may make a law fixing an age that is less than seventy years as the maximum age for Justices of a court created by the Parliament and may at any time repeal or amend such a law, but any such repeal or amendment does not affect the term of office of a Justice under an appointment made before the repeal or amendment. A Justice of the High Court or of a court created by the Parliament may resign his office by writing under his hand delivered to the GovernorGeneral. Nothing in the provisions added to this section by the Constitution Alteration (Retirement of Judges) 1977 affects the continuance of a person in office as a Justice of a court under an appointment made before the commencement of those provisions. A reference in this section to the appointment of a Justice of the High Court or of a court created by the Parliament shall be read as including a reference to the appointment of a person who holds office as a Justice of the High Court or of a court created by the Parliament to another office of Justice of the same court having a different status or designation. [page 554] [s 72 amended by the Constitution Alteration (Retirement of Judges) Act 1977 (Cth), Act 83 of 1977 s 2, effective from 29 Jul 1977]

Appellate jurisdiction of High Court 73 The High Court shall have jurisdiction, with such exceptions and subject to such regulations as the Parliament prescribes, to hear and determine appeals

from all judgments, decrees, orders, and sentences: (i) of any Justice or Justices exercising the original jurisdiction of the High Court; (ii) of any other federal court, or court exercising federal jurisdiction; or of the Supreme Court of any State, or of any other court of any State from which at the establishment of the Commonwealth an appeal lies to the Queen in Council; (iii) of the Inter-State Commission, but as to questions of law only; and the judgment of the High Court in all such cases shall be final and conclusive. But no exception or regulation prescribed by the Parliament shall prevent the High Court from hearing and determining any appeal from the Supreme Court of a State in any matter in which at the establishment of the Commonwealth an appeal lies from such Supreme Court to the Queen in Council. Until the Parliament otherwise provides, the conditions of and restrictions on appeals to the Queen in Council from the Supreme Courts of the several States shall be applicable to appeals from them to the High Court.

Appeal to Queen in Council 74 No appeal shall be permitted to the Queen in Council from a decision of the High Court upon any question, howsoever arising, as to the limits inter se of the Constitutional powers of the Commonwealth and those of any State or States, or as to the limits inter se of the Constitutional powers of any two or more States, unless the High Court shall certify that the question is one which ought to be determined by Her Majesty in Council. [page 555] The High Court may so certify if satisfied that for any special reason the certificate should be granted, and thereupon an appeal shall lie to Her Majesty

in Council on the question without further leave. Except as provided in this section, this Constitution shall not impair any right which the Queen may be pleased to exercise by virtue of Her Royal prerogative to grant special leave of appeal from the High Court to Her Majesty in Council. The Parliament may make laws limiting the matters in which such leave may be asked, but proposed laws containing any such limitation shall be reserved by the Governor-General for Her Majesty’s pleasure.2

Original jurisdiction of High Court 75

In all matters: (i) arising under any treaty; (ii) affecting consuls or other representatives of other countries; (iii) in which the Commonwealth, or a person suing or being sued on behalf of the Commonwealth, is a party; (iv) between States, or between residents of different States, or between a State and a resident of another State; (v) in which a writ of mandamus or prohibition or an injunction is sought against an officer of the Commonwealth; the High Court shall have original jurisdiction.

Additional original jurisdiction 76 The Parliament may make laws conferring original jurisdiction on the High Court in any matter: (i) arising under this Constitution, or involving its interpretation; (ii) arising under any laws made by the Parliament; [page 556] (iii) of Admiralty and maritime jurisdiction;

(iv) relating to the same subject-matter claimed under the laws of different States.

Power to define jurisdiction 77 With respect to any of the matters mentioned in the last two sections the Parliament may make laws: (i) defining the jurisdiction of any federal court other than the High Court; (ii) defining the extent to which the jurisdiction of any federal court shall be exclusive of that which belongs to or is invested in the courts of the States; (iii) investing any court of a State with federal jurisdiction.

Proceedings against Commonwealth or State 78 The Parliament may make laws conferring rights to proceed against the Commonwealth or a State in respect of matters within the limits of the judicial power.

Number of judges 79 The federal jurisdiction of any court may be exercised by such number of judges as the Parliament prescribes.

Trial by jury 80 The trial on indictment of any offence against any law of the Commonwealth shall be by jury, and every such trial shall be held in the State where the offence was committed, and if the offence was not committed within any State the trial shall be held at such place or places as the Parliament prescribes. [page 557]

CHAPTER IV — FINANCE AND TRADE Consolidated Revenue Fund 81 All revenues or moneys raised or received by the Executive Government of the Commonwealth shall form one Consolidated Revenue Fund, to be appropriated for the purposes of the Commonwealth in the manner and subject to the charges and liabilities imposed by this Constitution.

Expenditure charged thereon 82 The costs, charges, and expenses incident to the collection, management, and receipt of the Consolidated Revenue Fund shall form the first charge thereon; and the revenue of the Commonwealth shall in the first instance be applied to the payment of the expenditure of the Commonwealth.

Money to be appropriated by law 83 No money shall be drawn from the Treasury of the Commonwealth except under appropriation made by law. But until the expiration of one month after the first meeting of the Parliament the Governor-General in Council may draw from the Treasury and expend such moneys as may be necessary for the maintenance of any department transferred to the Commonwealth and for the holding of the first elections for the Parliament.

Transfer of officers 84 When any department of the public service of a State becomes transferred to the Commonwealth, all officers of the department shall become subject to the control of the Executive Government of the Commonwealth. Any such officer who is not retained in the service of the Commonwealth shall, unless he is appointed to some other office of equal emolument in the public service of the State, be entitled to receive from the State any pension,

[page 558] gratuity, or other compensation, payable under the law of the State on the abolition of his office. Any such officer who is retained in the service of the Commonwealth shall preserve all his existing and accruing rights, and shall be entitled to retire from office at the time, and on the pension or retiring allowance, which would be permitted by the law of the State if his service with the Commonwealth were a continuation of his service with the State. Such pension or retiring allowance shall be paid to him by the Commonwealth; but the State shall pay to the Commonwealth a part thereof, to be calculated on the proportion which his term of service with the State bears to his whole term of service, and for the purpose of the calculation his salary shall be taken to be that paid to him by the State at the time of the transfer. Any officer who is, at the establishment of the Commonwealth, in the public service of a State, and who is, by consent of the Governor of the State with the advice of the Executive Council thereof, transferred to the public service of the Commonwealth, shall have the same rights as if he had been an officer of a department transferred to the Commonwealth and were retained in the service of the Commonwealth.

Transfer of property of State 85 When any department of the public service of a State is transferred to the Commonwealth: (i) all property of the State of any kind, used exclusively in connexion with the department, shall become vested in the Commonwealth; but, in the case of the departments controlling customs and excise and bounties, for such time only as the Governor-General in Council may declare to be necessary; (ii) the Commonwealth may acquire any property of the State, of any kind used, but not exclusively used in connexion with the department; the

value thereof shall, if no agreement can be made, be ascertained in, as nearly as may be, the manner in which the value of land, or of an interest in land, taken by the State for public [page 559] purposes is ascertained under the law of the State in force at the establishment of the Commonwealth; (iii) the Commonwealth shall compensate the State for the value of any property passing to the Commonwealth under this section; if no agreement can be made as to the mode of compensation, it shall be determined under laws to be made by the Parliament; (iv) the Commonwealth shall, at the date of the transfer, assume the current obligations of the State in respect of the department transferred.

[Customs, excise, and bounties] 86 On the establishment of the Commonwealth, the collection and control of duties of customs and of excise, and the control of the payment of bounties, shall pass to the Executive Government of the Commonwealth.

[Revenue from customs and excise duties] 87 During a period of ten years after the establishment of the Commonwealth and thereafter until the Parliament otherwise provides, of the net revenue of the Commonwealth from duties of customs and of excise not more than one-fourth shall be applied annually by the Commonwealth towards its expenditure. The balance shall, in accordance with this Constitution, be paid to the several States, or applied towards the payment of interest on debts of the several States taken over by the Commonwealth.

Uniform duties of customs

88 Uniform duties of customs shall be imposed within two years after the establishment of the Commonwealth.

Payment to States before uniform duties 89

Until the imposition of uniform duties of customs: (i) the Commonwealth shall credit to each State the revenues collected therein by the Commonwealth; [page 560] (ii) the Commonwealth shall debit to each State: (a) the expenditure therein of the Commonwealth incurred solely for the maintenance or continuance, as at the time of transfer, of any department transferred from the State to the Commonwealth; (b) the proportion of the State, according to the number of its people, in the other expenditure of the Commonwealth; (iii) the Commonwealth shall pay to each State month by month the balance (if any) in favour of the State.

Exclusive power over customs, excise, and bounties 90 On the imposition of uniform duties of customs the power of the Parliament to impose duties of customs and of excise, and to grant bounties on the production or export of goods, shall become exclusive. On the imposition of uniform duties of customs all laws of the several States imposing duties of customs or of excise, or offering bounties on the production or export of goods, shall cease to have effect, but any grant of or agreement for any such bounty lawfully made by or under the authority of the Government of any State shall be taken to be good if made before the thirtieth day of June, one thousand eight hundred and ninety-eight, and not otherwise.

Exceptions as to bounties 91 Nothing in this Constitution prohibits a State from granting any aid to or bounty on mining for gold, silver, or other metals, nor from granting, with the consent of both Houses of the Parliament of the Commonwealth expressed by resolution, any aid to or bounty on the production or export of goods.

Trade within the Commonwealth to be free 92 On the imposition of uniform duties of customs, trade, commerce, and intercourse among the States, whether by means of internal carriage or ocean navigation, shall be absolutely free. [page 561] But notwithstanding anything in this Constitution, goods imported before the imposition of uniform duties of customs into any State, or into any Colony which, whilst the goods remain therein, becomes a State, shall, on thence passing into another State within two years after the imposition of such duties, be liable to any duty chargeable on the importation of such goods into the Commonwealth, less any duty paid in respect of the goods on their importation.

Payment to States for five years after uniform tariffs 93 During the first five years after the imposition of uniform duties of customs, and thereafter until the Parliament otherwise provides: (i) the duties of customs chargeable on goods imported into a State and afterwards passing into another State for consumption, and the duties of excise paid on goods produced or manufactured in a State and afterwards passing into another State for consumption, shall be taken to have been collected not in the former but in the latter State; (ii) subject to the last subsection, the Commonwealth shall credit revenue, debit expenditure, and pay balances to the several States as prescribed for

the period preceding the imposition of uniform duties of customs.

Distribution of surplus 94 After five years from the imposition of uniform duties of customs, the Parliament may provide, on such basis as it deems fair, for the monthly payment to the several States of all surplus revenue of the Commonwealth.

Customs duties of Western Australia 95 Notwithstanding anything in this Constitution, the Parliament of the State of Western Australia, if that State be an Original State, may, during the first five years after the imposition of uniform duties of customs, impose duties of customs on goods passing into that State and not originally [page 562] imported from beyond the limits of the Commonwealth; and such duties shall be collected by the Commonwealth. But any duty so imposed on any goods shall not exceed during the first of such years the duty chargeable on the goods under the law of Western Australia in force at the imposition of uniform duties, and shall not exceed during the second, third, fourth, and fifth of such years respectively, four-fifths, three-fifths, two-fifths, and one-fifth of such latter duty, and all duties imposed under this section shall cease at the expiration of the fifth year after the imposition of uniform duties. If at any time during the five years the duty on any goods under this section is higher than the duty imposed by the Commonwealth on the importation of the like goods, then such higher duty shall be collected on the goods when imported into Western Australia from beyond the limits of the Commonwealth.

Financial assistance to States

96 During a period of ten years after the establishment of the Commonwealth and thereafter until the Parliament otherwise provides, the Parliament may grant financial assistance to any State on such terms and conditions as the Parliament thinks fit.

Audit 97 Until the Parliament otherwise provides, the laws in force in any Colony which has become or becomes a State with respect to the receipt of revenue and the expenditure of money on account of the Government of the Colony, and the review and audit of such receipt and expenditure, shall apply to the receipt of revenue and the expenditure of money on account of the Commonwealth in the State in the same manner as if the Commonwealth, or the Government or an officer of the Commonwealth, were mentioned whenever the Colony, or the Government or an officer of the Colony, is mentioned. [page 563]

Trade and commerce includes navigation and State railways 98 The power of the Parliament to make laws with respect to trade and commerce extends to navigation and shipping, and to railways the property of any State.

Commonwealth not to give preference 99 The Commonwealth shall not, by any law or regulation of trade, commerce, or revenue, give preference to one State or any part thereof over another State or any part thereof.

Nor abridge right to use water 100

The Commonwealth shall not, by any law or regulation of trade or

commerce, abridge the right of a State or of the residents therein to the reasonable use of the waters of rivers for conservation or irrigation.

Inter-State Commission 101 There shall be an Inter-State Commission, with such powers of adjudication and administration as the Parliament deems necessary for the execution and maintenance, within the Commonwealth, of the provisions of this Constitution relating to trade and commerce, and of all laws made thereunder.

Parliament may forbid preferences by State 102 The Parliament may by any law with respect to trade or commerce forbid, as to railways, any preference or discrimination by any State, or by any authority constituted under a State, if such preference or discrimination is undue and unreasonable, or unjust to any State; due regard being had to the financial responsibilities incurred by any State in connexion with the construction and maintenance of its railways. But no preference or discrimination shall, within the meaning of this section, be taken to be [page 564] undue and unreasonable, or unjust to any State, unless so adjudged by the InterState Commission.

Commissioners’ appointment, tenure, and remuneration 103

The members of the Inter-State Commission:

(i) shall be appointed by the Governor-General in Council; (ii) shall hold office for seven years, but may be removed within that time by the Governor-General in Council, on an address from both Houses of the Parliament in the same session praying for such removal on the

ground of proved misbehaviour or incapacity; (iii) shall receive such remuneration as the Parliament may fix; but such remuneration shall not be diminished during their continuance in office.

Saving of certain rates 104 Nothing in this Constitution shall render unlawful any rate for the carriage of goods upon a railway, the property of a State, if the rate is deemed by the Inter-State Commission to be necessary for the development of the territory of the State, and if the rate applies equally to goods within the State and to goods passing into the State from other States.

Taking over public debts of States 105 The Parliament may take over from the States their public debts as existing at the establishment of the Commonwealth, or a proportion thereof according to the respective numbers of their people as shown by the latest statistics of the Commonwealth, and may convert, renew, or consolidate such debts, or any part thereof; and the States shall indemnify the Commonwealth in respect of the debts taken over, and thereafter the interest payable in respect of the debts shall be deducted and retained from the portions of the surplus revenue of the Commonwealth payable to the [page 565] several States, or if such surplus is insufficient, or if there is no surplus, then the deficiency or the whole amount shall be paid by the several States. [s 105 amended by the Constitution Alteration (State Debts) Act 1909 (Cth), Act 3 of 1910 s 2, effective from 6 Aug 1910]

Agreements with respect to State debts 105A (1) The Commonwealth may make agreements with the States with

respect to the public debts of the States, including: (a) the taking over of such debts by the Commonwealth; (b) the management of such debts; (c) the payment of interest and the provision and management of sinking funds in respect of such debts; (d) the consolidation, renewal, conversion, and redemption of such debts; (e) the indemnification of the Commonwealth by the States in respect of debts taken over by the Commonwealth; and (f) the borrowing of money by the States or by the Commonwealth, or by the Commonwealth for the States. (2) The Parliament may make laws for validating any such agreement made before the commencement of this section. (3) The Parliament may make laws for the carrying out by the parties thereto of any such agreement. (4) Any such agreement may be varied or rescinded by the parties thereto. (5) Every such agreement and any such variation thereof shall be binding upon the Commonwealth and the States parties thereto notwithstanding anything contained in this Constitution or the Constitution of the several States or in any law of the Parliament of the Commonwealth or of any State. (6) The powers conferred by this section shall not be construed as being limited in any way by the provisions of section one hundred and five of this Constitution. [page 566] [s 105A inserted by the Constitution Alteration (State Debts) Act 1928 (Cth), Act 1 of 1929 s 2, effective from 13 Feb 1929]

CHAPTER V — THE STATES Saving of Constitutions 106 The Constitution of each State of the Commonwealth shall, subject to this Constitution, continue as at the establishment of the Commonwealth, or as at the admission or establishment of the State, as the case may be, until altered in accordance with the Constitution of the State.

Saving of power of State Parliaments 107 Every power of the Parliament of a Colony which has become or becomes a State, shall, unless it is by this Constitution exclusively vested in the Parliament of the Commonwealth or withdrawn from the Parliament of the State, continue as at the establishment of the Commonwealth, or as at the admission or establishment of the State, as the case may be.

Saving of State laws 108 Every law in force in a Colony which has become or becomes a State, and relating to any matter within the powers of the Parliament of the Commonwealth, shall, subject to this Constitution, continue in force in the State; and, until provision is made in that behalf by the Parliament of the Commonwealth, the Parliament of the State shall have such powers of alteration and of repeal in respect of any such law as the Parliament of the Colony had until the Colony became a State.

Inconsistency of laws 109 When a law of a State is inconsistent with a law of the Commonwealth, the latter shall prevail, and the former shall, to the extent of the inconsistency, be invalid. [page 567]

Provisions referring to Governor 110 The provisions of this Constitution relating to the Governor of a State extend and apply to the Governor for the time being of the State, or other chief executive officer or administrator of the government of the State.

States may surrender territory 111 The Parliament of a State may surrender any part of the State to the Commonwealth; and upon such surrender, and the acceptance thereof by the Commonwealth, such part of the State shall become subject to the exclusive jurisdiction of the Commonwealth.

States may levy charges for inspection laws 112 After uniform duties of customs have been imposed, a State may levy on imports or exports, or on goods passing into or out of the State, such charges as may be necessary for executing the inspection laws of the State; but the net produce of all charges so levied shall be for the use of the Commonwealth; and any such inspection laws may be annulled by the Parliament of the Commonwealth.

Intoxicating liquids 113 All fermented, distilled, or other intoxicating liquids passing into any State or remaining therein for use, consumption, sale, or storage, shall be subject to the laws of the State as if such liquids had been produced in the State.

States may not raise forces. Taxation of property of Commonwealth or State 114 A State shall not, without the consent of the Parliament of the Commonwealth, raise or maintain any naval or military force, or impose any tax on property of any kind belonging to the Commonwealth, nor shall

[page 568] the Commonwealth impose any tax on property of any kind belonging to a State.

States not to coin money 115 A State shall not coin money, nor make anything but gold and silver coin a legal tender in payment of debts.

Commonwealth not to legislate in respect of religion 116 The Commonwealth shall not make any law for establishing any religion, or for imposing any religious observance, or for prohibiting the free exercise of any religion, and no religious test shall be required as a qualification for any office or public trust under the Commonwealth.

Rights of residents in States 117 A subject of the Queen, resident in any State, shall not be subject in any other State to any disability or discrimination which would not be equally applicable to him if he were a subject of the Queen resident in such other State.

Recognition of laws etc of States 118 Full faith and credit shall be given, throughout the Commonwealth to the laws, the public Acts and records, and the judicial proceedings of every State.

Protection of States from invasion and violence 119 The Commonwealth shall protect every State against invasion and, on the application of the Executive Government of the State, against domestic violence.

Custody of offenders against laws of the Commonwealth 120 Every State shall make provision for the detention in its prisons of persons accused or convicted of offences against the laws of the [page 569] Commonwealth, and for the punishment of persons convicted of such offences, and the Parliament of the Commonwealth may make laws to give effect to this provision.

CHAPTER VI — NEW STATES New States may be admitted or established 121 The Parliament may admit to the Commonwealth or establish new States, and may upon such admission or establishment make or impose such terms and conditions, including the extent of representation in either House of the Parliament, as it thinks fit.

Government of territories 122 The Parliament may make laws for the government of any territory surrendered by any State to and accepted by the Commonwealth, or of any territory placed by the Queen under the authority of and accepted by the Commonwealth, or otherwise acquired by the Commonwealth, and may allow the representation of such territory in either House of the Parliament to the extent and on the terms which it thinks fit.

Alteration of limits of States 123 The Parliament of the Commonwealth may, with the consent of the Parliament of a State, and the approval of the majority of the electors of the

State voting upon the question, increase, diminish, or otherwise alter the limits of the State, upon such terms and conditions as may be agreed on, and may, with the like consent, make provision respecting the effect and operation of any increase or diminution or alteration of territory in relation to any State affected.

Formation of new States 124 A new State may be formed by separation of territory from a State, but only with the consent of the Parliament thereof, and a new State may be [page 570] formed by the union of two or more States or parts of States, but only with the consent of the Parliaments of the States affected.

CHAPTER VII — MISCELLANEOUS Seat of Government 125 The seat of Government of the Commonwealth shall be determined by the Parliament, and shall be within territory which shall have been granted to or acquired by the Commonwealth, and shall be vested in and belong to the Commonwealth, and shall be in the State of New South Wales, and be distant not less than one hundred miles from Sydney. Such territory shall contain an area of not less than one hundred square miles, and such portion thereof as shall consist of Crown lands shall be granted to the Commonwealth without any payment therefor. The Parliament shall sit at Melbourne until it meet at the seat of Government.

Power to Her Majesty to authorise Governor-General to appoint deputies

126 The Queen may authorise the Governor-General to appoint any person, or any persons jointly or severally, to be his deputy or deputies within any part of the Commonwealth, and in that capacity to exercise during the pleasure of the Governor-General such powers and functions of the Governor-General as he thinks fit to assign to such deputy or deputies, subject to any limitations expressed or directions given by the Queen; but the appointment of such deputy or deputies shall not affect the exercise by the Governor-General himself of any power or function.

Aborigines not to be counted in reckoning population 127 In reckoning the numbers of people of the Commonwealth, or of a State or other part of the Commonwealth, aboriginal natives shall not be counted [page 571] [s 127 repealed by the Constitution Alteration (Aboriginals) Act 1967 (Cth), Act 55 of 1967 s 3, effective from 10 Aug 1967]

CHAPTER VIII — ALTERATION OF THE CONSTITUTION Mode of altering the Constitution 128

This Constitution shall not be altered except in the following manner:

The proposed law for the alteration thereof must be passed by an absolute majority of each House of the Parliament, and not less than two nor more than six months after its passage through both Houses the proposed law shall be submitted in each State and Territory to the electors qualified to vote for the election of members of the House of Representatives. But if either House passes any such proposed law by an absolute majority,

and the other House rejects or fails to pass it, or passes it with any amendment to which the first-mentioned House will not agree, and if after an interval of three months the first-mentioned House in the same or the next session again passes the proposed law by an absolute majority with or without any amendment which has been made or agreed to by the other House, and such other House rejects or fails to pass it or passes it with any amendment to which the first-mentioned House will not agree, the Governor-General may submit the proposed law as last proposed by the first-mentioned House, and either with or without any amendments subsequently agreed to by both Houses, to the electors in each State and Territory qualified to vote for the election of the House of Representatives. When a proposed law is submitted to the electors the vote shall be taken in such manner as the Parliament prescribes. But until the qualification of electors of members of the House of Representatives becomes uniform throughout the Commonwealth, only one-half the electors voting for and against the proposed law shall be counted in any State in which adult suffrage prevails. [page 572] And if in a majority of the States a majority of the electors voting approve the proposed law, and if a majority of all the electors voting also approve the proposed law, it shall be presented to the Governor-General for the Queen’s assent. No alteration diminishing the proportionate representation of any State in either House of the Parliament, or the minimum number of representatives of a State in the House of Representatives, or increasing, diminishing, or otherwise altering the limits of the State, or in any manner affecting the provisions of the Constitution in relation thereto, shall become law unless the majority of the electors voting in that State approve the proposed law. In this section, Territory means any territory referred to in section one hundred and twenty-two of this Constitution in respect of which there is in force a law allowing its representation in the House of Representatives.

[s 128 amended by the Constitution Alteration (Referendums) Act 1977 (Cth), Act 84 of 1977 s 2, effective 29 Jul 1977]

SCHEDULE Oath I, A. B., do swear that I will be faithful and bear true allegiance to Her Majesty Queen Victoria, Her heirs and successors according to law. SO HELP ME GOD!

Affirmation I, A. B., do solemnly and sincerely affirm and declare that I will be faithful and bear true allegiance to Her Majesty Queen Victoria, Her heirs and successors according to law. (Note — The name of the King or Queen of the United Kingdom of Great Britain and Ireland for the time being is to be substituted from time to time.)

1. 2.

Editor: The number of senators for each State was increased to 12 by the Representation Act 1983 (Cth) s 3. Editor: See Privy Council (Limitation of Appeals) Act 1968 (Cth), Privy Council (Appeals from the High Court) Act 1975 (Cth).

[page 573]

Appendix B

Sir John Kerr’s Statement of Reasons Following his dismissal of Gough Whitlam on 11 November 1975, the Governor-General released this document outlining his reasons.

Statement by the Governor-General I have given careful consideration to the constitutional crisis and have made some decisions which I wish to explain.

Summary It has been necessary for me to find a democratic and constitutional solution to the current crisis which will permit the people of Australia to decide as soon as possible what should be the outcome of the deadlock which developed over supply between the two Houses of Parliament and between the Government and Opposition parties. The only solution consistent with the Constitution and with my oath of office and my responsibilities, authority and duty as GovernorGeneral is to terminate the commission as Prime Minister of Mr Whitlam and to arrange for a caretaker government able to secure supply and willing to let the issue go to the people. I shall summarise the elements of the problem and the reasons for my decision which places the matter before the people of Australia for prompt

determination. Because of the federal nature of our Constitution and because of its provisions the Senate undoubtedly has constitutional power to refuse or defer supply to the Government. Because of the principles of responsible government a Prime Minister who cannot obtain supply, including money [page 574] for carrying on the ordinary services of government, must either advise a general election or resign. If he refuses to do this I have the authority and indeed the duty under the Constitution to withdraw his Commission as Prime Minister. The position in Australia is quite different from the position in the United Kingdom. Here the confidence of both Houses on supply is necessary to ensure its provision. In the United Kingdom the confidence of the House of Commons alone is necessary. But both here and in the United Kingdom the duty of the Prime Minister is the same in a most important respect — if he cannot get supply he must resign or advise an election. If a Prime Minister refuses to resign or to advise an election, and this is the case with Mr Whitlam, my constitutional authority and duty require me to do what I have now done — to withdraw his Commission — and to invite the Leader of the Opposition to form a caretaker government — that is one that makes no appointments or dismissals and initiates no policies, until a general election is held. It is most desirable that he should guarantee supply. Mr Fraser will be asked to give the necessary undertakings and advise whether he is prepared to recommend a double dissolution. He will also be asked to guarantee supply. The decisions I have made were made after I was satisfied that Mr Whitlam could not obtain supply. No other decision open to me would enable the Australian people to decide for themselves what should be done. Once I had made up my mind, for my own part, what I must do if Mr Whitlam persisted in his stated intentions I consulted the Chief Justice of

Australia, Sir Garfield Barwick. I have his permission to say that I consulted him in this way. The result is that there will be an early general election for both Houses and the people can do what, in a democracy such as ours, is their responsibility and duty and theirs alone. It is for the people now to decide the issue which the two leaders have failed to settle. [page 575]

Detailed Statement of Decisions On 16 October the Senate deferred consideration of Appropriation Bills (Nos 1 & 2) 1975–1976. In the time which elapsed since then events made it clear that the Senate was determined to refuse to grant supply to the Government. In that time the Senate on no less than two occasions resolved to proceed no further with fresh Appropriation Bills, in identical terms, which had been passed by the House of Representatives. The determination of the Senate to maintain its refusal to grant supply was confirmed by the public statements made by the Leader of the Opposition, the Opposition having control of the Senate. By virtue of what has in fact happened there therefore came into existence a deadlock between the House of Representatives and the Senate on the central issue of supply without which all the ordinary services of the government cannot be maintained. I had the benefit of discussions with the Prime Minister and, with his approval, with the Leader of the Opposition and with the Treasurer and the Attorney-General. As a result of those discussions and having regard to the public statements of the Prime Minister and the Leader of the Opposition I have come regretfully to the conclusion that there is no likelihood of a compromise between the House of Representatives and the Senate nor for that matter between the Government and the Opposition. The deadlock which arose was one which, in the interests of the nation, had to be resolved as promptly as possible by means which are appropriate in our democratic system. In all the circumstances which have occurred the appropriate

means is a dissolution of the Parliament and an election for both Houses. No other course offers a sufficient assurance of resolving the deadlock and resolving it promptly. Parliamentary control of appropriation and accordingly of expenditure is a fundamental feature of our system of responsible government. In consequence it has been generally accepted that a government which has been denied supply by the Parliament cannot govern. So much at least is clear in cases where a ministry is refused supply by a popularly elected [page 576] Lower House. In other systems where an Upper House is denied the right to reject a money bill denial of supply can occur only at the instance of the Lower House. When, however, an Upper House possesses the power to reject a money bill including an appropriation bill, and exercises the power by denying supply, the principle that a government which has been denied supply by the Parliament should resign or go to an election must still apply — it is a necessary consequence of Parliamentary control of appropriation and expenditure and of the expectation that the ordinary and necessary services of government will continue to be provided. The Constitution combines the two elements of responsible government and federalism. The Senate is, like the House, a popularly elected chamber. It was designed to provide representation by States, not by electorates, and was given by Sec 53, equal powers with the House with respect to proposed laws, except in the respects mentioned in the section. It was denied power to originate or amend appropriation bills but was left with power to reject them or defer consideration of them. The Senate accordingly has the power and has exercised the power to refuse to grant supply to the Government. The Government stands in the position that it has been denied supply by the Parliament with all the consequences which flow from that fact. There has been public discussions about whether there is a convention deriving from the principles of responsible government that the Senate must

never under any circumstances exercise the power to reject an appropriation bill. The Constitution must prevail over any convention because, in determining the question of how far the conventions of responsible government have been grafted on to the federal compact, the Constitution itself must in the end control the situation. Sec 57 of the constitution provides a means, perhaps the usual means, of resolving a disagreement between the Houses with respect to a proposed law. But the machinery which it provides necessarily entails a considerable time lag which is quite inappropriate to a speedy resolution of the fundamental problems posed by the refusal of supply. Its presence in the Constitution does not cut down the reserve powers of the Governor-General. [page 577] I should be surprised if the Law Officers expressed the view that there is no reserve power in the Governor-General to dismiss a Ministry which has been refused supply by the Parliament and to commission a Ministry, as a caretaker ministry which will secure supply and recommend a dissolution, including where appropriate a double dissolution. This is a matter on which my mind is quite clear and I am acting in accordance with my own clear view of the principles laid down by the Constitution and of the nature, powers and responsibility of my office. There is one other point. There has been discussion of the possibility that a half-Senate election might be held under circumstances in which the Government has not obtained supply. If such advice were given to me I should feel constrained to reject it because a half-Senate election held whilst supply continues to be denied does not guarantee a prompt or sufficiently clear prospect of the deadlock being resolved in accordance with proper principles. When I refer to rejection of such advice I mean that, as I would find it necessary in the circumstances I have envisaged to determine Mr Whitlam’s commission and, as things have turned out have done so, he would not be Prime Minister and not able to give or persist with such advice.

The announced proposals about financing public servants, suppliers, contractors and others do not amount to a satisfactory alternative to supply. Government House Canberra 2600 11 November 1975

Index References are to page numbers

A Abbott, Tony .… 120, 377, 486 Aboriginal and Torres Strait Islander peoples see Indigenous people Acquisition of property see Compulsory acquisition Acts of Parliament see Legislative process Administrative Appeals Tribunal applications for review, 2014–15 .… 471 background to establishment .… 468, 469 establishment .… 469 freedom of information decisions .… 485 jurisdiction .… 471 outsourcing government functions, and .… 472–473 overview .… 470–471, 478 procedure .… 471–472 rules of evidence .… 471 Administrative decisions judicial review .… 469, 470 Administrative Review Council background to establishment .… 468

establishment .… 470 Administrative tribunals judicial power .… 65 states .… 486 Amendment of Constitution alternate procedure for proposal .… 515 Commonwealth–state conference, 1934 .… 516–518 Commonwealth–state conference, 1942 .… 518–519 communism referendum, 1951 .… 261 conduct of referendums .… 525 Constitution Bill 1891 .… 28 Constitutional Commission, 1985–88 .… 521–522 Constitutional Convention, 1998 .… 522 Constitutional Conventions, 1973–85 .… 520–521 Convention Debates, 1897–98 .… 37 cooperative federalism .… 333 covering clauses .… 516 deadlock between Houses .… 122–123 election of senators .… 59, 520, 524 Indigenous people .… 176, 188, 189, 190, 523 Joint Committee on Constitutional Review, 1956–59 .… 327, 519–520 limits to alteration .… 515–516 overview .… 158–159, 513, 514, 526 post-war reconstruction .… 519 referendum process .… 514–515

referral of powers .… 370 republic proposal .… 522, 524 Royal Commission on the Constitution, 1929 .… 516 social services .… 360, 523 success of referendums .… 59, 522–523 government support .… 524 Labor Party attempts .… 523 public support .… 525–526 reasons for failure .… 523–526 without referendum .… 513 air navigation .… 513–514 Appeals Privy Council .… 141, 159 Ashmore and Cartier Islands .… 298 ATSIC .… 183–184, 187 Australasian Federation Conference, 1890 .… 19–20, 21, 23 Australasian Federation League .… 29, 30 Australia Act 1986 background to introduction .… 143 Imperial Act .… 145 legal basis of Constitution .… 145–146 long title .… 143–144 main provisions .… 144–145 parliamentary sovereignty .… 146, 147 time of independence .… 147

transfer of sovereignty .… 146 Australian Antarctic Territory .… 297 Australian Country Party .… 86 Australian Curriculum Assessment and Reporting Authority .… 364–365 Australian Industries Preservation Act 1906 .… 57, 229 Australian Loan Council .… 333, 344 Australian Natives Association .… 29, 30, 31 Australian National Railways Commission .… 356 Australian Transport and Infrastructure Council .… 348 Australian Transport Council .… 347–348

B Balfour report .… 138, 268 Baker, Richard .… 22 Bank nationalisation .… 312, 499 Banking power .… 161, 234–235 Barton, Sir Edmund .… 21, 24, 29, 32, 33–35, 43, 47, 49, 51, 52, 58, 83, 162, 188, 193, 306, 409 Barwick, Sir Garfield .… 312, 313, 435, 436, 449, 450 Bicameral system .… 6, 63, 87, 385–386 Bill of rights constitutional rights, and .… 510–512 states and territories .… 511 United States .… 489

Bills see Legislative process Bland Committee report .… 469 Bowen, Lionel .… 370 Braddon clause .… 41, 46, 60, 67, 216 Braddon, Edward .… 32 Bray, Sir John .… 227 Brennan, Sir Gerard .… 472 Browne, Frank .… 107 Byers, Maurice .… 443

C Canada Balfour report .… 138 colonial history .… 265, 266 federal system .… 9, 21–22 interpretation of Constitution .… 154 pith and substance test .… 154 Privy Council of Canada .… 415 Statute of Westminster 1931 .… 139 World War II .… 140 Carruthers, Joseph .… 60 Chifley, Ben .… 87, 88 Child support .… 213–214 Christmas Island .… 298 Citizenship .… 142–143

Clark, Andrew Inglis .… 19, 22, 24, 25 Cleary, Phil .… 80 Cockburn, John .… 19, 32 Cocos (Keeling) Islands .… 297–298 Colonial history Australasian Federation Conference, 1890 .… 19–20, 21, 23 Australasian Federation League .… 29, 30 Australian Natives Association .… 29, 30, 31 Bathurst Convention, 1896 .… 31 bicameral legislatures .… 6 bond between colonies .… 265 British foreign policy .… 265–266, 267 Canada .… 265, 266 Charter of Justice .… 4 Colonial Office .… 12, 16 Constitution Bill .… 45, 48 constitutions of colonies .… 7, 9, 423 Convention Debates see Convention Debates, 1891; Convention Debates, 1897–98 convict population .… 5 Corowa Conference, 1893 .… 30 creation of colonies .… 5, 7 Crown privilege .… 423 customs and excise .… 10, 27, 33, 41, 224–225 Braddon clause .… 41, 46, 216

conflicts between colonies .… 10–11 Constitution Bill 1891 .… 27 Convention Debates, 1897–98 .… 33, 41, 193 protectionist policies .… 10, 11 uniform tariffs .… 11–12 defence .… 12, 17, 18, 243 federation of forces .… 14 New Guinea .… 12–13 review of establishments .… 13–14 economic depression .… 26, 28–29 enactment of Constitution .… 48 external affairs .… 265–266, 267, 269 territorial sea .… 274 treaties .… 266, 267 extraterritorial power .… 382 Federal Council of Australasia .… 17–18, 19 federal system .… 9–10, 21, 22 Canada .… 9, 21–22 defence .… 14 Wentworth Constitutional Committee .… 9–10 final steps to Federation .… 45, 49 delegation to England .… 47–48 Premiers’ Conference, 1899 .… 45–46, 216 referendum, 1898 .… 45

referendum, 1899 .… 47 immigration .… 14, 16 assisted migration .… 14 Chinese immigrants .… 15–16 gold discoveries .… 14–15 Indigenous people .… 173, 174, 177 nature of Crown title .… 178–179 terra nullius .… 177–178 legislative councils .… 5–7 New Guinea .… 12–13, 299 overview .… 8, 17, 20, 28 penal settlement .… 3–4 People’s Federal Convention, 1896 .… 31 population .… 5, 6, 9, 12, 15, 28, 29, 47 Indigenous people .… 173 Premiers’ Conference, 1895 .… 30, 31 Premiers’ Conference, 1899 .… 45–46, 216 Braddon clause .… 46, 216 grants to the states .… 46, 216 public support for Federation .… 28, 29, 30 referendums, 1898 .… 45 referendums, 1899 .… 47 representative government .… 6–7, 8 responsible government .… 7, 8, 9

self-government .… 4, 7, 8 Tenterfield oration .… 18–19 territorial sea .… 274, 336, 358 trade and commerce .… 10, 305 free trade .… 10, 11, 12 protectionist policies .… 10, 11 Van Diemen’s Land .… 4, 5 draft constitution .… 7 population .… 5, 6 Colonial Laws Validity Act 1865 .… 138–139, 143, 266 Colonial Office .… 12, 16, 267 Commonwealth and state powers concurrent powers .… 152, 154, 268, 378, 393 discrimination .… 164, 165, 166, 170, 355 distribution of powers .… 66–67, 378 dominance by Commonwealth .… 330, 369–370 Engineers’ case .… 163–164 immunity of instrumentalities .… 58, 59, 162, 163 implied prohibition doctrine .… 58–59, 163 inconsistency between laws see Inconsistency between laws industrial awards .… 165 industrial relations .… 370–371 Murray–Darling Basin Agreement .… 355 overview .… 162, 166, 167, 327–328, 369 Payroll Tax case .… 164, 328–329

priority of payments .… 168–169, 329 significant cases .… 328–330 State Banking case .… 164 state laws binding the Commonwealth .… 167–168, 170 general application laws .… 169–170 impairment of executive capacities .… 169, 330 inconsistent state laws .… 170–171 rule of law .… 169, 171 state superannuation schemes .… 166 Tasmanian Dam case .… 165, 328 Commonwealth and state relations Australian Loan Council .… 333, 344 cooperative arrangements .… 325, 333 corporations law .… 336–337 Financial Agreement, 1927 .… 333–334, 344 marketing schemes .… 336 petroleum exploration .… 335 Railways Standardisation Agreement .… 334–335 Snowy Mountains scheme .… 334 territorial sea .… 335–336 cooperative federalism report .… 375–377 Council of Australian Governments .… 337, 340–341, 342–343, 344, 345, 346, 351, 361–362, 364, 367, 372 federal balance .… 327, 369–370 attitudes of electorate .… 370–371

cooperative federalism report .… 375–377 Council for the Australian Federation .… 372 external affairs power .… 275, 278 federal future report .… 372–375 financial relations .… 373–374 High Court, and .… 373 industrial relations .… 370–371 reform approaches .… 377–379 Work Choices Act 2005 .… 239, 240–241, 242, 370, 373 federal offenders .… 325 Financial Agreement, 1927 .… 333–334, 344, 432–433 financial relations .… 325–326, 330, 332–333, 351, 367, 379, 380, 453 education .… 363, 364, 365 formula for grants .… 330–331, 332 Fraser era proposals .… 338 Grants Commission .… 330 general revenue grants .… 331 goods and services tax .… 331–332, 337, 362, 373 health and hospitals .… 360–363 housing .… 366–367 Intergovernmental Agreement, 2009 .… 345–347, 351, 361, 366 special purpose payments .… 331, 338 specific purpose payments .… 347, 361, 362, 367, 374 state revenues .… 330, 332–333

states’ financial dependence .… 325–326, 330, 378, 453 tied grants .… 331, 347, 374 uniform income tax scheme .… 326, 327, 330 High Court, and .… 373 ministerial councils .… 344–345 Attorneys-General .… 348–350 Australian Transport Council .… 347–348 education .… 363 Intergovernmental Agreement, 2009 .… 345–347 Murray–Darling Basin .… 350, 352–355, 359–360 national agreements .… 351 affordable housing .… 366–367 education .… 363–366 health and hospitals .… 360–363 oil and gas resources .… 356–359 rail transport .… 355–356 Snowy Mountains scheme .… 359–360 National Competition Council .… 342 National Competition Policy .… 341–342 National Partnership Agreement .… 351 Commonwealth and state relations Murray–Darling Basin .… 352–355 seamless national economy .… 351–352 National Reform Agenda .… 342–343 oil and gas resources .… 335, 356–359

overview .… 162, 325, 326–327, 367, 379–380, 458 Premiers’ Conferences .… 327, 333, 337, 339–340 prime ministerial initiatives .… 337 Fraser era .… 338 Hawke era .… 339–342 Whitlam era .… 338 Snowy Mountains scheme .… 331, 334, 359–360 Treaties Council .… 343–344 Commonwealth offences trial by jury .… 489, 502 literal approach .… 503 proceedings on indictment .… 502–503 requirements of trial .… 503–504 Commonwealth Parliament see Federal Parliament Commonwealth powers additional powers .… 411–412 banking power .… 161, 234–235 concept of federalism .… 61 concurrent powers .… 152, 154, 268, 378, 393 Convention Debates, 1891 .… 25 Convention Debates, 1897–98 .… 36–37, 216 corporations power see Corporations power currency .… 153 customs and excise .… 152, 224–225, 369–370

‘criterion of liability’ approach .… 225–226 excise, meaning .… 225–226 state franchise fees .… 225–226, 328 territories power, and .… 302 defence power see Defence power distribution of powers .… 66–67, 378 emergency situations .… 222 global financial crisis .… 222–223, 427–428 tax bonus payments .… 222–223, 427–428 exclusive powers .… 152, 153, 378, 466 express limitations .… 161–162 external affairs see External affairs power grants to the states see Grants to the states implied incidental power .… 157–158 inconsistency between laws see Inconsistency between laws Indigenous people .… 174, 187 amendment of Constitution .… 176, 188, 189, 190, 523 beneficial laws .… 188–189 Hindmarsh Island Bridge case .… 188, 189 intention of founders .… 187–188 industrial disputes see Conciliation and arbitration power insurance power .… 161, 234–235 interpretation see Interpretation overlap of powers .… 161

overview .… 60, 151–152, 526 plenary powers, as .… 240 purpose of laws .… 153 race power .… 174, 187 amendment of Constitution .… 176, 188, 189, 190 beneficial laws .… 188–189 Hindmarsh Island Bridge case .… 188, 189 intention of founders .… 187–188 social services .… 360 spending programs .… 428–430 state powers, and see Commonwealth and state powers subject matter .… 153 taxation see Taxation power territories power see Territories power trade and commerce see Trade and commerce power Commonwealth property states’ power to tax .… 214, 215 Commonwealth Public Service Act 1902 .… 55 Commonwealth revenue see also Grants to the states; Taxation power customs and excise .… 53, 369–370 Braddon clause .… 41, 46, 60, 67, 216 South Sea Islander labourers .… 54 surplus revenue .… 67–68, 325, 370 taxation revenue .… 203 Commonwealth–state conference, 1934 .… 516–518

Commonwealth–state conference, 1942 .… 518–519 Communist Party Dissolution Act 1950 .… 256–260 Compulsory acquisitions acquisition, meaning .… 500–501 choses in action .… 499 just terms .… 501–502 loss of profits .… 498–499 overview .… 463, 489, 498 property, meaning .… 498–500 reductions in entitlement .… 501 statutory rights .… 499–500 wartime measures .… 502 Conciliation and Arbitration Act 1904 .… 56–57, 287–288 Conciliation and Arbitration Bill 1904 .… 51–52, 56 Conciliation and arbitration power ambit claims .… 293 Commonwealth Court of Conciliation and Arbitration .… 287–288, 289 Convention Debates, 1891 .… 287 Convention Debates, 1897–98 .… 43–44, 239, 287 awards .… 290 Boilermakers’ case .… 290 judicial power .… 290–291 essential features .… 289–293 federal awards .… 292

federal unions .… 291 industrial dispute, meaning .… 291–292 interpretation .… 163–164, 291 overview .… 56, 152, 287, 288, 293 public holiday payments .… 252–253 railways .… 56, 58, 162 Work Choices Act 2005, and .… 238, 239, 241–242, 288, 328, 370 Consolidated Revenue Fund .… 53 Constitution amendment see Amendment of Constitution assessment of founders’ work .… 61–62, 71 bicameral system .… 63 Braddon clause .… 67 corporations power .… 68–69 cooperative federalism .… 62 distribution of legislative powers .… 66–67 executive .… 63–65 external affairs .… 68 inoperative sections .… 69–71 judicature .… 65–66 surplus Commonwealth revenue .… 67–68 Australia Act 1986 .… 145–146 Commonwealth Parliament see Federal Parliament Commonwealth and state cooperation .… 325 compulsory acquisition see Compulsory acquisition

Consolidated Revenue Fund .… 53 cooperative federalism .… 62 customs and excise .… 53 Braddon clause .… 41, 46, 60, 67 deadlocks between Houses .… 115, 121–123 alternative proposals .… 123–124 amendment of Constitution .… 122–123 double dissolution .… 61, 62, 63, 115, 121–122 joint sittings .… 117 distribution of legislative powers .… 66–67, 378 elections .… 49 enactment of Constitution .… 48 executive see Executive federal balance .… 239, 240–241, 242 High Court see High Court implied rights see Political communication; Voting inconsistent laws see Inconsistency between laws Indigenous people .… 190 individual rights see Constitutional rights inoperative sections .… 69–71 interpretation see Interpretation interstate trade see Freedom of interstate trade; Trade and commerce power judiciary see Judiciary legal basis .… 145–146

legislative powers see Commonwealth powers; State powers monarch .… 148 overview .… 61 Parliamentary Committees .… 89 parliamentary privilege .… 89, 106 reference power see Referral of powers religious freedom see Religious freedom representative government .… 62 responsible government .… 62 rule of law .… 171 state constitutions .… 381 Joint Committee on Constitutional Review .… 220–221, 327, 519–520 Constitutional Commission, 1985–88 .… 521–522 Constitutional Convention, 1998 .… 522 Constitutional Conventions, 1973–85 .… 520–521 Constitutional rights bill of rights, and .… 510–512 states and territories .… 511 compulsory acquisition .… 489, 498 acquisition, meaning .… 500–501 choses in action .… 499 just terms .… 501–502 loss of profits .… 498–499 property, meaning .… 498–500

reductions in entitlement .… 501 statutory rights .… 499–500 wartime measures .… 502 Convention Debates, 1891 .… 489 discrimination against state residence .… 490, 508–509, 510 domicile, meaning .… 509 legal profession .… 509–510 freedom of interstate trade .… 312, 313, 316–317, 319, 321, 504–505 implied rights .… 490, 511 political communication .… 390–391, 490–496 voting .… 497–498 overview .… 489, 510–511 political communication .… 390–391, 490–492 extension of freedom .… 496 Lange test of invalidity .… 492, 493–494, 496 political donations .… 496 post-Lange decisions .… 493–496 recent cases .… 494–496 representative government .… 490, 492 religious freedom .… 250–251, 303, 489, 505 establishing a religion .… 506–508 financial assistance to non-government schools .… 507–508 religion, meaning .… 505–506 territories .… 508

wartime measures .… 250–251, 507 trial by jury .… 489, 502 literal approach .… 503 proceedings on indictment .… 502–503 requirements of trial .… 503–504 voting .… 490, 497 closure of electoral rolls .… 497–498 prisoners .… 497 traditional view .… 497 Convention Debates, 1891 anti-federalist movement .… 26 conciliation and arbitration power .… 287 Constitution Bill 1891 .… 24, 26, 33 amendment of Constitution .… 28 appointment of senators .… 27 customs and excise .… 27 deficiencies in bill .… 26–28 external affairs .… 266 legislative powers .… 25 separation of powers .… 24–25 constitutional rights .… 489 corporations power .… 227 cost of the Commonwealth .… 453 delegates .… 21, 22 draft constitution .… 22, 24, 489

freedom of interstate trade .… 305–306 institutions of government .… 23, 24–25 choosing senators .… 27, 62 deficiencies in bill .… 26–28 size of Parliament .… 27–28, 76 overview .… 21, 26, 28 referral of powers .… 409 republicanism .… 24 resolutions .… 22–23, 24, 25–26 Convention Debates, 1897–98 amendment of Constitution .… 37 conciliation and arbitration power .… 43–44, 239, 287 Constitution Bill .… 45, 48 Constitution Bill 1891 .… 33 corporations power .… 227–228, 234 customs and excise .… 33, 41, 193 deadlocks between Houses .… 39, 43 delegates .… 31–32, 51 election of delegates .… 31–32 external affairs .… 266 freedom of interstate trade .… 306–307 further debates .… 37–38 grants to the states .… 216 institutions of government .… 34–35

deadlocks .… 39, 43 money bills .… 35–36, 38–39 Senate representation .… 38 Senate’s role .… 83 size of Parliament .… 35 Inter-State Commission .… 36, 42 legislative powers .… 36–37 Melbourne session, 1898 .… 40 customs and excise .… 41 deadlocks .… 43 industrial disputes .… 43–44 Inter-State Commission .… 42 railways .… 41–42 rivers .… 40–41 social services .… 44 money bills .… 35–36, 38–39 overview .… 33 referral of powers .… 409 resolutions .… 33–35 rivers .… 36, 40–41 select committees .… 35 social services .… 44 Sydney session, 1897 .… 38, 39–40 money bills .… 38–39

Senate representation .… 38 trade and commerce .… 193 Cook, Captain James .… 3 Cook, Joseph .… 52, 85, 113, 116 Cooperative federalism .… 62, 333–337, 375–377 Corporations power characterisation .… 240, 241 connection between law and corporation .… 236 contracts between parties .… 236–237 industrial relations .… 237–242 Convention Debates, 1891 .… 227 Convention Debates, 1897–98 .… 36–37, 227–228, 234 conversion of companies .… 228–229 financial corporations .… 228, 230, 236 intended objects of company .… 232 non-financial activities .… 232 foreign corporations .… 228, 229 freedom of interstate trade .… 234 incorporation of corporations .… 234 industrial relations .… 69, 237, 370–371 Fair Work Act 2009 .… 288, 370, 371 Work Choices Act 2005 .… 238–242, 288, 328, 370, 373 intention of founders .… 228–229, 241 limitations of power .… 234–235 freedom of interstate trade .… 234

natural persons .… 233 non-trading objectives .… 235 Tasmanian Dam case .… 235–236 overview .… 68–69, 201, 202, 227, 371 plenary power, as .… 240 restrictive trade practices .… 229, 230 local government corporations .… 230–231 natural persons .… 233 sporting clubs .… 231 scope of power .… 69, 229 trade and commerce .… 57, 69, 229 Moorehead’s case .… 229–230 prohibition on preference .… 201 restrictive trade practices .… 229, 230, 231 trading corporations .… 228, 230, 232 courts’ approach .… 231 intended objects of company .… 232 local government corporations .… 230–231 natural persons .… 233 non-trading activities .… 232 non-trading objectives .… 235–236 sporting clubs .… 231 Work Choices Act 2005 .… 238–239, 328, 370 federal balance, and .… 239, 240–241, 242, 370, 373

intention of founders .… 241 Cosgrove, Sir Peter .… 121 Costello, Peter .… 93 Council for the Australian Federation cooperative federalism report .… 375–377 federal future report .… 372–373 benefits of federalism .… 374–375 corporations power .… 373 goods and services tax .… 373 specific purpose grants .… 374 overview .… 372 Council of Australian Governments .… 337, 340–341, 342–343, 344, 345, 346, 351, 361–362, 364, 367, 372 Craven, Greg .… 105 Crown contractual capacity .… 459–460, 461, 463 contractual obligations .… 463 fettering administrative discretion .… 463–465 juristic person, as .… 462–463 prerogative powers .… 148, 270, 418, 423–424, 426, 436, 455, 456, 461 Australian examples .… 420–421 entry to undertake activities .… 461–462 modification or removal .… 419–420, 426 scope of powers .… 419, 423 states .… 466

Crown immunity Acts of Parliament .… 420, 421–422 intention to be bound .… 422 states .… 422 test of immunity .… 422 suit against .… 420–421 Crown lands entry by executive .… 461–462 Indigenous people .… 174 nature of Crown title .… 178–179 Crown privilege .… 423–424 Curtin, John .… 366 Customs and excise colonial history .… 10, 27, 224–225 Braddon clause .… 41, 46 conflicts between colonies .… 10–11 Constitution Bill 1891 .… 27 Convention Debates, 1897–98 .… 33, 41, 193 protectionist policies .… 10, 11 uniform tariffs .… 11–12 Commonwealth powers .… 152, 224–225, 369–370 ‘criterion of liability’ approach .… 225–226 excise, meaning .… 225–226 state franchise fees .… 225–226, 328 territories power .… 302

Commonwealth revenue .… 53, 369–370 Braddon clause .… 41, 46, 60, 67, 216 South Sea Islander labourers .… 54 Convention Debates, 1897–98 .… 33, 41, 193 state acquisition schemes .… 212–213 territories power .… 302 uniform tariffs .… 11–12, 53

D Deadlocks between Houses alternative proposals .… 123–124 amendment of Constitution .… 122–123 Convention Debates, 1897–98 .… 39, 43 double dissolution .… 61, 62, 63, 115, 121–122, 432, 454 alternative proposals .… 123–124 Cook Government .… 113, 116, 450 Fraser Government .… 119–120 Hawke Government .… 120 Menzies Government .… 116 Turnbull Government .… 120–121 Whitlam Government, 1974 .… 116–118, 437 Whitlam Government, 1975 .… 118–119, 431–432, 454 joint sittings .… 117, 123 overview .… 115, 121–123 Scullin Government .… 113–114, 116

Senate voting system .… 114 proportional representation .… 114–115, 121, 122 state Parliaments .… 385–386 Deakin, Alfred .… 19, 32, 47, 49, 51–52, 55, 85, 267, 269, 409 Defence see also World War I; World War II colonial history .… 12, 17, 18, 243 federation of forces .… 14 New Guinea .… 12–13 review of establishments .… 13–14 Governor-General’s role .… 416 Minister for Defence .… 417 Defence power Communist Party Dissolution Act 1950 .… 256–257, 261 court’s approach .… 258–260 dissolution of party .… 256, 258 forfeiture of property .… 256, 258 members of party .… 257, 258 nature of communism .… 257–258, 259 reasons for enactment .… 257–258 military justice system .… 262–263 Australian Military Court .… 263 overview .… 133, 152, 153, 243 peacetime uses .… 244, 245 Communist Party Dissolution Act 1950 .… 256–260 early cases .… 245–246

primary aspects .… 247, 260 purposive nature .… 153, 244, 260 secondary aspects .… 247, 260 states, and .… 243, 466 terrorism .… 244, 261–262, 282 World War I .… 246–247, 259 fixing of bread prices .… 247 World War II .… 153–154, 244, 247–248, 259 artificial lighting standards .… 252 bread deliveries .… 249–250 employment controls .… 249, 254–255 marketing schemes .… 248–249 petrol rationing .… 255 public holiday payments .… 252–253 religious freedom .… 250–251 student enrolments .… 251–252 transition to peace .… 256 unwinding controls .… 253–256 women’s employment .… 254–255 Definitions employee .… 238 employer .… 238 personal information .… 482 state .… 215

tax .… 211 Delacretaz, John .… 80 Delegated legislation annual output .… 110 disallowance .… 111 effect .… 110 explanatory statements .… 111 overview .… 109, 110, 427, 458 registration .… 111 Senate standing committees .… 93, 94 Dicey, A V .… 146, 418 Dibbs, George .… 26 Dismissal of Lang Government background to dismissal .… 432–433 overview .… 433, 444 Dismissal of Whitlam Government academic accounts .… 434–435 actions as a lawyer .… 438, 451 advance notice of intention .… 438, 445–446 advice to Governor-General .… 434–435, 438, 448–449 election matters .… 448, 449 High Court Justices .… 449–451 alternative funding .… 435, 438, 442–443, 449 conciliation or mediation .… 438, 441 democratic principles .… 438, 451

double dissolution .… 118–119, 431–432, 454 effect on community .… 433 effect on Governor-General .… 434, 453 election results, 1972 .… 437 election results, 1974 .… 437 overview .… 118–119, 149, 431–432, 452–454 premature actions .… 438, 441–442 self-interest .… 446–448 principal criticisms .… 438–452 Queen’s position .… 418, 436 dismissal of Governor-General .… 447 reasons for termination .… 435–436 reserve powers .… 118, 119, 148–149, 424, 432, 438, 440, 443–444, 445–446 responsibility to both Houses .… 438, 451–452 Senate rejection of bills .… 118, 438, 439–440, 454 existence of convention .… 439, 440 termination letter .… 435–436 Dixon, Sir Owen .… 146, 311, 312, 313, 316 Double dissolution see Deadlocks between Houses Downer, John .… 21, 32, 35

E Education .… 363–366 Edwards, Major-General James .… 13–14, 18

Elections see also Voting first elections .… 49, 51, 52 formation of government .… 101 House of Representatives .… 77, 78, 101 methods of electing .… 82–83, 88 preferential system .… 83 overview .… 77 Senate .… 59, 62, 75, 77, 78, 431 methods of electing .… 82–83, 88, 114 preferential system .… 83, 98–99, 114 proportional representation .… 83, 86, 87–88, 90, 114–115, 121, 122, 431 Ellicott Committee report .… 469 Ellicott, Robert .… 434–435, 470, 473 Enderby, Keppel .… 443, 449, 469 Environmental protection trade and commerce power .… 194, 199 Excise see Customs and excise Executive see also Delegated legislation cabinet system .… 64, 102 commissions of inquiry .… 462 contractual capacity .… 459–460, 461, 463 contractual obligations .… 463 fettering administrative discretion .… 463–465 Convention Debates, 1891 .… 23

conventions .… 64, 65 Crown see Crown departments .… 49, 55, 109–110 exclusion of states .… 466 execution of Commonwealth laws .… 457–458 extent of powers .… 425, 457 Davis v Commonwealth .… 426–427 delegated legislation .… 427 National School Chaplaincy Program .… 428–430 spending programs .… 428–430 Tampa case .… 425–426 tax bonus payments .… 222–223, 427–428, 460–461 external affairs power .… 270, 272, 284 implementation of treaties .… 270–271, 279, 282 ratification of treaties .… 271, 282 Federal Executive Council .… 64, 102, 415, 416, 424, 455–456 Governor-General see Governor-General judicial review .… 65–66 judicial system, and .… 109 juristic person, as .… 462–463 maintenance of Constitution .… 458–459 ministers .… 64, 102, 415 first ministries .… 49, 51 Minister for Defence .… 417

overview .… 63, 415, 419, 425, 526 parliamentary secretaries .… 102 parliamentary scrutiny .… 108, 111 prerogative powers .… 419, 421, 423–424, 426, 455, 456, 461 Australian examples .… 420–421 entry to undertake activities .… 461–462 modification or removal .… 419–420, 426 scope of powers .… 419, 423 states .… 466 Prime Minister .… 64 first Prime Ministers .… 49, 51, 52 public service .… 55, 110, 467 Queen see Monarch sources of powers .… 455 laws of the Commonwealth .… 457–458 maintenance of Constitution .… 458–459 specific executive powers .… 455–457 statutory agencies .… 110 statutory authorities .… 110, 457, 458 United States .… 415 World War II measures .… 248, 259 artificial lighting standards .… 252 bread deliveries .… 249–250 employment controls .… 249, 254–255

marketing schemes .… 248–249 occupation of vacant houses .… 255–256 petrol rationing .… 255 public holiday payments .… 252–253 religious freedom .… 250–251 student enrolments .… 251–252 unwinding controls .… 253–256 women’s employment .… 254–255 Executive accountability Administrative Appeals Tribunal .… 468, 469, 470–472, 478, 485 Administrative Review Council .… 468, 470 freedom of information .… 483–486 Human Rights Commission .… 479–481 historical development .… 467–468 Fraser Government .… 470 Kerr Committee report .… 468–469 Whitlam Government .… 469 Information Commissioner .… 483, 485, 486 judicial review system .… 469, 470 Ombudsman .… 468, 469, 470, 473–479 states .… 477, 486 overview .… 467 Privacy Commissioner .… 481–483, 485 responsible government .… 466–467 states .… 477, 486

External affairs power colonial history .… 265–266, 267, 269 British foreign policy .… 265–266, 267 territorial sea .… 274, 358 treaties .… 266, 267 concurrent power .… 268 Convention Debates, 1891 .… 266 Convention Debates, 1897–98 .… 266 executive .… 270, 272, 284 implementation of treaties .… 270–271, 279, 282 ratification of treaties .… 271, 282 extent of power .… 277–278 extent of treaty-making power .… 272–273 assumption of obligations by states .… 273 capacity to bind the states .… 272 federal balance .… 275, 278 implementation of treaties .… 273, 274–275, 279–280 interim protection measures .… 276 reasonable proportionality .… 279 subject of international concern .… 275, 276, 278 Tasmanian Dam case .… 275–276, 279, 328 World Heritage areas .… 275–277 external affairs, meaning .… 278 historical background .… 265–267, 269, 274

diplomatic posts .… 267–268 international recognition .… 268 treaties .… 266, 267, 268 industrial relations .… 278, 279, 280, 281, 283–284, 288 international legal personality .… 269 originalist approach .… 160–161 overlap of powers .… 161 overview .… 68, 152, 283–285 plenary power, as .… 274, 276, 280–281, 283 purpose of laws .… 153 states .… 268, 271, 274–275, 466 assumption of treaty obligations .… 273 colonial history .… 269, 274 Commonwealth’s capacity to bind .… 272 discrimination .… 281 international legal personality .… 269 Tasmanian Dam case .… 275–276, 279, 328 territorial sea .… 274, 358 World Heritage areas .… 275–277 terrorism, and .… 281–282 treaties .… 270, 271, 343 capacity to bind the states .… 272 extent of power .… 272–280 federal clauses .… 271

historical background .… 266, 267, 268 implementation .… 270–271, 273, 274–275, 279–280, 282 interim protection measures .… 276 joint standing committee .… 95–96, 283, 343–344 public accountability .… 283 ratification .… 271, 282 role of Parliament .… 282–283 subject of international concern .… 275, 276, 278 Tasmanian Dam case .… 275–276, 279, 328 territorial sea .… 274 Evans, Gareth .… 283 Evans, Harry .… 95 Evatt, Dr Herbert .… 132, 137, 444

F Federal balance attitudes of electorate .… 370–371 cooperative federalism report .… 375–377 external affairs power .… 275, 278 federal future report .… 372–373 benefits of federalism .… 374–375 corporations power .… 373 goods and services tax .… 373 specific purpose grants .… 374 High Court, and .… 373

industrial relations .… 370–371 Work Choices Act 2005 .… 239, 240–241, 242, 370, 373 overview .… 327, 369–370 reform approaches .… 377–379 Federal Council of Australasia .… 17–18, 19, 411, 412 Federal Executive Council .… 64, 102, 415, 416, 424, 455–456 Federal Parliament Acts of Parliament see Legislative process bicameral system .… 63, 87 committees see Parliamentary Committees Convention Debates, 1891 .… 23, 24–25 choosing senators .… 27, 62 deficiencies in bill .… 26–28 size of Parliament .… 27–28, 76 Convention Debates, 1897–98 .… 34 deadlocks .… 39, 43 money bills .… 35–36, 38–39 Senate representation .… 38 size of Parliament .… 35 deadlocks between Houses see Deadlocks between Houses eligible electors .… 77 executive, and .… 108 scrutiny of activities .… 108, 111 external affairs power, and .… 282–283 formation of government .… 101

House of Representatives see House of Representatives judicial system, and .… 109 opposition .… 101–102 overview .… 127 party system .… 51–52, 85–86, 87, 127 privilege see Parliamentary privilege question time .… 106 regulation of procedures .… 103 role .… 101 seat of government .… 295, 296 Senate see Senate Federal system Canada .… 9, 21–22 colonial history .… 9–10, 21, 22 defence .… 14 Wentworth Constitutional Committee .… 9–10 United States .… 21, 22 Federalism see also Commonwealth and state relations benefits of federalism .… 374–375 concept of federalism .… 61 cooperative federalism .… 62, 333–337 report .… 375–377 factors affecting .… 127, 327 national economy .… 133, 134–135, 327

population .… 128–130, 327 World War I .… 128, 130–131, 134 World War II .… 128, 131–132, 134 international trends .… 372 national economy .… 133, 134–135, 327, 336 international trade .… 133–134 overview .… 127 population .… 128, 327 colonial population .… 128 distribution, 2015 .… 128–129 migrants .… 129–130 multicultural society .… 130 white Australia policy .… 129 World War I .… 128, 130–131, 134 World War II .… 128, 131–132, 134 Federation see also Constitution; National independence concept of federalism .… 61 departments .… 49, 55 early legislation .… 52–53, 57–58 conciliation and arbitration .… 56–57 customs and excise .… 53 immigration restriction .… 53–54 South Sea Islander labourers .… 54 public service .… 55

trade and commerce .… 57 voting .… 55 elections .… 49, 51, 52 enactment of Constitution .… 48 first decade .… 51, 60 amendments to Constitution .… 59 Braddon clause .… 60 early legislation .… 52–57 High Court .… 58–59 two-party system .… 51–52 Governor-General .… 48–49 High Court .… 58, 59 implied prohibition doctrine .… 58–59 ministries .… 49, 51 overview .… 61, 423 Prime Ministers .… 49, 51, 52 two-party system .… 51–52 voting .… 55 Western Australia .… 48 Financial Agreement, 1927 .… 333–334, 344, 432–433 Financial Transactions Reports Act 1988 .… 205 Fisher, Andrew .… 52, 85 Fitzpatrick, Raymond .… 107 Fitzroy, Sir Charles .… 9

Forrest, Sir John .… 38 Forsey, Senator Eugene .… 440, 444 Fraser, Malcolm .… 118, 119, 120, 331, 338, 339, 348, 431, 432, 436, 437, 438, 441, 442, 445, 448, 452, 453, 454, 470, 471, 478 Freedom of information amendments .… 484–485 impact of changes .… 485–486 applications .… 484 community access .… 484–485 exempt documents .… 483–484 fees .… 484, 485 Information Commissioner .… 485, 486 overview .… 483, 486 review of decisions .… 485 states .… 486 users of system .… 484 Freedom of interstate trade see also Trade and commerce power Bank Nationalisation case .… 312 binding on Commonwealth .… 307, 308, 309, 315 Cole v Whitfield .… 314–315, 321, 322 features from decision .… 314–318 colonial history .… 305 Convention Debates, 1891 .… 305–306 Convention Debates, 1897–8 .… 306–307 corporations power, and .… 234

direct legal effect .… 312–313 regulatory and not restrictive .… 312, 313 discriminatory burdens .… 200, 314–315, 318, 322 betting exchanges .… 320–321 refundable drink containers .… 319–320 essential features .… 315–318 freedom from government control .… 307 frequency of litigation .… 305, 307 individual rights approach .… 312, 313, 316–317, 319, 321, 504–505 overview .… 133, 200, 305, 321–322, 489 protectionist character .… 200, 315, 318–321, 322 railways .… 309–310 road maintenance charges .… 311 road transport .… 309–310, 311 discretionary licensing .… 310 state marketing schemes .… 308–309, 318–319, 321 tests for infringement .… 200, 315–318, 321 conflict of views .… 313–314 direct legal effect .… 312–313 discriminatory burdens .… 200, 314–315, 318–321, 322 protectionist character .… 200, 315, 318–321, 322 state borders .… 309 Free-traders .… 52, 53 Fringe benefits tax .… 224

Fusion party .… 52

G Galligan, Brian .… 377–379 Galloway, WJ .… 265, 266 Game, Sir Philip .… 433 Garran, Robert .… 25, 30, 31, 35, 36, 41, 84, 158, 193, 228, 234, 266, 412, 457, 506, 518 Gibbs, Sir Harry .… 393 Gillies, Duncan .… 19 Gleeson, Murray .… 472 Global financial crisis .… 222–223, 427–428, 461 Goods and services tax .… 205, 226, 331–332, 337, 362, 373 Gorton, John .… 468 Governor-General see also Crown appointment .… 415, 418 assigned powers .… 417, 455, 456 delegated legislation .… 427, 458 dismissal of Governor-General .… 447–448 dismissal of Whitlam Government .… 118–119, 149, 431–432, 433–434, 452–454 academic accounts .… 434–435 actions as a lawyer .… 438, 451 advance notice of intention .… 438, 445–446 advice to Governor-General .… 434–435, 438, 448–451

alternative funding .… 435, 438, 442–443, 449 conciliation or mediation .… 438, 441 democratic principles .… 438, 451 effect on Governor-General .… 434, 453 premature actions .… 438, 441–442, 446–448 principal criticisms .… 438–452 Queen’s position .… 418, 436, 447 reasons for termination .… 435–436 reserve powers .… 118, 119, 148–149, 424, 432, 438, 440, 443–444, 445–446 responsibility to both Houses .… 438, 451–452 Senate rejection of bills .… 118, 438, 439–440, 454 termination letter .… 435–436 execution of Commonwealth laws .… 457, 458 exercise of powers .… 415, 418, 455, 456 Federal Executive Council .… 415, 416, 424, 455–456 first Governor-General .… 48–49 prerogative powers .… 148, 270, 419, 421, 423–424, 436, 455, 456 Australian examples .… 420–421 modification or removal .… 419–420 scope of powers .… 419, 423 states .… 466 reserve powers .… 118, 119, 148–149, 424, 432, 438, 440, 443–444, 445–446 role .… 64, 102

commander in chief .… 416 conciliator or mediator .… 438, 441 specific powers .… 416, 455 statutory authorities .… 457 Grants Commission .… 330 Grants to the states conditions on grants .… 216–217, 325–326 Convention Debates, 1897–98 .… 216 education .… 363, 364, 365 formula for grants .… 330–331, 332 flour tax scheme, 1938 .… 217–218 Fraser era proposals .… 338 general revenue grants .… 331 goods and services tax .… 331–332, 337, 362, 373 health and hospitals .… 360–363 housing .… 366–367 Intergovernmental Agreement, 2009 .… 345–347, 351, 361, 366 operation of section .… 216 overview .… 203, 215, 220, 325 Premiers’ Conference, 1899 .… 46, 216 road construction .… 217, 325, 331 special purpose payments .… 331, 338 specific purpose payments .… 347, 361, 362, 367, 374 state revenues .… 330, 332–333 tied grants .… 331, 347, 374

uniform income tax scheme .… 218–219, 330 First Uniform Tax case .… 219 Second Uniform Tax case .… 219–220 Great War see World War I Grey, Earl .… 9, 12, 27 Griffith, Sir Samuel .… 17, 19, 24, 25, 58, 162, 227, 306, 450, 453

H Hamer, David .… 104 Hasluck, Sir Paul .… 175, 176, 450, 520 Hawke, Bob .… 120, 177, 183, 283, 339, 340, 342, 417, 479, 521 Hayden, Bill .… 120, 339, 449 Health and hospitals .… 360–363 Higgins, Henry .… 32, 43, 163, 287 High Court Commonwealth and state relations .… 373 delegated legislation .… 109 establishment .… 58, 65 interpretation of Constitution see Interpretation judicial review .… 65–66, 151 jurisdiction .… 66, 151 overview .… 58, 65, 109 previous decisions .… 158, 159 common law .… 159 Higher Education Contribution Scheme .… 363

Hill, Heather .… 81, 147 Hilmer Committee .… 341–342 History see also Colonial history; Federation; National independence Hopetoun, Lord .… 48–49 House of Representatives see also Senate composition .… 75 Convention Debates, 1891 .… 25, 26 number of members .… 27–28, 76 Convention Debates, 1897–98 .… 34 deadlocks .… 39, 43 money bills .… 35–36 size of Parliament .… 35 deadlocks see Deadlocks between Houses disqualification of members .… 78, 81 allegiance or citizen of foreign power .… 80–81, 147 holding office of profit .… 80 election of members .… 77, 101 eligible voters .… 78 methods of electing .… 82–83, 88 preferential system .… 83 number of members .… 27–28, 76 two to one ratio .… 76 overview .… 75, 105, 127 Parliamentary Committees .… 89, 96

joint committees .… 95–96 select committees .… 90, 97 standing committees .… 96–97 privilege see Parliamentary privilege proceedings .… 103 regulation of procedures .… 103 role .… 63 territories .… 82 Housing national agreements .… 366–367 Howard, John .… 88, 95, 98, 102, 123, 184, 186, 283, 288, 331–332, 370, 469, 522 Hughes, William Morris .… 85, 87, 131 Human Rights Commission commissioners .… 479–480 complaints .… 480–481 establishment .… 479 inquiries .… 480 overview .… 479 resolution of complaints .… 480

I Immigration see also Population colonial history .… 14, 16 assisted migration .… 14

Chinese immigrants .… 15–16 gold discoveries .… 14–15 migrants .… 129 country of birth .… 129–130 multicultural society .… 130 restriction legislation .… 53–54 white Australia policy .… 129 Immigration Restriction Act 1901 .… 53–54 Immunity of instrumentalities doctrine .… 58, 59, 162 Implied prohibition doctrine .… 58–59, 163 Inconsistency between laws conferral of entitlement .… 396 altering, impairing or detracting .… 397–399, 407 ‘cover the field’ test .… 396, 399–400 defining relevant field .… 403–404 divorce and related laws .… 395, 399–400 implied intention .… 406 intention not to cover .… 404–406 intention to cover .… 400–402, 406 limits of field .… 403 marriage power .… 403–404 retrospective legislation .… 402 direct conflicts .… 395, 396 impossibility of obedience .… 396–397 displacement of state laws .… 395

divorce and related laws .… 395, 400 effect of invalidity .… 395 intention of Parliament .… 407 ‘cover the field’ .… 400–402, 406 implied intention .… 406 not to ‘cover the field’ .… 404–406 overview .… 152, 170–171, 327, 390, 391, 393, 395–396 purposes of section .… 393–394 territory laws .… 296, 407–408 validity of Commonwealth law .… 394 Independence see National independence Indigenous people amendment of Constitution .… 176, 188, 189, 190, 523 anti-discrimination legislation .… 177, 181 apology for past abuses .… 185 assimilation policy .… 175–176 Aboriginal and Torres Strait Islander Commission .… 183, 187 regional councils .… 183, 184 replacement of Commission .… 184 colonial history .… 173, 174, 177 nature of Crown title .… 178–179 ‘radical title’ .… 179 terra nullius .… 177–178

Commonwealth powers .… 174, 187 amendment of Constitution .… 176, 188, 189, 190, 523 beneficial laws .… 188–189 Hindmarsh Island Bridge case .… 188, 189 intention of founders .… 187–188 constitutional recognition .… 190 crown lands .… 174 housing .… 366–367 Indigenous Council .… 184 Mabo v Queensland (No 2) .… 178, 183, 185 essential features of case .… 179–180 native title .… 179–180, 181 nature of Crown title .… 178–179 terra nullius .… 178 maltreatment .… 173–174 native title .… 179–180, 182–183 extinction .… 179, 180–181 freehold land .… 181 inconsistency between laws .… 397 nature of rights .… 180 pastoral leases .… 180, 181–182 Western Australia .… 180–181 Wik Peoples v Queensland .… 181–182 Native Title Act 1993 .… 180, 181

Northern Territory intervention .… 177, 184, 185, 186–187, 301–302 overview .… 173, 190 reconciliation .… 176, 177, 183, 184 apology for past abuses .… 185 draft declaration .… 183 removal of children .… 175 segregation .… 174–176 self-determination .… 177, 183, 185, 187 ATSIC .… 183–184 sovereignty .… 185–186 state powers .… 174, 187 states and territories .… 174, 187 constitutional recognition .… 190 native title .… 180–182 Northern Territory intervention .… 177, 184, 185, 186–187, 301–302 pastoral leases .… 180, 181–182 removal of children .… 175 wards of the government .… 176 ‘Stolen Generations’ .… 175, 189 terra nullius .… 177–178 voting .… 55, 174, 176 Individual rights see Constitutional rights Industrial relations conciliation and arbitration power .… 56, 152, 287, 288, 293, 370 ambit claims .… 293

Boilermakers’ case .… 290 Commonwealth Court of Conciliation and Arbitration .… 287–288, 289, 290–291 Convention Debates, 1891 .… 287 Convention Debates, 1897–98 .… 43–44, 239, 287 essential features .… 289–293 federal awards .… 292 federal unions .… 291 industrial dispute, meaning .… 291–292 interpretation .… 163–164, 291 public holiday payments .… 252–253 railways .… 56, 58, 162 Work Choices Act 2005, and .… 238, 239, 241–242, 288, 328, 370 corporations power .… 69, 237, 370–371 Fair Work Act 2009 .… 288, 370, 371 Work Choices Act 2005 .… 238–242, 288, 328, 370, 373 external affairs power .… 278, 279, 280, 281, 283–284, 288 federal balance .… 370–371 Work Choices Act 2005 .… 239, 240–241, 242, 370, 373 national economy, and .… 134 overview .… 288, 293 states .… 238, 287, 288, 293, 370–371 referral of powers .… 288–289, 371 Information Commissioner .… 483, 485, 486

Insurance power .… 161, 234–235 Intergovernmental Agreement on Federal Financial Relations, 2009 .… 345–347, 351, 361, 366 International treaties see External affairs power Interpretation broad construction of powers .… 156–157 Canadian Constitution .… 154 characterisation .… 154, 155, 165 sufficiency of connection .… 156 ulterior objects outside power .… 155–156 Commonwealth and state powers .… 162, 166, 167 Commonwealth industrial awards .… 165 discrimination .… 164, 165, 166, 170 Engineers’ case .… 163–164 immunity of instrumentalities .… 58, 59, 162, 163 implied prohibition doctrine .… 58–59, 163 Payroll Tax case .… 164 State Banking case .… 164 state superannuation schemes .… 166 Tasmanian Dam case .… 165 federal balance .… 239, 240–241, 242 immunity of instrumentalities .… 58, 59, 162, 163 implied incidental power .… 157–158 implied prohibition doctrine .… 58–59, 163 intention of framers .… 160

limitation of powers .… 161–162 nature of challenges .… 151 nature of powers .… 152–154 concurrent powers .… 152, 154 exclusive powers .… 152–153 purpose of laws .… 153 subject matter .… 153 originalist approach .… 160–161 overlap of powers .… 161 overview .… 66, 141–142, 151, 171 pith and substance test .… 154 previous decisions .… 158, 159 contemporary factors .… 160 intention of framers .… 160 originalist approach .… 160–161 proportionality .… 155 real connection test .… 154, 155 sufficiency of connection .… 156 ulterior objects outside power .… 155–156 role of court .… 159 state power to bind the Commonwealth .… 167–168, 170 general application laws .… 169–170 impairment of executive capacities .… 169 inconsistent state laws .… 170–171

rule of law .… 169, 171 Inter-State Commission .… 36, 42, 347, 348, 356 Interstate trade see Freedom of interstate trade; Trade and commerce power Irish Free State .… 138, 139 Isaacs, Sir Isaac .… 32, 39, 43, 163, 164, 306, 317–318, 423

J Judicial power administrative tribunals .… 65 Australian Military Court .… 263 Commonwealth Court of Conciliation and Arbitration .… 290–291 cross-vesting scheme .… 349 executive, and .… 109 overview .… 65, 109, 262, 303 state courts .… 349, 386 independence and impartiality .… 389–390 judicial process .… 387–389 Kable .… 386–387 territories power, and .… 303–304 Judicial review High Court .… 65–66, 151 Judicial review system background to introduction .… 469 overview .… 470 Judiciary

Convention Debates, 1891 .… 23 federal judges .… 262, 263, 303 Federal Parliament, and .… 109 national independence .… 141 overview .… 65, 109, 303 Privy Council appeals .… 141 territories power, and .… 303–304 Jurisdiction Administrative Appeals Tribunal .… 471 Commonwealth Court of Conciliation and Arbitration .… 290 cross-vesting scheme .… 349 High Court .… 66, 151 state courts .… 349, 386 independence and impartiality .… 389–390 judicial process .… 387–389 Kable .… 386–387

K Kardamitsis, Bill .… 80 Keating, Paul .… 177, 283, 339, 340, 342 Kerr Committee report .… 468–469 Kerr, Sir John .… 118, 119, 149, 338, 424, 431, 432, 433, 434, 435, 436, 438–452, 453, 468, 521 Kingston, Charles .… 21, 22, 24, 32, 33, 47 Kisch, Egon .… 54

L Labor Party .… 26, 27, 32, 49, 51, 52, 53, 56, 84, 85, 86, 87, 88, 114, 433, 523 Lang, Jack .… 113, 432–433, 444 Legal profession discrimination against state residence .… 509–510 national regulation .… 348–349 Legislative Councils colonial history .… 5–7 New South Wales .… 6–7, 384 overview .… 385 Queensland .… 385 Legislative powers see Commonwealth powers; State powers Legislative process amendments to bills .… 103–104, 105 appropriation bills .… 118, 223 introduction of bills .… 103 passage of bills .… 104–105 proclamations .… 416 Senate .… 105, 223 rejection of bills .… 26–27, 61, 113, 118 tax bills .… 223 laws imposing taxation .… 223, 224 one subject of taxation .… 223, 224 role of Senate .… 223

Liberal Party .… 52, 85, 86, 434 Lindell, Geoffrey .… 407, 446 Lyne, William .… 48–49 Lyons, Joseph .… 86, 518

M MacDonald, Sir John .… 266 Mason, Sir Anthony .… 314, 438, 444, 445, 450, 478 McIlwraith, Sir Thomas .… 12 McLean, Allan .… 52, 56 McMahon, William .… 337, 469 McMillan, William .… 19 Medicare .… 360 Menzies, Robert .… 86, 88, 95, 102, 116, 140, 220, 248, 256, 261, 337, 468, 517, 519 Military justice system .… 262–263 Ministerial Councils Attorneys-General .… 348–350 civil litigation .… 349 cross-vesting scheme .… 349 legal profession regulation .… 348–349 Australian Transport Council .… 347–348 education .… 363 effectiveness .… 345 intergovernmental agreement, 2009 .… 345–347

meetings .… 345 Murray–Darling Basin .… 350 overview .… 344–345 Ministers appointment of ministers .… 64, 102, 415 first ministries .… 49, 51 Minister for Defence .… 417 overview .… 64 parliamentary secretaries .… 102 Monarch see also Crown; Governor-General allegiance .… 142–143 appointment of Governor-General .… 415, 418 dismissal of Whitlam Government .… 418, 436, 447 exercise of executive powers .… 456–457 letters patent .… 417 overview .… 417, 422 reserve powers .… 148–149 role .… 148–149, 418 royal style and titles .… 142, 417–418 Munro, James .… 227 Murphy, Lionel .… 439 Murray–Darling Basin .… 350, 352, 359–360 Murray–Darling Basin Authority .… 350, 352–355 Murray–Darling Basin Ministerial Council .… 350

N National Affordable Housing Agreement .… 366–367 National Australasian Conventions see Convention Debates, 1891; Convention Debates, 1897–98 National Competition Council .… 342 National Competition Policy .… 341–342 National economy .… 133–135, 327, 339, 340, 351–352 National Education Agreement .… 364–365 National Health and Hospitals Network Agreement .… 361–362 National Health Reform Agreement, 2011 .… 362 National Healthcare Agreement .… 361 National independence Australia Act 1986 .… 143, 147 background to introduction .… 143 Imperial Act .… 145 legal basis of Constitution .… 145–146 long title .… 143–144 main provisions .… 144–145 parliamentary sovereignty .… 146, 147 transfer of sovereignty .… 146 Balfour report .… 138 citizenship .… 142–143 Colonial Laws Validity Act 1865 .… 138–139, 143 judicial system .… 141–142 Privy Council appeals .… 141

monarch .… 148 allegiance .… 142–143 prerogative powers .… 148 reserve powers .… 148–149 role .… 148–149 royal style and titles .… 142 overview .… 137, 147 passports .… 142 royal style and titles .… 142 Statute of Westminster 1931 .… 139, 147 adoption of Act .… 140 position of the states…. 140, 143 time of independence .… 147 World War I .… 137, 138 World War II .… 140–141 declaration of war .… 140 National Legal Profession Reform Taskforce .… 349 National Party .… 86, 114, 434 National Rail Corporation .… 356 National Reform Agenda .… 342–343 National School Chaplaincy Program .… 428–430 Nationalists .… 85, 86 Native title see Indigenous people Nauru .… 299 New Guinea

annexation .… 12–13, 16, 17, 299 German colony .… 13, 299 overview .… 299 post-World War I .… 137 New Zealand Australian Transport and Infrastructure Council .… 348 Convention Debates, 1891 .… 21 Ministerial Council of Attorneys-General .… 348 Statute of Westminster 1931 .… 139 Niemeyer, Sir Otto .… 113 Norfolk Island .… 298–299 Norris, Roland .… 28

O O’Connor, Richard .… 32, 35, 58, 162 Odgers, James R .… 90, 440 Oil and gas resources .… 335, 356–359 Ombudsman background to establishment .… 468, 469 complaint statistics .… 477 establishment .… 470, 473 investigations .… 473–474, 476 discretion .… 476, 477 origins of institution .… 473 outsourcing government functions, and .… 473

overview .… 473, 478–479 Prime Minister, and .… 474 procedures .… 476 recommendations .… 474 referral of complaints .… 477–478 reports .… 474 roles .… 473–474, 475, 478 specialist roles .… 475 states .… 477, 486

P Pacific Island Labourers Act 1901 .… 54 Parkes, Sir Henry .… 13, 15, 17, 18–19, 20, 22–25, 33, 34, 87, 193, 305–306 Parliamentary Committees effectiveness .… 92, 97 government majorities, and .… 98 political considerations .… 98 preferential voting .… 98–99 House of Representatives .… 89, 96 joint committees .… 95–96 select committees .… 90, 97 standing committees .… 96–97 inquisitorial role .… 89 joint committees .… 95 constitutional review, 1956–59 .… 327, 519–520

joint standing committees .… 95–96 treaties committee .… 95–96, 283, 343–344 overview .… 89 parliamentary privilege .… 91 select committees .… 90, 94, 97 Senate standing committees .… 89–90, 96 delegated legislation .… 93, 94 developments .… 92, 93 effectiveness .… 92, 97–99 housekeeping affairs .… 93 introduction of system .… 90 legislative committees .… 92–94 powers .… 91 referral of legislation .… 92 structure .… 90–91, 92–93 Standing Committee of Attorneys-General .… 348–350 civil litigation .… 349 cross-vesting scheme .… 349 legal profession regulation .… 348–349 treaties committee .… 95–96, 283, 343–344 Parliamentary privilege Constitution .… 89, 106 contempt of Parliament .… 106, 107 overview .… 106 Parliamentary Committees .… 91

penalties for breach .… 106 scope of protection .… 107 Parliamentary secretaries .… 102 Parliamentary sovereignty .… 146, 147 Passports .… 142 People’s Federal Convention, 1896 .… 31 Petroleum exploration .… 335, 357, 359 Phillip, Governor Arthur .… 3 Playford, Thomas .… 19 Political communication extension of freedom .… 496 Lange test of invalidity .… 492, 493–494, 496 overview .… 390–391, 490–492 political donations .… 496 post-Lange decisions .… 493–496 recent cases .… 494–496 representative government .… 490, 492 Ponsonby, Sir Henry .… 13 Population see also Immigration Australian Capital Territory .… 296 Christmas Island .… 298 Cocos (Keeling) Islands .… 297 colonial population .… 5, 6, 12, 15, 28, 29, 47, 128 Indigenous people .… 173

distribution, 2015 .… 128–129 migrants .… 129 country of birth .… 129–130 multicultural society .… 130 Norfolk Island .… 298 Northern Territory .… 297 overview .… 128, 327 white Australia policy .… 129 World War I .… 128, 130 World War II .… 128, 131 Preferential system .… 83, 98–99, 114 Premiers’ Conference, 1895 .… 30, 31 Premiers’ Conference, 1899 .… 45–46, 216 Premiers’ Conferences .… 327, 333, 337, 339–340 Prime Minister first Prime Ministers .… 49, 51, 52 Ombudsman, and .… 474 overview .… 64 Privacy Commissioner complaints .… 481, 482 establishment .… 481 overview .… 481, 483, 485 personal information, definition .… 482 powers of Commissioner .… 482 technological developments, and .… 482–483

Privy Council abolition of appeals .… 141, 159 British foreign policy .… 265–266 Proportional representation .… 83, 86, 87–88, 90, 114–115, 121, 122, 431 Protectionists .… 51, 52, 53 Public service .… 55, 110, 467, 468

Q Queen see Monarch Quick, Sir John .… 25, 30, 31, 32, 35, 36, 41, 84, 158, 193, 228, 234, 266, 409, 412, 457, 506

R Race power amendment of Constitution .… 176, 188, 189, 190 beneficial laws .… 188–189 Hindmarsh Island Bridge case .… 188, 189 intention of founders .… 187–188 overview .… 174, 187 Railways Australian National Railways Commission .… 356 capital investment .… 309 colonial history .… 355 conciliation and arbitration power .… 56, 58, 162 Convention Debates, 1897–98 .… 41–42 freedom of interstate trade .… 309–310

National Rail Corporation .… 356 overview .… 309, 355–356 Railways Standardisation Agreement .… 334–335 Referendum see Amendment of Constitution Referral of powers amendment proposal .… 370 Convention Debates, 1891 .… 409 Convention Debates, 1897–98 .… 409 corporations law .… 336–337, 411 effect on state powers .… 410 industrial relations .… 288–289, 371 ‘matters’ .… 410 overview .… 371, 409, 410 revocation of referral .… 410 termination of referral .… 410–411 Reid, Alan .… 445 Reid, Sir George .… 26, 30, 32, 43, 45, 49, 52, 56, 60, 266, 305, 306, 307 Religious freedom establishing a religion .… 506–508 financial assistance to non-government schools .… 507–508 overview .… 250–251, 303, 489, 505 religion, meaning .… 505–506 territories .… 508 wartime measures .… 250–251, 507 Representative government

colonial history .… 6–7, 8 freedom of political communication .… 490, 492 overview .… 62 Responsible government colonial history .… 7, 8, 9 freedom of political communication .… 490 overview .… 62, 466–467 Richardson, Jack .… v–ix, xi–xii, xv, 95, 123, 134, 473, 519 Royal Commission on the Constitution, 1929 .… 228, 516 Royal style and titles .… 142, 417–418 Royalty charges .… 213 Rudd, Kevin .… 88, 185, 222, 284, 288, 353, 361, 370, 379

S Saunders, Cheryl .… 147 Sawer, Geoffrey .… 434–435, 451, 452 Scholes, Gordon .… 436 Scullin, James .… 113, 114, 116, 122 Senate see also House of Representatives amendments to Constitution .… 59, 520, 524 appropriation bills .… 223 rejection .… 118, 438, 439–440, 454 composition .… 75 Convention Debates, 1891 .… 24, 26–27, 62 Convention Debates, 1897–98 .… 36, 38, 83

deadlocks see Deadlocks between Houses disqualification of senators .… 78 allegiance or citizen of foreign power .… 81, 147 interests in public service agreements .… 79–80 election of senators .… 59, 62, 75, 77, 431 eligible voters .… 78 methods of electing .… 82–83, 88, 114 preferential system .… 83, 98–99, 114 proportional representation .… 83, 86, 87–88, 90, 114–115, 121, 122, 431 government majorities .… 88, 98 government minorities .… 86, 88, 98, 121, 431 House of review, as .… 86, 87, 88, 105 party system .… 87 proportional representation .… 87–88, 90 legislative process .… 103, 104, 105 appropriation bills .… 118, 223 debate .… 104–105 rejection of bills .… 26–27, 61, 113, 118 tax bills .… 223 number of senators .… 76 two to one ratio .… 76 overview .… 105, 127 Parliamentary Committees .… 89 effectiveness .… 92, 97–99

joint committees .… 95–96 select committees .… 90, 94 standing committees .… 89–94, 96, 97 privilege see Parliamentary privilege regulation of procedures .… 103 rejection of bills .… 26–27, 61, 113 appropriation bills .… 118, 438, 439–440, 454 role .… 63, 83, 105, 451 states’ House, as .… 83–86, 88 party system .… 85–86 territories .… 82 Senate select committees examples .… 94 overview .… 90, 94 powers and privileges .… 94 Senate standing committees developments .… 92, 93 effectiveness .… 92, 97 government majorities, and .… 98 political considerations .… 98 preferential voting .… 98–99 housekeeping affairs .… 93 introduction of system .… 90 legislative committees .… 92–93 delegated legislation .… 93, 94

scrutiny of bills .… 94 overview .… 89–90, 96 powers .… 91 referral of legislation .… 92 structure .… 90–91, 92–93 Separation of powers .… 24–25, 415 Service, James .… 17, 19–20 Snedden, Billy .… 437 Snowy Mountains scheme .… 331, 334, 359–360 Social services amendment of Constitution .… 360, 523 Convention Debates, 1897–98 .… 44 South Africa .… 138, 139, 140 Standing committees see Parliamentary Committees; Senate standing committees Stanley, Lord .… 13 State courts colonial history .… 4 cross-vesting scheme .… 349 federal judicial power .… 349, 386 independence and impartiality .… 389–390 judicial process .… 387–389 Kable .… 386–387 State Parliaments bicameral Parliaments .… 385

deadlocks between Houses .… 385–386 legislative councils .… 385 colonial history .… 5–7 New South Wales .… 6–7, 384 Queensland .… 385 State powers see also Commonwealth and state powers Commonwealth property .… 214, 215 concept of federalism .… 61 distribution of powers .… 66–67 extraterritorial power .… 382–383 peace, order and good government .… 382, 383 relationship with other states .… 383–384 imposition of income tax .… 219–220 inconsistent laws see Inconsistency between laws Indigenous people .… 174, 187 industrial relations .… 288–289, 370–371 referral of powers .… 288–289, 371 intrastate trade .… 57, 159–160, 309 Kable principle.… 386–387 independence and impartiality .… 389–390 judicial process .… 387–389 limitations under Constitution .… 390–391 manner and form restrictions .… 384–385 overview .… 391

referral of powers see Referral of powers state constitutions .… 381–382, 391 amendment .… 384 manner and form restrictions .… 384–385 parliamentary supremacy .… 382 peace, order and good government .… 382 State property taxation power .… 214 state, definition .… 215 State railways see Railways State residence discrimination against .… 490, 508–509, 510 domicile, meaning .… 509 legal profession .… 509–510 States and territories see also Colonial history; Commonwealth and state relations; Territories power bill of rights .… 511 compulsory acquisition schemes .… 212–213 Council for the Australian Federation .… 372 Crown prerogatives, and .… 466 defence power, and .… 243, 466 discrimination between states .… 207, 210, 355 discrimination, meaning .… 207 legal practitioners .… 207–208 residents of states .… 207, 208

taxation power .… 205, 206, 207, 208–209, 210, 219, 220 uniform income tax scheme .… 219, 220 education budgets .… 363 executive accountability .… 477, 486 external affairs .… 268, 271, 274–275, 466 assumption of treaty obligations .… 273 colonial history .… 269, 274 Commonwealth’s capacity to bind .… 272 discrimination .… 281 international legal personality .… 269 Tasmanian Dam case .… 275–276, 279, 328 territorial sea .… 274, 357–358 World Heritage areas .… 275–277 franchise fees .… 225–226, 328, 373 grants by the Commonwealth see Grants to the states Indigenous people .… 174 constitutional recognition .… 190 native title .… 180–182 Northern Territory intervention .… 177, 184, 185, 186–187, 301–302 pastoral leases .… 180, 181–182 removal of children .… 175 segregation .… 174–175 wards of the government .… 176 industrial relations .… 238, 287, 288, 293, 370–371

referral of powers .… 288–289, 371 international contracts .… 269 interstate trade see Freedom of interstate trade; Trade and commerce power Ombudsman .… 477, 486 prohibition on preference .… 201, 205, 206, 207, 209, 210 intention of founders .… 210 ‘parts of states’ .… 210–211 trade and commerce power .… 201, 235 revenues .… 330, 332–333 surrender of territories .… 295, 296 territorial sea .… 274, 335–336, 357–358 Statute of Westminster 1931 adoption of Act .… 140 overview .… 139 position of the states…. 140, 143 time of independence .… 147 Statutory agencies .… 110 Statutory authorities .… 110, 457, 458 Stephen, Sir Ninian .… 120 Stevens, Bertram .… 433, 517 Superannuation fund income .… 155, 204–205, 221 Superannuation guarantee charge .… 213 Symon, Josiah .… 43

T Tax bonus payments .… 222–223, 427–428, 460–461 Taxation power see also Customs and excise arbitrary exactions .… 215 characterisation .… 155, 203–205, 211, 221 policy of law, and .… 221 collection of tax .… 213 child support .… 213–214 royalty charges .… 213 superannuation guarantee charge .… 213 compulsory exaction .… 212, 213 state acquisition schemes .… 212–213 discrimination between states .… 205, 206, 207, 210 discrimination, meaning .… 207 intention of founders .… 210 minerals resource rent tax .… 209 mirror taxes .… 208–209 uniform income tax scheme .… 219, 220 Financial Transactions Reports Act 1988 .… 205 fines and penalties .… 215 fringe benefits tax .… 224 goods and services tax .… 205, 226 grants power, and .… 215, 220 conditions on grants .… 216–217

flour tax scheme, 1938 .… 217–218 operation of section .… 216 road construction .… 217 uniform income tax scheme .… 218–220, 330 legislative process .… 223 laws imposing taxation .… 223, 224 one subject of taxation .… 223, 224 role of Senate .… 223 overview .… 133, 152, 203 policy objectives, and .… 220 courts’ approach .… 221 responsibility for economy .… 220–221 tax bonus payments .… 222 preference between states .… 205, 206, 207, 209, 210 intention of founders .… 210 ‘parts of states’ .… 210–211 schemes to combat inflation .… 155, 204 state property .… 214 superannuation fund income .… 155, 204–205, 221 tax, definition .… 211 immigration clearance fees .… 211–212 taxation, meaning .… 211 uniform income tax scheme .… 218–219, 326, 327, 330 First Uniform Tax case .… 219

Second Uniform Tax case .… 219–220 withdrawal from scheme .… 220, 326 uniform operation of tax .… 205–207 use of power .… 204 Taxation revenue .… 203 Tenterfield oration .… 18–19 Territorial sea .… 274, 335–336, 357–358 Territories power application of Constitution .… 300–301 Australian Capital Territory .… 296 customs and excise .… 302 exclusive power .… 295–296 external territories .… 297 Ashmore and Cartier Islands .… 298 Australian Antarctic Territory .… 297 Christmas Island .… 298 Cocos (Keeling) Islands .… 297–298 Norfolk Island .… 298–299 former territories .… 299 Nauru .… 299 Papua New Guinea .… 299 inconsistency between laws .… 296 intrastate transport .… 194–195 judiciary, and .… 303–304 limitations on power .… 301, 302

Northern Territory .… 296–297 intervention legislation .… 301–302 judicial power .… 303–304 mining leases .… 301 other constitutional powers, and .… 302 customs and excise .… 302 freedom of religion .… 303 overview .… 295 plenary power, as .… 300, 301 religious freedom .… 508 seat of government .… 295, 296 surrender by states .… 295, 296 Terrorism defence power .… 244, 261–262, 282 external affairs power .… 281–282 overview .… 261–262 Trade and commerce see also Railways Australian Industries Preservation Act 1906 .… 57, 229 colonial history .… 10, 305 free trade .… 10, 11, 12 protectionist policies .… 10, 11 corporations power .… 57, 69, 229 Moorehead’s case .… 229–230 prohibition on preference .… 201

restrictive trade practices .… 229, 230, 231, 232 freedom of interstate trade see Freedom of interstate trade international trade .… 133–134 Inter-State Commission .… 36, 42, 347, 348, 356 intrastate trade .… 57, 69, 229, 230 restrictive trade practices .… 229, 230, 231 natural persons .… 233 Trade and commerce power air navigation .… 197, 198 intrastate .… 194–195, 197, 198–199, 513–514 characterisation .… 155–156, 199 Convention Debates, 1897–98 .… 193 declining significance .… 201–202 environmental protection .… 194, 199 implied or incidental power .… 195–196 territories power, and .… 194–195 intrastate and interstate, distinction .… 159–160, 194, 197, 198, 202 intrastate trade and commerce .… 195 ‘commingling’ doctrine .… 195, 196, 199, 202 pre-commencement activities .… 196 United States .… 195, 196, 199, 202 navigation and shipping .… 193 overlap of powers .… 161 overview .… 152, 193, 194, 202, 307 prohibition on preference .… 201, 235

scope of power .… 151, 202 subject matter .… 194, 199 Treaties see External affairs power Treaties Committee .… 95–96, 283, 343–344 Treaties Council .… 283, 343–344 Trenwith, William .… 32 Trial by jury constitutional right .… 489, 502 literal approach .… 503 proceedings on indictment .… 502–503 requirements of trial .… 503–504 Turnbull, Malcolm .… 102, 120–121, 377, 486 Turner, George .… 228 Twomey, Anne .… 372, 373, 375

U United Australia Party .… 86, 114 United Nations General Assembly .… 137 Dr Herbert Evatt .… 132, 137 self-determination .… 185, 186 United States anti-trust law .… 57 constitution .… 22, 416 bill of rights .… 489

executive .… 416 federal system .… 21 immunity of instrumentalities doctrine .… 58, 162 inter-state commerce commission .… 36 intrastate trade and commerce .… 195 ‘commingling’ doctrine .… 195, 196, 199, 202

V Van Diemen’s Land .… 4, 5, 6, 7 Voting see also Elections closure of electoral rolls .… 497–498 Commonwealth Franchise Act 1902 .… 55 disqualifications .… 77 implied right .… 490, 497–498 Indigenous people .… 55, 174, 176 overview .… 497 prisoners .… 497 universal suffrage .… 77

W Warren, Neal .… 332 Water resources .… 350, 352–355 Watson, John .… 52, 56 Webster, James .… 79, 80 Wentworth Constitutional Committee .… 9–10

Whitlam, Gough .… 116–119, 149, 177, 317, 331, 338, 347, 356, 357, 360, 363, 418, 424, 431, 432, 433–454, 469, 473, 520, 521 Whitlam Government dismissal see Dismissal of Whitlam Government Wise, Bernhard .… 43 Withers, Glenn .… 372, 373, 375 World War I casualties .… 130, 131 defence power .… 246–247, 259 fixing of bread prices .… 247 international recognition .… 131, 268 international trade .… 134 overview .… 130, 137, 246 peace conference .… 137 population .… 128, 130 Treaty of Versailles .… 131, 268 World War II casualties .… 131 declaration of war .… 140, 248 defence power .… 153–154, 244, 247–248, 259 artificial lighting standards .… 252 bread deliveries .… 249–250 employment controls .… 249, 254–255 marketing schemes .… 248–249 occupation of vacant houses .… 255–256 petrol rationing .… 255

public holiday payments .… 252–253 religious freedom .… 250–251 student enrolments .… 251–252 unwinding controls .… 253–256 women’s employment .… 254–255 effect on Australia .… 132–133 international status .… 132 international trade .… 134 overview .… 131, 140–141, 247–248 population .… 128, 131 post-war reconstruction .… 518, 519 transition to peace .… 132, 256 unwinding controls .… 253–254 occupation of vacant houses .… 255–256 petrol rationing .… 255 women’s employment .… 254–255