High Court Interpretation
Effect on the Federal Balance of
Power
What is the High Court?
The High Court is established under s 71-80
of the Constitution
It was established as a Constitutional Court
– to be the final arbiter in matters of the
Constitution
Federal Balance of Power
In any federation there is a division of
power between two levels of government.
The ratio of powers between these levels
is termed the Federal Balance
The Federal Balance is not static – it
changes with changes in the Constitution
Alterations of the Federal Balance
Any mechanism for changing the Constitution may
impact the Federal Balance. Therefore…
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Referenda
Referral of powers
Unchallenged legislation
Conventions and Commissions
High Court Interpretation
may all affect the Federal Balance
Alterations to the Federal Balance
As we know, most methods of constitutional
change in Australia are very limited in their
impact on the Constitution – except one.
The interpretations of the Constitution by the
High Court of Australia
Therefore, the High Court has had more impact on
the Federal Balance than any other mechanism
How Does the High Court Interpret
the Constitution?
Judicial interpretation is an art and a science
When asked to clarify the meaning of a
statute (or a Constitution) judges apply
various styles of judicial interpretation
The style used depends the judges’
discretion
Judicial Interpretation in Phase 1
Intentionalism: A style of interpretation in which
the judges seek the original intention of the
Constitution.
In Australia’s case the Constitution was intended to
set up a cooperative federation in which the
states retained most of their powers – even
thought the way the Constitution is written
doesn’t seem to reflect this
Intentionalism
In order to achieve the intention of the
Constitution the judges were forced to find
“implications” in the Constitution that are not
expressly mentioned
In this they used US Supreme Court persuasive
precedent in Collector v Day (US) in D’Emden v
Pedder 1903 to create implied immunities (the
states immune from Commonwealth power)
In Peterwald’s Case 1904 the Court found implied
prohibitions (against the Commonwealth
expanding its power in areas of state power)
Intentionalism
These cases created the
doctrine of implied immunity of instrumentalities
(instrumentalities are government functions such as railways, power, roads etc)
And the
doctrine of reserve powers
The most famous case from the Intentionalist
Phase is Railway Servants 1906.
Intentionalism - Doctrines Explained
doctrine of implied immunity of instrumentalities
Because it is federalist, the Constitution contains
implications that state powers should be preserved.
Thus - the states are immune from commonwealth
interference and the commonwealth is prohibited from
interfering with states.
doctrine of reserve powers
When interpreting concurrent powers, do so in a narrow
sense that preserves the power of the states and limits
the power of the commonwealth to legislate in areas of
shared powers.
Railway Servants 1906 –
implied immunities of instrumentalities
A dispute between the WA Government and the
Commonwealth about the right of the
Commonwealth to legislate working conditions
for workers employed by the WA government
The Court, applying the doctrine of implied
immunities of instrumentalities, found that
Commonwealth industrial laws passed under s
51 (xxxv) could not apply to State Government
railway employees (a state instrumentality)
Peterswald’s Case –
doctrine of reserve powers
Section 90 makes excise an exclusive
commonwealth tax.
Griffiths CJ held that a NSW tax imposed on
brewers was not an excise by defining “excise”
very narrowly – reserving the taxing power for
the states
This made it less likely that a state tax could be
defined as an excise and therefore invalid.
Judicial Interpretation in Phase 2
Literalism/ legalism: A style of interpretation in
which the court regards the actual wording to be
most important. A “black letter of the law” style
Read this way, the Constitution grants a great deal
of power to the Commonwealth at the expense
of the states. In particular s 51 concurrent
powers and s 109, which gives priority to
Commonwealth law. The financial powers of the
Commonwealth are great
Literalism / Legalism
By 1920 none of the Justices of the Court
were involved in the drafting of the
Constitution. They felt that they could not
know its intention and so sought a SAFER
method.
They began to treat the Constitution as if it
were an ordinary statute
Engineers Case 1920
This case opened the second phase of High
Court constitutional interpretation and
remains the most significant landmark
case in the Court’s history
The Amalgamated Society of Engineers (a
union) was involved in a dispute with a
sawmilling factory owned by the WA
Gov’t.
Engineers Case 1920
The Commonwealth sought to legislate for the union
because it felt it had the power to legislate for state
based businesses when a dispute crossed state borders
(the Society of Engineers was a national union)
The High Court agreed – giving a much broader
interpretation to Commonwealth industrial powers
This decision reversed the precedents of the Railway
Servants Case – the doctrine of implied immunities of
instrumentalities
Other implications of legalism
A legalistic interpretation of s 51 concurrent powers leads
to broad interpretations of shared powers. The
commonwealth “covers the field” of concurrent powers.
The doctrine of reserved powers was overturned.
A literalist interpretation of the grants power under s 96 –
allowing the Commonwealth to attach any condition to
monies granted to the states
A serious diminishing of the concept of residual powers –
which, being unspecified, cannot be interpreted literally
Uniform Tax Case 1942
During WW2 the Commonwealth passed four acts, under
s 51(ii) (the tax power), which had the effect of taking
control of income tax for the duration of the war
They did not outlaw state income tax but the
Commonwealth decided that if a state collected income
tax its s 96 Commonwealth grant money would be
reduced by that amount. Further, the citizens of the
state would be paying both state and federal income tax
and would likely vote the state government out. This
made it impossible for the states to collect the tax
Uniform Tax Case 1942
The States challenged the four acts in the
High Court. The Court found that three of
the acts could continue in peacetime – ie
forevermore
This case marks the point at which the VFI
began to tip very much towards the
Commonwealth
Judicial Interpretation in Phase 3
The Court continued the legalist / literalist
method of interpretation during this
phase.
This phase is not marked by a change of
judicial style but by the effect of the
Court’s decisions on the federal balance.
This effect was neutral
Phase 3 – In Favour of the States
State Banking Case 1947 – Stuck down
Commonwealth legislation that forced the states
to bank with the Commonwealth Bank on the
grounds that it discriminated against the states
Bank Nationalisation Case 1948 – Struck down the
ALP Government’s attempt to nationalise all
banks on the grounds that it prevented freedom
of interstate trade (this was highly controversial
as nationalisation was ALP policy)
Communist Party Case 1951 – Struck down the
Menzies’ Government attempt to ban the
Communist Party (also highly controversial)
Phase 3 – In Favour of the
Commonwealth
Concrete Pipes Case 1971 – Accepted the
right of the Commonwealth to legislate on
the inter-state activities of corporations
under the Corporations Power in s 51(xx)
and led to the Trade Practices Act 1974 –
a powerful piece of legislation
Uniform Tax Case 1957 – upheld the 1942
decision
Judicial Interpretation in Phase 4
Activism / Realism: A style of interpretation in which the
Court tries to consider the law in the presence of a wider
social context
Activism is intended to make the High Court's decisions
more transparent and honest by rejecting purely
legalistic interpretations and considering the views of the
community at large
It is controversial because some see it as the Court acting
in a legislative way instead of a purely judicial way and
therefore a breach of the separation of powers. Judges
are unelected and not directly accountable to the people
The External Affairs Power
In recent times, as Australia has signed more treaties and
agreements with overseas governments and
organisations the External Affairs Power in s 51 (xxix)
has become more important
This power allows the Commonwealth to sign a treaty,
ratify it by passing it through the Commonwealth
Parliament and thus making it law in Australia. S 109
then allows this law to override state law
Thus s 51 (xxix) and s 109 together allow the
Commonwealth to become involved in areas of state
responsibility
External Affairs Cases
Koowarta 1982 – overruled a QLD Gov’t decision to
prevent aborigines from purchasing a lease on
land because it contravened the Racial
Discrimination Act 1975
This Act was passed to give effect to an
international agreement to eliminate all forms of
racial discrimination (UN Convention on Human
Rights)
External Affairs Cases
Tasmanian Dams 1983 – used the Koowarta precedent to
prevent the Tasmanian Gov’t from damming the Gordonbelow-Franklin River.
The Commonwealth signed the International Convention
for the Protection of the World’s Cultural & Natural
Heritage
Then passed the World Heritage Properties Conservation
Act 1983.
It then listed the Gordon-below-Franklin River as a World
Heritage Area under the Act – making it unlawful for
Tasmania to dam the river
Other Phase 4 Landmarks
Mabo 1992 – Eddie Mabo, a Torres Strait
Islander, challenged the QLD
Government’s rights over his home island
claiming that a form of “native title”
existed at the time of European settlement
and had never been extinguished. The
Court agreed, overturning a centuries old
legal doctrine - terra nullius. Native Title
may exist all across unsettled parts of
Australia
Phase 4 Landmarks cont’d
Mabo cont’d:
Land management is a residual power but the
Constitution gives the Commonwealth exclusive
power over Aboriginal Affairs – thus Native Title
reduces state powers over land – this is the
most controversial case in recent times, creating
doubts about private land ownership in Australia.
This was clarified by the Native Title Act 1993
Hammond Case 1997 – Franchise fees classed as
excise
Phase 4 Landmarks cont’d
Cole v Whitfield 1988 – State laws which
discriminate against interstate trade in a
protectionist manner are unconstitutional.
A Tasmanian company was not allowed to import
smaller SA crayfish because the Tasmanian Gov’t
had restricted the size of crayfish that could be
sold to protect Tasmanian crayfish stocks (this is
not protectionist in the economic sense). This
reduced the protection of free trade between the
states
Phase 4 Landmarks cont’d
There are many other landmark cases from
Phase 4 that extend individual citizens
rights but these do not affect the federal
balance.. Examples…
Dietrich 1992 – legal representation
Australian Capital Television Case 1992 –
freedom of speech
Theophanous 1994 – freedom of speech
How to Answer the Essay
The essay asks you to ASSESS the impact of the High Court
on the Federal Balance
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What is the Federal Balance? This needs to be
addressed. Some outline of federalism, division of
powers and the changing balance of these powers is
necessary
You MUST conclude that the Court’s impact has been
very significant – given the extension of Commonwealth
power since 1920
Styles of judicial interpretation are fundamental to
understanding the way the Court has altered the Federal
Balance. There needs to be some discussion of the
styles
How to Answer the Essay
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The case details are examples that you use to
argue that the Court’s role has been significant
A brief discussion of the High Court’s role in
Constitutional change – given the ineffectiveness
of the other mechanisms, might be useful
Accurate quotation of case details, relevant
sections of the Constitution where appropriate,
and knowledge of key issues such the method of
allocating powers, the VFI, Commonwealth
grants powers, external affairs powers etc etc is
needed