The High Court and Australian federalism

Publius: The Journal of Federalism

Volumn 35, Issue 3, 2005, Pages 467-488

  Selway, Bradley ^a   Williams, John M ^b  

^a Federal Court of Australia   (Australia)

^b AUSTRALIAN NATIONAL UNIVERSITY   (Australia)

Author keywords

[No Author keywords available]

Indexed keywords

EID: 26644448209     PISSN: 00485950     EISSN: None     Source Type: Journal    
DOI: 10.1093/publius/pji018     Document Type: Review

References (186)

1. Alex G. Castles, An Australian Legal History (Sydney: Law Book Company, 1982), pp. 20-31;
2. Frederick Madden with David Fieldhouse, eds. Imperial Reconstruction, 1763-1840: The Evolution of Alternative Systems of Colonial Government-Documents in Imperial History, Number 3 (Westport, CT: Greenwood Press, 1987);
3. Frederick Madden with David Fieldhouse, eds. Settler Self-Government, 1840-1900: The Development of Representative and Responsible Government-Documents in Imperial History, Number 4 (Westport, CT: Greenwood Press, 1990).
4. Alexander C. V. Melbourne, Early Constitutional Development in Australia (Melbourne: Melbourne University Press, 1963).
5. See, in relation to New South Wales, Anne Twomey, The Constitution of New South Wales (Sydney: Federation Press, 2004), pp. 1-17;
6. in relation to South Australia, see Bradley Selway, The Constitution of South Australia (Sydney: Federation Press, 1997), pp. 1-9.
7. See, for example, the Australian Constitutions Act 1850 (U.K.), ss. 7, 14.
8. See Colonial Laws Validity Act 1865 (U.K.), s. 2 and see Hodge v. The Queen (1883) 9 AC 117, 132.
9. See generally John Quick and Robert Garran, The Annotated Constitution of the Australian Commonwealth (Sydney: Angus and Robertson, 1901), pp. 79-252;
10. John La Nauze, The Making of the Australian Constitution (Melbourne: Melbourne University Press, 1972).
11. For example, resolution 2 of the Colonial Conference held in London in July 1897 between the U.K. prime minister and the prime ministers and premiers of the self-governing colonies was passed unanimously and affirmed that it "is desirable, whenever and wherever practicable to group together under a federal union those colonies which are geographically united." Madden with Fieldhouse, eds. Settler Self-Government, pp. 34-36.
12. There is also occasional reference in the convention debates to the Canadian British North America Act 1867 (U.K.), but the conventions made a deliberate decision not to follow that model in preference to the U.S. model. The decision to turn away from the Canadian and toward the American template was the result of a belief that Canada was the more centralized of the two federations. See Debates of the Australasian Federation Conference 1890 (Sydney: Legal Books, 1990), p. 33.
13. This reflected his view not only of the requirements of federalism but also of the rule of law. In 1903, he wrote, "The supremacy of the judiciary, whether it exists under a federal or unitary constitution, finds its ultimate logical foundation in the conception of the supremacy of law as distinguished from the possession and exercise of governmental power." Andrew Inglis Clark, "The Supremacy of the Judiciary under the Constitution of the United States, and under the Constitution of the Commonwealth of Australia," Harvard Law Review 17 (1903): 18.
14. James Bryce, The American Commonwealth (London: Macmillan, 1888).
15. See also, John S. F. Wright, "Anglicizing the United States Constitution: James Bryce's Contribution to Australian Federalism," Publius: The Journal of Federalism 31 (Fall 2001): 107-129.
16. Albert V. Dicey, Introduction to the Study of the Law of the Constitution (London: Macmillan, 1886).
17. See Commonwealth Constitution, s. 74.
18. La Nauze, Making of the Australian Constitution, p. 273.
19. Melbourne Corporation v. The Commonwealth (1947) 74 CLR 31, 82.
20. See generally Cheryl Saunders, "Constitutional Structure and Australian Federalism," Centenary Essays of the High Court of Australia, ed. Peter Cane (Sydney: LexisNexis Butterworths, 2004), p. 174.
21. Section 1.
22. Sections 7 and 24.
23. Section 64.
24. Chapter III.
25. Covering clause 6.
26. Sections 106, 108.
27. Kable v. Director of Public Prosecutions (NSW) (1996) 189 CLR 51.
28. Section 7.
29. Section 29.
30. Section 128.
31. Sections 123, 124.
32. Section 73. The Federal Court of Australia was established in 1976.
33. See Sue v. Hill (1999) 199 CLR 462, 501-502.
34. Section 51.
35. Section 90.
36. Section 52.
37. These activities were carried on by statutory authorities that were used much more extensively in Australia than elsewhere. See Re Residential Tenancies Tribunal (NSW); Ex parte Defence Housing Authority (1997)
38. 190 CLR 410, 470-471;
39. Paul Finn, "The State Corporation," Flinders Journal of Law Reform 3 (1999): 1;
40. Roger Wettenhall, "Corporations and Corporatisation: An Administrative History Perspective," Public Law Review 6 (1995): 12-17.
41. The correspondence between the interest payments of the colonies and the amounts raised by each of them for customs duties was remarked upon by Chief Justice Samuel Griffith (when on the Queensland Supreme Court) in a paper he gave to the Queensland Government and contained in Votes and Proceedings of the Legislative Assembly of NSW, 1897, Vol. 2 (Sydney: NSW Government Printer, 1897).
42. (1988) 165 CLR 360, 392.
43. S. Mills, Taxation in Australia (London: Macmillan, 1925), pp. 200-201.
44. (1997) 189 CLR 465, 493.
45. nd ed., ed. Rae Else-Mitchell (Sydney: Law Book Company of Australasia, 1961), p. 246.
46. The clauses were finally settled at the Premiers Conference in 1899 after the necessary majority had not been achieved in the NSW referendum for the adoption of the draft constitution. See John Bannon, "Introduction to the Minutes of the Conference of Premiers in the Commonwealth Bill," The New Federalist 4 (1999): 104;
47. Cheryl Saunders, "The Hardest Nut to Crack: The Financial Settlement in the Commonwealth Constitution," The Convention Debates 1891-1898: Commentaries, Indices and Guide, ed. Greg Craven (Sydney: Legal Books, 1986), p. 149;
48. Quick and Garran, Annotated Constitution, p. 219.
49. Dicey, Law of the Constitution, p. 162;
50. William Gummow, Change and Continuity-Statute, Equity and Federalism (Oxford: Oxford University Press, 1999), pp. 71-72.
51. Greg Graven, "Cracks in the Facade of Literalism: Is there an Engineer in the House?" Melbourne University Law Review 18 (1992): 540-564.
52. Cf. Brian Galligan, Politics of the High Court (St. Lucia, Queensland: University of Queensland Press, 1987), pp. 30-41.
53. See further Jeffrey Goldsworthy, "Realisms about the High Court," Federal Law Review 18 (1988): 27-39;
54. Brian Galligan, "Realist 'Realism' and the High Court's Political Role," Federal Law Review 18 (1988): 40-49;
55. Jeffrey Goldsworthy, "Reply to Galligan," Federal Law Review 18 (1988): 50-52.
56. Cf. Galligan, Politics of the High Court, pp. 42-70 and 255-261, where the various political theories of judicial review are discussed in relation to the Australian context.
57. [1878] 3 App Cas 889.
58. At 904-905.
59. See, for example, Amalgamated Society of Engineers v. Adelaide Steamship Co Ltd (1920) 28 CLR 129, 149-150;
60. Geoffrey Lindell, "Duty to Exercise Judicial Review," Commentaries on the Australian Constitution, ed. Leslie Zines (Sydney: Butterworths, 1977), pp. 160-186;
61. nd ed. (Sydney: Law Book Company, 1979), pp. 1143-1144;
62. Geoffrey Lindell, "The Justifiability of Political Questions: Recent Developments," Australian Constitutional Perspectives, ed. Hoong Phun Lee and George Winterton (Sydney: Law Book Company, 1992), pp. 218-219.
63. I Cranch 137; 5 US 137 (1801).
64. The delegates actually had little knowledge of the case. See Official Record of the Debates of the Australasian Federal Convention. Third Session. Melbourne 1898 (Melbourne: Government Printer, 1898), pp. 320-321;
65. John M. Williams, "The Emergence of the Commonwealth Constitution," Australian Constitutional Landmarks, eds. Hoong Phun Lee and George Winterton, (Melbourne: Cambridge University Press, 2003), pp. 23-24.
66. See Zelman Cowan, Federal Jurisdiction in Australia, (Melbourne: Melbourne University Press, 1959), pp. 22-23.
67. The early references by the High Court to Marbury v. Madison were limited to this issue: see Ah Yick v. Lehmert (1905) 2 CLR 593, 601, 608-609;
68. The Tramways Case (No 1) (1913) 18 CLR 54, 61, 72-73, 76, 82.
69. See also Collins v. Charles Marshall Pty Ltd (1955) 92 CLR 529, 544-545.
70. (1951) 83 CLR 1, 262;
71. Sir Owen Dixon, Jesting Pilate and Other Papers and Address (Melbourne: Law Company Ltd, 1965), p. 174;
72. Geoffrey Sawer, Australian Federalism in the Courts, (Melbourne: Melbourne University Press, 1967), p. 76.
73. See generally Michael Coper, "Marbury v Madison," The Oxford Companion to the High Court of Australia, ed. Tony Blackshield, Michael Coper, and George Williams (Melbourne: Oxford University Press, 2001), pp. 453-455.
74. See, for example, Commonwealth v. Mewett (1997) 191 CLR 471 at 497, 546-547;
75. AG (WA) v. Marquet (2003) 202 ALR 233, 248.
76. See David Tucker, "Textualism: An Australian Evaluation of the Debate between Professor Ronald Dworkin and Justice Antonin Scalia," Sydney Law Review 21 (1999): 567;
77. Erin Daly, "Idealists, Pragmatists and Textualists: Judging Electoral Districts in America, Canada and Australia," Boston College International and Comparative Law Review 21 (1998): 348-349;
78. Geoffrey Sawer, "Constitutional Issues in Australian Federalism," Publius: The Journal of Federalism 1 (Summer 1977): 28-30.
79. See Bradley Selway, "Methodologies of Constitutional Interpretation in the High Court of Australia," Public Law Review 14 (2003): 234.
80. Of all members of the current High Court, Justice Michael Kirby has taken the most proactive approach to constitutional interpretation. Nevertheless, Kirby is still a "textualist." See, for example, Kartinyeri v. Commonwealth (1998) 195 CLR 337, 399-400.
81. "Address upon Taking the Oath of Office as Chief Justice" (1952) 85 CLR xi, xiv.
82. See Leslie Zines, "Sir Owen Dixon's Theory of Federalism," Federal Law Review 1 (1965): 221.
83. Sir Gerard Brennan, "A Tribute to Sir Anthony Mason," Courts of Final Jurisdiction, ed. Cheryl Saunders (Sydney: Federation Press, 1996), pp. 12-13.
84. Contrast Gummow, Change and Continuity, pp. 74-75.
85. Obviously copied from Article III Section 2(1) of the U.S. Constitution.
86. Act No. 11 of 1914.
87. See generally Cowan, Federal Jurisdiction in Australia, pp. 57-65.
88. See Bradley Selway, "The Constitutional Role of the Queen of Australia," Common Law World Review 32 (2003): 251-252.
89. Statute of Westminster Adoption Act, 1942 (Cth). See also the discussion by Anne Twomey, "Sue v Hill - The Evolution of Australian Independence," The High Court at the Cross Roads: Essays in Constitutional Law, eds. Adrienne Stone and George Williams (Leichardt: Federation Press, 2000), pp. 80-87;
90. George Winterton, "The Acquisition of Independence," Reflections on the Australian Constitution, eds. Robert-French, Geoffrey Lindell, and Cheryl Saunders (Sydney: Federation Press, 2003), pp. 31-50;
91. Geoffrey Lindell, "Further Reflections on the Date of the Acquisition of Australia's Independence," Reflections on the Australian Constitution, eds. French, Lindell, and Saunders, pp. 51-59.
92. See Sue v. Hill (1999) 199 CLR 462, 490;
93. AG (WA) v. Marquet (2003) 202 ALR 233, 248-249;
94. Shaw v. Minister for Immigration and Multicultural Affairs (2003) 203 ALR 143, 149-150, 155, 168-170, 183-185.
95. See Selway, "Methodologies of Constitutional Interpretation," 235-236.
96. See Gummow, Change and Continuity, pp. 78-79.
97. See, for example, Singh v. The Commonwealth (2004) 209 ALR 355, 360-361, 368, 428, contrast 447;
98. Shaw v. Minister for Immigration and Multicultural Affairs (2003) 203 ALR 143, 146-147, 149-150, 183-184.
99. Michael McHugh, "The Constitutional Jurisprudence of the High Court, 1989-2004" (the Sir Anthony Mason Lecture in Constitutional Law delivered in Sydney on 26 November 2004); http:// www.hcourt.gov.au/ publications_05.html.
100. See, for example, Brian Galligan and John Wright, "Australian Federalism: A Prospective Assessment," Publius: The Journal of Federalism 32 (Spring 2002): 147-166;
101. David Jackson, "Internationalisation of Rights and the Constitution," Reflections on the Australian Constitution, eds. French, Lindell, and Saunders, pp. 105-115;
102. George Williams, "Globalisation of the Constitution-The Impact of International Norms," Reflections on the Australian Constitution, eds. French, Lindell, and Saunders, pp. 105-115 and 192-211;
103. Cheryl Saunders, "Dividing Power in a Federation in an Age of Globalisation," Beyond the Republic, eds. Charles Sampford and Tom Round (Sydney: Federation Press, 2001), pp. 129-145.
104. See Selway, "Methodologies of Constitutional Interpretation," 239-244.
105. th ed. (Sydney: Butterworths, 1997), pp. 1-10.
106. D'Emden v. Redder (1904) 1 CLR 91;
107. Deakin v. Webb (1904) 1 CLR 585;
108. Federated Amalgamated Government Railway and Tramway Service Association v. New South Wales Railway Traffic Employees Association (1906) 4 CLR 488.
109. 4 Wheat 316 (1819).
110. 11 Wall 113 (1871).
111. Zines, High Court and Constitution, p. 5.
112. (1904) 1 CLR497, 507.
113. Ibid.
114. As reflected in the Tenth Amendment.
115. Plainly enough this suggested approach to constitutional interpretation could not be applied to the British North America Act, where there were exclusive lists of powers. In relation to that Constitution, even the Privy Council accepted that the grant of a power to one polity had to be understood in the context of the federal division of powers. See Citizen Insurance Co of Canada v. Parsons [1881] 7 AC 96, 108-109.
116. Amalgamated Society of Engineers v. The Adelaide Steamship Co Ltd (1920) 28 CLR 129.
117. Ibid., 145.
118. Amalgamated Society of Engineers V. the Adelaide Steamship Co Ltd, Ibid., 147.
119. Amalgamated Society of Engineers V. the Adelaide Steamship Co Ltd, Ibid., 148.
120. Amalgamated Society of Engineers V. the Adelaide Steamship Co Ltd, Ibid., 152.
121. Amalgamated Society of Engineers V. the Adelaide Steamship Co Ltd, Ibid., 148-149 and 153-154.
122. Amalgamated Society of Engineers V. the Adelaide Steamship Co Ltd, Ibid., 151-152.
123. Amalgamated Society of Engineers V. the Adelaide Steamship Co Ltd, Ibid., 146.
124. rd ed. (New York, NY: Foundation Press, 2000), pp. 807ff.
125. AG (WA) v Australian National Airlines Commission (1976) 138 CLR 492, 499, 502, 508-510;
126. R v. Burgess Ex parte Henry (1936) 55 CLR 608, 628-629;
127. Australian National Airways Pty Ltd v. Cth (1945) 71 CLR 29, 61;
128. Swift v. Boyd Parkinson (1962) 108 CLR 189, 203;
129. Redfern v. Dunlop Rubber Australia Ltd (1964) 110 CLR 194, 221;
130. Airlines NSW v. NSW (No. 2) (1965) 113 CLR 54.
131. See Zines, High Court and the Constitution, pp. 75-79.
132. Zines, High Court and Constitution, p. 141;
133. George Winterton, "The High Court and Federalism: A Centenary Evaluation," Centenary Essays for the High Court of Australia ed. Peter Cane (Chatswood, NSW: LexisNexis Butterworths, 2004), pp. 201-204;
134. David Solomon, The Political Impact of the High Court (North Sydney: Allen and Unwin, 1992), pp. 133-145.
135. The Commonwealth v. Tasmania (1983) 158 CLR 1, 128, 168, 215, 254-255;
136. Galligan, Politics of the High Court, pp. 240-248.
137. See Koowarta v. Bjelke-Petersen (1982) 153 CLR 168.
138. See Commonwealth v. Tasmania (The Tasmanian Dam Case) (1983) 158 CLR 1.
139. See Re Dingjan; Ex parte Wagner (1995) 183 CLR 323.
140. Victoria v. Commonwealth (1971) 122 CLR 353, 396.
141. Melbourne Corporation v. Commonwealth (1947) 74 CLR 31, 81-82.
142. Queensland Electricity Commission v. Commonwealth (1985) 159 CLR 192.
143. Re Australian Education Union,- Ex parte Victoria (1995) 184 CLR 188.
144. Austin v. Commonwealth (2003) 215 CLR 185.
145. Re Wakim; Ex parte McNally (1999) 198 CLR 511.
146. See R v. Hughes (2000) 202 CLR 535;
147. cf. The Queen v. Duncan Ex parte Australian Iron & Steel Proprietary Limited (1985) 158 CLR 535.
148. See, for example, Susan Gluck Mezey, "The U.S. Supreme Court's Federalism Jurisprudence: Alden v. Maine and the Enhancement of State Sovereignty," Publius: The Journal of Federalism 30 (Winter-Spring 2000): 21-38;
149. John Kincaid, "The State of U.S. Federalism, 2000-2001: Continuity in Crisis," Publius: The Journal of Federalism 31 (Summer 2001): 60-69.
150. See, for example, Adrienne Stone, "Choice of Law Rules, the Constitution and the Common Law," Public Law Review 12 (2001): 9.
151. However, an argument that the analysis by the majority in Prinz v. United States 521 US 898 (1997)
152. should be followed by the High Court was left open in Austin v. Commonwealth (2003) 215 CLR 185, 268-269; see also at 297-299.
153. John Williams, "'With Eyes Open': Andrew Inglis Clark and Our Republican Tradition," Federal Law Review 23 (1995): 149;
154. George Winterton, Monarchy to Republic: Australian Republican Government (Oxford: Oxford University Press, 1994);
155. Sawer, "Constitutional Issues in Australian Federalism," 21-22.
156. Sawer, Australian Federalism in the Courts, p. 6.
157. For a discussion of the machinery of Section 128 and its history, see James Crawford, "Amendment of the Constitution," Australian Federation: Towards the Second Century ed. Greg Craven (Melbourne: Melbourne University Press, 1992), pp. 177-192.
158. As to the effect of the limited success in formal change on the approaches and consequences of High Court decisions, see Michael Coper, "The People and the Judges: Constitutional Referendums and Judicial Interpretation," Future Directions in Australian Constitutional Law, ed. Geoff Lindell (Sydney: Federation Press, 1994), pp. 73-89.
159. Saunders, "The Hardest Nut to Crack," p. 149.
160. Deakin had been prominent in politics in Victoria before federation. He was an important figure during the convention debates. Further, he was the first federal attorney general and was appointed as the second prime minister in 1903. He served two further terms as prime minister in 1905 and in 1909.
161. Alfred Deakin, Federated Australia (Melbourne: Melbourne University Press, 1968), pp. 95-98;
162. D. James, Federal-State Financial Relations: The Deakin Prophesy (Parliament of Australia, Parliamentary Library, Research Paper 17 1999-2000);
163. Solomon, Political Impact of the High Court, pp. 77-91.
164. NSW v. Commonwealth (1908) 7 CLR 179.
165. Given the quaint nuances of government accounting, it may also have been wrong, but that is another issue.
166. Federal Aid Roads Act (1926).
167. Victoria v. Commonwealth (1926) 38 CLR 399.
168. He later served as prime minister in 1903-1904 and 1905-1908.
169. Geoffrey Sawer, Australian Federal Politics and Law: 1929-1949 (Melbourne: Melbourne University Press, 1974), p. 144.
170. States Grants (Income Tax Reimbursement) Act (1942); Income Tax (War-time Arrangements) Act (1942); Income Tax Assessment Act (1942) and Income Tax Act (1942).
171. South Australia v. Commonwealth (1942) 63 CLR 373.
172. Sawer, Australian Federal Politics, p. 152.
173. Galligan, Politics of the High Court, p. 132.
174. Victoria v. Commonwealth (1957) 99 CLR 575.
175. Peterswald v. Bartley (1904) 1 CLR 497, 509.
176. Parton v. Milk Board (Vic) (1949) 80 CLR 229
177. and Matthews v. Chicory Marketing Board (Vic) (1938) 60 CLR 263.
178. 120 Ha v. NSW (1997) 189 CLR 465.
179. nd ed (Kingston: Queen's University Press, 1999), p. 48;
180. Wilfred Prest, "Tax Arrangements and Intergovernmental Transfers," Publius: The Journal of Federalism 7 (Summer 1977): 53-68.
181. Leslie Zines, "Changing Attitudes to Federalism and its Purpose," Reflections on the Australian Constitution, ed. French, Lindell, and Saunders, pp 95-101;
182. Bradley Selway, "Horizontal and Vertical Assumptions within the Commonwealth Constitution," Public Law Review 12 (2001): 113-114 and 121-122;
183. George Winterton, "The High Court and Federalism: A Centenary Evaluation," Centenary Essays of the High Court of Australia, ed. Peter Cane (Sydney: LexisNexis Butterworths, 2004), p. 220.
184. It would appear that this phrase has the same meaning as the phrase "concurrent federalism" used by Brian Galligan, A Federal Republic (Melbourne: Cambridge University Press, 1995), pp. 191-203.
185. Of course, this does not mean that the Court has been reactive to transitory party political changes. See Galligan, Politics of the High Court, 184-188 and 249-252;
186. Solomon, Political Impact of the High Court, 5-6 and 189-193. Although the general political and historical context may be reflected in the approaches of the High Court, current political issues have not had a significant impact upon High Court jurisprudence, except to the practical extent that they have given rise to the disputes that come before the Court.