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Crommelin, M --- "The Federal Principle" [2018] UMelbLRS 10

Last Updated: 1 June 2020

THE FEDERAL PRINCIPLE

Michael Crommelin
Melbourne Law School, The University of Melbourne


INTRODUCTION

The Commonwealth of Australia Constitution Act 1900 (UK) provided for the people of the six Australian colonies to be united in ‘a Federal Commonwealth under the name of the Commonwealth of Australia’,^[1] a self-governing polity within the British Empire.^[2] The existing colonies, already self-governing polities within the Empire,^[3] became the ‘Original States’ in the federation.^[4]

The federal principle is thus a foundational element of the Constitution, along with representative democracy, responsible government, separation of judicial power, and the rule of law. The Constitution does not, however, specify the content of the federal principle. This chapter seeks to determine that content from the historical context of the Constitution, the text and structure of the Constitution, and the jurisprudence of the High Court of Australia.

This search reveals three core ingredients of the federal principle: multiple polities, limited authority of polities, and reciprocal responsibility among polities. These ingredients are tightly intertwined.

MULTIPLE POLITIES

Historical context

In their contemporaneous account of the Australian federation movement and revealing commentary on the Constitution derived from it, John Quick and Robert Garran point out that the word ‘federal’ occurs fifteen times in the Commonwealth of Australia Constitution Act (apart from references to the Federal Council of Australasia).^[5] According to usage at that time, the term had four distinct meanings: (1) a union of states linked together in one political system; (2) the new state formed by such a union; (3) a dual system of government, central and provincial; and (4) the central governing organs in such a dual system of government.^[6] The last of these contributes nothing to understanding the federal principle. The first reflects the ‘compact theory’ prevalent at the time of the establishment of the United States of America. The second and the third both involve the creation of a new polity by the federal union.

Quick and Garran suggest the second meaning provides an apt description of the Australian federation, at least in some respects:

‘It implies that the union has created a new State, without destroying the old
States: that the duality is in the essence of the State itself that there is a divided
sovereignty, and a double citizenship. This is the sense in which Freeman, Dicey
and Bryce speak of a “Federal State;” and it is the sense in which the phrase “a
Federal Commonwealth” is used in [section 3 of the Commonwealth of Australia
Constitution Act] and in the preamble. The word “Federation” ... is ... used as
synonym for the concrete “Federal State.” ’^[7]

The third meaning also illuminates significant aspects of the Australian union. According to Quick and Garran:

‘Federal ... is properly applied to denote a dual but co-ordinate system of
government, under one Constitution and subject to a common sovereignty, in
which one State employs two separate and largely independent governmental
organizations in the work of government; the whole governing system, central and
and general, as well as provincial and local, constituting the federal government;
the central and general government being one branch, and the provincial and local
governments forming the other branch of the governing organization.’^[8]

Both of these two meanings are clearly distinguishable from the first identified by Quick and Garran, a union in which the central government, with only legislative powers, does not itself constitute a polity.^[9] The framers of the Constitution, acutely conscious of the shortcomings of the Federal Council of Australasia set up in 1885,^[10] readily agreed upon the need to establish a national polity in addition to the existing colonial polities.

The national polity could not, however, replace the existing colonial polities. Both history and geography were opposed to any such suggestion. The original colony of New South Wales, dating from 1788, was later joined not only by Western Australia in 1829 and South Australia in 1836, both located beyond the territorial boundaries of New South Wales, but also by Tasmania in 1825, Victoria in 1851 and Queensland in 1859, all by separation from New South Wales. The demand for colonial proliferation continued unabated until federation with strongly supported separation movements in central and north Queensland. The Australian people were strongly resistant to government from afar. The vast Australian continent required a number of self-governing political communities.^[11]

The framers of the Constitution, with their accumulated wealth of experience in colonial government, agreed from the outset that these polities must continue in the Australian union with substantial (if diminished) authority exercisable within their established territorial boundaries. The National Australasian Convention that met in Melbourne in 1891 endorsed four principles proposed by Sir Henry Parkes ‘to establish and secure an enduring foundation for the structure of a federal government’, the first of which was:

‘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.’^[12]

At the same time, the Commonwealth must comprise legislative, executive and judicial branches, unlike the ill-starred Federal Council of Australasia.^[13] The people of the new States would participate directly in the new polity without relinquishing membership of their State polities.^[14] Just as representative government had provided a measure of self-government in the colonies during the latter part of the nineteenth century, its incorporation in the design of the new polity would ensure an extension of self-government to the Australian people in the twentieth century.^[15]

Quick and Garran confirm the importance of popular initiatives in various colonies, especially Victoria and New South Wales, in reviving the federation movement in the mid-1890s after the failure of the colonial legislatures to respond to the Constitution Bill produced at the Melbourne Convention in 1891. The Australasian Federation Enabling Acts required popular election in four colonies of the delegates to the Constitutional Conventions in 1897 and 1898, and popular ratification subsequently in all colonies of the draft Constitutions that emerged from those conventions before the submission of the final product to United Kingdom Government for enactment by the United Kingdom Parliament.^[16] The influence of the people was also apparent in the substantial modifications made to the 1891 Constitution Bill by the Conventions in 1897 and 1898, especially those requiring direct election of senators in the Original States and approval at referendum of proposed amendments to the Constitution.^[17]

Text and structure

Accordingly, the Constitution establishes the Commonwealth as a complete polity in functional terms with legislative, executive and judicial branches: The Parliament (Chapter I), The Executive Government (Chapter II), and The Judicature (Chapter III). The Constitution also provides for the continuation of the constitutions of the Original States, each of which was then (as it is today) complete in its possession of legislative, executive and judicial branches.^[18] The result is a collection of seven polities invested with the full range of governmental functions, exercising shared authority.

Despite yielding certain powers to the Commonwealth,^[19] the States continue as self-governing polities within the federal union with extensive legislative, executive and judicial authority.^[20]

The federal union is organized on the basis of territory. The States retain their pre-federation colonial boundaries that play a vital part in the distribution of authority among the Commonwealth and State polities. The Constitution confirms the territorial integrity of each State by requiring the consent of its legislature, together with the approval of the electors of the State, for any alteration of the territorial limits of that State.^[21] In addition the Constitution requires the consent of the relevant State Parliament for the formation of a new State by separation of territory from that State, and the consent of the Parliaments of all affected States for formation of a new State by the union of two or more States or parts of those States.^[22] The Commonwealth encompasses the territory of all of the States and federal territories.

ARCHITECTURE AND AUTHORITY

Historical context

The design of the Commonwealth Parliament presented formidable challenges to the framers of the Constitution in realising the federal principle. They readily accepted the need for a bicameral Parliament with one house comprising representatives of the people of each of the States, the other representatives of all of the people of the Commonwealth.^[23] Beyond that, there were significant differences. First was the matter of equal representation of the States in ‘their’ house, the Senate, as proposed by Parkes in 1891 but not by Barton in 1897.^[24] Despite vigorous opposition voiced by delegates from New South Wales and Victoria, equal representation was accorded to the Original States.^[25] Next was the closely related issue of the relative authority of the two houses, the Senate and the House of Representatives. Again, although the issue was strenuously contested, the views of the delegates of the smaller colonies prevailed. The Senate would have equal power with the House of Representatives in respect of all proposed laws other than those imposing taxation or appropriating public funds.^[26] The objective was that the bicameral structure of the Parliament with equal representation of the States in the Senate and broad equality of power vested in both houses would provide a political constraint upon the exercise of the legislative authority of the Commonwealth in accordance with the federal character of the Australian union.^[27]

But the federal principle also required that all of the Australian polities, the Commonwealth and the States, have limited authority, the scope of which would be prescribed by the Constitution and placed beyond the reach of Commonwealth and State legislatures and governments.

The framers initially considered two models for allocation of legislative power to the Commonwealth and the States, those of the United States of America and Canada. The former specified a modest list of federal powers but no state powers. The latter contained a more extensive list of federal powers together with a similar list of provincial powers; both federal and provincial powers were exclusive, apart from a few exceptions. The framers chose the United States model although the list of federal powers that they produced was considerably longer than that in the United States Constitution. They did so in the mistaken belief that United States model would be more effective than the Canadian in limiting the scope of federal legislative power.^[28]

In some respects, the design of the Commonwealth executive was relatively uncontroversial. During the Sydney Convention in 1891, Dibbs confessed to ‘possessing a slight tinge of republican notions’ but that idea was peremptorily dismissed then and never seriously revived.^[29] Instead, the framers applied the experience that they had acquired during the latter part of the nineteenth century in colonial governments based upon United Kingdom principles and practices, albeit with local adaptation.^[30] Moreover, unlike the situation with the Parliament, the Commonwealth executive was unconstrained by any provision for involvement by the States in its composition, structure or authority

However, a Senate with powers equal to those of the House of Representatives created a major dilemma for the framers in the design of the Commonwealth executive. Was such a Senate compatible with the principle of responsible government, a familiar and highly regarded element of all colonial constitutions? Many of the framers thought not.^[31]

There was no easy way out of this quandary, and the framers were driven to compromise. The Constitution would explicitly recognize the principle of responsible government but only to the extent that Commonwealth Ministers must be or become members of the Commonwealth Parliament.^[32] Otherwise, the content of that principle would be determined by constitutional convention.^[33] The States would have equal representation in the Senate but its power in the enactment of proposed laws appropriating revenue and imposing taxation would be somewhat curtailed.^[34] The authority of the House of Representatives in relation to proposed laws originating in that house would also be strengthened by the provision for a joint sitting as the final stage of the deadlocks mechanism,^[35] given the relative sizes of the two houses.^[36]

The framers recognised that the judicature would be the ‘sole arbiter and interpreter of the constitution’.^[37]

Another major consideration in the design of the Australian union was the desire of the founders to resolve the fractious fiscal competition among the colonies by establishing free trade and a common market within the union. This would be achieved by a constitutional affirmation of freedom of interstate trade and intercourse together with the conferral of exclusive power to impose customs duties on the Commonwealth, subject to agreement upon distribution of the proceeds of the Commonwealth tax.^[38] After little and rather confused debate, the framers of the Constitution expanded the exclusive power of the Commonwealth to include duties of excise.^[39] Nevertheless, this grant of extensive fiscal authority to the Commonwealth carried a significant proviso: the Constitution must mitigate the impact upon the States of this loss of their principal source of revenue.^[40]
Text and structure

The Constitution established a bicameral Commonwealth legislature comprising (along with the Queen) the Senate and the House of Representatives,^[41] with members of both chambers directly chosen by the people.^[42] In doing so it identified the centrality of the people within the Commonwealth polity and confirmed the status of representative democracy as a foundational element of the constitutional framework, closely related to the federal principle.^[43] As an interim measure, the Constitution initially adopted the franchise as prescribed by each State for its more numerous legislative chamber, but only until the Commonwealth Parliament ‘otherwise provides’.^[44] This power of the Parliament to determine the qualification of electors is subject to democratic requirements; the franchise must be the same for both the Senate and the House of Representatives, each elector must have only one vote for senators and one for members of the House of Representatives, and adults who have the right to vote at elections for the more numerous house of a State legislature can not be denied the right to vote at elections for either house of the Commonwealth Parliament.^[45]

The federal character of the Australian union is clearly evident in several aspects of the design of the Parliament. The composition of both houses is highly significant, as is the relationship between them. Moreover, the authority of the Parliament is limited.

The Original States are entitled to equal representation in the Senate, regardless of their population.^[46] The Constitution requires the people of each State to vote as one electorate in choosing their senators, again until the Parliament ‘otherwise provides’.^[47] Senators are chosen for a fixed term of six years, and serve on a rotation basis that provides for expiry of the terms of half of the senators chosen from each State every three years.^[48] The Constitution confers powers on the Parliament to make laws prescribing the method of choosing senators (which must be uniform for all States) and regulating the conduct of Senate elections.^[49] At the same time, though, the Constitution empowers the Governor of each State to issue the writs for election of senators,^[50] authorizes the Parliament of a State to make laws for determining the times and places of election of senators for the State,^[51] and provides that a casual vacancy in the Senate shall be filled by the vote in a joint sitting of the Houses of Parliament of the relevant State.^[52]

The House of Representatives is composed of members directly chosen by the people of the Commonwealth, for a term of up to three years.^[53] The Constitution recognizes the place of the States in the federal body politic by requiring that the number of members chosen in each of the States shall be in proportion to the respective numbers of their people,^[54] thereby precluding the creation of electorates straddling State or territory boundaries. It restricts the number of members of the House of Representatives, as nearly as practicable, to twice the number of senators.^[55] It also entitles each Original State to at least five members, regardless of its population.^[56] Subject to these requirements, the Constitution confers broad powers on the Parliament to determine the boundaries of electoral divisions, the number of members to be chosen for each division, the conduct of elections for the House of Representatives, and the voting system for the House of Representatives.^[57]

The relationship between the houses is intricate and carefully drawn, with all the attributes of an uneasy compromise. The Senate’s power in the enactment of legislation is equal to that of the House of Representatives, apart from particular exceptions relating to taxation and appropriation measures.^[58] However, the Constitution provides an elaborate mechanism to resolve disputes between the houses in relation to proposed laws originating in the House of Representatives, involving a simultaneous dissolution of the two houses followed by an election for all members of both of them, and culminating (if necessary) in a joint sitting of all the members of both houses.^[59] The relative size of the two houses, with the number of members of the House of Representatives about twice that of the Senate, is a significant but not decisive factor in determining the outcome of the joint sitting.

In accordance with the federal principle, the Constitution prescribes limits upon the legislative authority of all Australian polities.

The Constitution limits the authority of the Commonwealth Parliament by conferring power on it to make laws for the peace, order and good government of the Commonwealth with respect to specified subjects only.^[60] In a few highly significant cases, that power is exclusive:^[61] aspects of fiscal policy (duties of customs and excise, bounties on the production or export of goods),^[62] monetary policy,^[63] defence,^[64] admission or establishment of new States,^[65] and government of Commonwealth territories.^[66] Mostly, however, Commonwealth legislative powers are concurrent.^[67] In the event of inconsistency between the law of a State and the law of the Commonwealth, the latter prevails.^[68]

Moreover, the Constitution places specific limitations on Commonwealth legislative authority with respect to trade, commerce and intercourse among the States,^[69] taxation of property of any kind belonging to a State,^[70] and matters of religion.^[71] It also prohibits discrimination between States in taxation matters,^[72] State preference in trade, commerce and revenue matters,^[73] and discrimination based upon State of residence.^[74]

The Constitution does not confer power on State Parliaments; that is a matter for the State constitutions. They do so in general terms, to make laws for the peace, order and good government of the State in all cases whatsoever.^[75] Implicit in this language and inherent in the nature of the State polities is some limitation on their extra-territorial legislative authority.^[76] As previously noted, section 106 of the Constitution underpins State constitutions with the declaration that they shall continue as at the establishment of the Commonwealth until altered in accordance with their own provisions.^[77] At the same time, the Constitution does impose significant limitations upon State legislative authority arising from the exclusive legislative power of the Commonwealth Parliament,^[78] the declaration that Commonwealth legislation prevails over inconsistent State legislation in the broad field of concurrent legislative power,^[79] the requirement that trade, commerce and intercourse among the States ‘shall be absolutely free’,^[80] and various prohibitions upon the raising or maintaining any naval or military force, the imposition of any tax on property of any kind belonging to the Commonwealth,^[81] the creation of currency and legal tender,^[82] and the discriminatory treatment of residents of other States.^[83]
The Constitution confers the executive power of the Commonwealth on the Queen and makes it exercisable by the Governor-General as her representative.^[84] It requires the establishment of a Federal Executive Council to advise the Governor-General in the government of the Commonwealth and provides for the appointment of its members by the Governor-General.^[85] It authorises the Governor-General to appoint the Queen’s Ministers of State for the Commonwealth to administer Commonwealth departments established by the Governor-General in Council^[86] and declares that they shall be members of the Federal Executive Council.^[87] The States play no part in the appointment of Commonwealth Ministers.

Significantly, while membership of Parliament is not a prerequisite to appointment as a Minister, no Minister can hold office for more than three months without being or becoming a senator or a member of the House of Representatives.^[88] This requirement affirms the status of responsible government as a foundational element of the Constitution, notwithstanding the structure of the Constitution with its separate chapters relating to the Parliament and the executive.^[89]

The federal limits upon the executive authority of the Australian polities are less explicit than those upon their legislative authority. The Constitution provides that the executive power of the Commonwealth ‘extends to the execution and maintenance of this Constitution, and of the laws of the Commonwealth’.^[90] It does not prescribe any limits on the scope of State executive power, or attempt to resolve any conflict arising from the inconsistent exercise of Commonwealth and State executive power.

The federal character of the Australian union is apparent in some aspects of the design of the Australian judicature, together with the requirement of separation of judicial power that is implicit in the organisation in distinct chapters of the provisions of the Constitution dealing with the three branches of government.

The Constitution confers the judicial power of the Commonwealth upon the High Court of Australia, such other federal courts as the Parliament creates, and such other courts as the Parliament invests with federal jurisdiction.^[91] This provision is premised upon two significant and related distinctions: the first between two categories of courts, federal courts created by the Commonwealth Parliament and State courts in existence the time of federation or created by State legislatures thereafter in accordance with their constitutions;^[92] and the second between two distinct categories of jurisdiction, federal and state.

The Justices of the High Court and other federal courts are appointed by the Governor-General in Council, and may be removed only by the Governor-General in Council on an address from both houses of the Commonwealth Parliament.^[93] The States play no part, just as the Commonwealth plays no part in the appointment or removal of judges of State courts.

The Constitution places the High Court at the apex of the entire Australian judicature by conferring appellate jurisdiction on it from all decisions of any Justice exercising the original jurisdiction of the Court, any other federal court, any court exercising federal jurisdiction, and the Supreme Court of any State.^[94]

The Constitution also confers original jurisdiction directly upon the High Court in a number of specified matters.^[95] Furthermore, it empowers the Parliament to make laws conferring additional original jurisdiction on the Court in specified matters,^[96] defining the jurisdiction of any other federal court, and investing federal jurisdiction in any State court.^[97]

Several elements of this structure depart substantially from the federal principle: the appointment of Justices of the High Court solely by the Commonwealth Executive without ratification by the Senate or approval by the States; the general appellate jurisdiction (extending to decisions of State courts in matters of State jurisdiction) of the High Court; and the investiture by the Commonwealth Parliament of federal jurisdiction in State courts.

RECIPROCAL RESPONSIBILITY

Historical context

The framers of the Constitution well understood that, as a consequence of the design of the Australian union as a collection of polities, the Constitution must determine the relationship among those polities. That relationship would comprise several facets; it would be complex and fluid. The polities would be complete, distinct and, to some extent, independent. Despite their differences in population and area, the States would be equal in many constitutional respects. The relationship between the Commonwealth and the States would not be hierarchical,^[98] even though laws of the Commonwealth would prevail over those of the States, the High Court of Australia would have unlimited appellate jurisdiction and the Parliament could confer federal jurisdiction on State courts.

All polities, the Commonwealth and the States, would assume reciprocal responsibilities in the Australian union. These responsibilities would be quite distinct from the many opportunities provided by the Constitution for co-operation among the polities as a corollary of the distribution of powers among them, as these opportunities would not entail obligations.^[99] In contrast, the Constitution would impose a variety of obligations, some on the Commonwealth to ensure its action in relation to matters within its exclusive authority as defence, monetary policy and fiscal management,^[100] others on the States in relation to the operation of the Senate.^[101]

The Commonwealth’s responsibilities with respect to defence and monetary policy were uncontentious.^[102] Its responsibility for distribution among the Australian polities of the revenue derived from Commonwealth taxation, arising from its exclusive fiscal authority, was anything but. There was no easy way out of the dilemma described by one of the framers of the Constitution as ‘the hardest nut to crack’.^[103] Delegates expressed serious misgivings about the situation in which one polity would be responsible for raising public revenues for the others;^[104] in the end, however, they accepted that they had no choice.^[105] The achievement of the Australian union depended on a solution to ‘the financial question’.

Distribution of Commonwealth revenue among the Australian polities required two types of provisions in the Constitution, one for determining the total amount to be provided by the Commonwealth to the States, and the other for determining the amounts to be allocated by the Commonwealth to each of the States. As to the former, the issue was whether the Constitution should prescribe a formula for calculating the total amount or whether that task should be left to the Parliament. As to the latter, opinion was deeply divided between a simple allocation to each State on the basis of its population (the per capita method) and a more complicated, but perhaps ‘fairer’, allocation to each State of a fixed proportion of the net revenue collected within its territory (the collections method); yet another possibility was to leave this matter to the Parliament, too.^[106]

Text and structure

The Constitution provides that the polities are complete, distinct and independent in various ways. The new Commonwealth comprises three branches, legislative, executive and judicial, each of which has authority conferred upon it directly by the Constitution.^[107] The States retain their pre-federation Constitutions, substantially intact, until altered in accordance with the requirements of those Constitutions.^[108] The equality of the States is amply acknowledged in the representation of the Original States in the Senate,^[109] the strict protection accorded to the integrity of State territorial boundaries,^[110] the need for the consent of the Parliaments of affected States for the formation of new States^[111] and the requirement for approval of a proposed amendment of the Constitution by a majority of electors in a majority of States, as well as an overall majority of all electors.^[112] The States are also entitled to impartial treatment by the Commonwealth in any law or regulation of trade, commerce or revenue.^[113]

The relationship among the States within the Australian union is shaped by several provisions of the Constitution which establish a common market,^[114] allow interstate mobility,^[115] prohibit discrimination among residents of different States based upon their place of residence^[116] and ensure the recognition and legal effect of State laws, public records and judicial proceedings throughout the Commonwealth.^[117]

The States are responsible to the Commonwealth for issuing writs for Senate elections,^[118] filling Senate casual vacancies^[119] and incarceration of persons accused or convicted of offences against Commonwealth laws.^[120] In addition, they must not intrude upon matters of Commonwealth exclusive authority: the national capital and other Commonwealth places;^[121] Commonwealth departments transferred by the Constitution from the States;^[122] duties of customs and of excise, and bounties on the production or export of goods;^[123] naval and military defence;^[124] taxation of Commonwealth property^[125] and currency, coinage and legal tender.^[126]

The Commonwealth is responsible to the States for matters placed by the Constitution beyond their control. Three stand out.

First, as a corollary of the exclusive power of the Commonwealth over naval and military defence, the Commonwealth must protect the States against invasion and, on the application of any State, against domestic violence.^[127]

Secondly, as the States have little authority over monetary policy, the Commonwealth is responsible for the establishment and maintenance of the Australian monetary union.^[128]

Finally, as a consequence of the exclusive power on the Commonwealth to impose duties of customs and excise, the Commonwealth has responsibility for fiscal policy and a particular obligation to share with the States the public revenues derived from Commonwealth taxation. That obligation comprises several rather elaborate components: a limitation upon Commonwealth expenditure of the proceeds of Commonwealth duties of customs and excise, for at least the first ten years of the Australian union;^[129] specific requirements to distribute the Commonwealth’s surplus revenue among the States according to the collections method prior to the imposition of Commonwealth duties of customs and excise and for at least the next five years,^[130] and then on such basis as the Parliament ‘deems fair’;^[131] and broad authority for the Parliament to provide ‘financial assistance to any State on such terms and conditions as the Parliament thinks fit’.^[132]

JUDICIAL EXEGESIS

As the ‘sole arbiter and interpreter of the Constitution’,^[133] the High Court of Australia has the task of putting flesh on the bones of the federal principle.

Multiple polities

The significance of multiple polities in the design of the Australian federal union was apparent to the three members of the first High Court, all of whom had played prominent parts in drafting the Constitution: Griffith CJ (leader of the 1891 Convention), Barton J (leader of the 1897-98 Convention) and O’Conner J (member of the 1897-98).^[134] In its first case the new Court held that the State of Tasmania lacked the power to impose stamp duty upon an officer of the Commonwealth in relation to a receipt that he was required by Commonwealth statute to give for payment of his salary, pointing out that Tasmania and the Commonwealth were distinct polities with discrete powers of limited application.^[135] Only two years later, the Court held that similar constraints precluded the Commonwealth Parliament from regulating the terms of employment of officers of the State of New South Wales. The doctrine of immunity of Commonwealth and State instrumentalities, founded upon the necessity for freedom of each polity from the control of the other, was reciprocal.^[136]

By 1920, however, the composition of the High Court had changed completely as had its mood.^[137] In the Engineers Case, also involving the power of the Commonwealth Parliament to regulate terms of employment of State officials, the plurality disparaged the doctrine of immunity of instrumentalities as ‘an interpretation of the Constitution depending on an implication which is formed on a vague, individual conception of the compact ...’^[138] They cast aside the federal principle and instead emphasised ‘... two cardinal features of our political system which are interwoven in [the] texture [of the Australian Constitution] and ... radically distinguish it from the American Constitution... One is the common sovereignty of all parts of the British Empire; the other is the principle of responsible government.’^[139]

Neither of these ‘cardinal features’ could supplant the federal principle within the Australian union, however. The common sovereignty of all parts of the British Empire was inextricably bound up with the unity and indivisibility of the Crown, a doctrine which, long before Engineers, Harrison Moore had predicted would lead to ‘inconvenience and mischief’ in any federation.^[140] Forty years later, Latham CJ remarked that as a legal principle, the doctrine ‘tends to dissolve into verbally impressive mysticism’.^[141] The principle of responsible government, although undeniably significant in the internal organisation of the Commonwealth and the State polities in the Australian union, had no bearing on the distribution of power to those polities or the relationship between them.

So the High Court soon revived the federal principle, replacing the repudiated doctrine of immunity of instrumentalities with a more modest restraint upon interference between Commonwealth and State polities.^[142] This doctrinal reconstruction culminated in the State Banking Case, decided in 1947.^[143] The Court confirmed there that the Constitution not only provided for the establishment of multiple polities, Commonwealth and State, but also required their maintenance and continuation.^[144] In the words of Dixon J:

‘The foundation of the Constitution is the conception of a central government and a
number of State governments separately organised. The Constitution predicates
their continued existence as independent entities.’^[145]

Notwithstanding the assertion by the plurality in the Engineers’ Case that political constraints would suffice to prevent abuse of power in the Australian union,^[146] the Court in the Melbourne Corporation Case held that the federal structure of the union entails legal constraints upon interference between polities.

The Melbourne Corporation doctrine is now well entrenched in Australian jurisprudence. Nevertheless, the High Court recently observed that the doctrine ‘has proved insusceptible of precise formulation’.^[147] In practice it provides a measure of protection to the States against interference by the Commonwealth in the performance of their functions. The problem lies in determining the extent of that protection. While the doctrine also protects the Commonwealth against State interference, the Commonwealth is less likely to invoke that protection as it has more explicit means of resisting interference by States.^[148]

In early cases the Court distinguished between measures specifically directed by one polity against another and measures of general application, describing the former as discrimination.^[149] The Melbourne Corporation Case squarely raised this distinction as section 48 of the Banking Act 1945 (Cth) prohibited a bank from conducting any banking business for a State or any of its authorities. The Court acknowledged the distinction although two members rejected the description of specific measures as discrimination, for different reasons.^[150] Specific measures involved the placement of a ‘special burden’ by one polity on another.^[151] It was clear that the impugned provision of the Banking Act 1945 imposed such a burden on the States, but was that either necessary or sufficient to invoke the constitutional constraint upon interference between polities? Apparently not. The federal principle ensured the continuing existence of the States as distinct polities within the Australian union and their capacity to function as such polities.^[152]

The Court revisited the distinction between specific and general measures in 1985 in Queensland Electricity Commission v Commonwealth,^[153] a challenge to the validity of a Commonwealth statute directed at agencies of the Queensland government.^[154] After an extensive review of the authorities relating to the Melbourne Corporation doctrine, Mason J concluded:

‘This review ... shows that the principle is now well established and that it consists
of two elements: (1) the prohibition against discrimination which involves the
placing on the States of special burdens or disabilities; and (2) the prohibition
against laws of general application which operate to destroy or curtail the continued
existence of the States or their capacity to function as governments (citation
omitted). The second element of the prohibition is necessarily less precise than the
first; it protects the States against laws which, complying with the first element
because they have a general application, may nevertheless produce the effect which
it is the object of the principle to prevent.’^[155]

In contrast, Dawson J formulated the doctrine on a broader basis; the two elements of discrimination and special burden merely illustrated the application of the doctrine but did not determine its content.

‘... [U]nless it is otherwise apparent from the nature of a Commonwealth legislative
power or the language in which it is conferred, a Commonwealth law may not
unduly interfere with the exercise by a state of its constitutional or governmental
functions... Discrimination against the States or their agencies may point to breach
as may a special burden placed upon the States by a law of general application.

Be that as it may, a general proposition arises by implication from the federal
structure of the Constitution that the Commonwealth Parliament cannot impair the
capacity of the States to exercise for themselves their constitutional functions; that
is to say, their capacity ... to function effectually as independent units.’^[156]

In the words of Gibbs J, ‘the reason for the limitation is ... to protect the integrity of the States.’^[157]

In Re Australian Education Union; Ex parte Victoria, the Court acknowledged the possibility of confusion among statements of the Melbourne Corporation doctrine but chose not to resolve it on that occasion.^[158] The case turned on the scope of Commonwealth legislative power to prescribe the terms and conditions of employment of Victorian public servants. The plurality recognised that application of the Melbourne Corporation doctrine involved difficult matters of degree.^[159] The doctrine did not necessarily preclude the application of Commonwealth industrial awards to the vast majority of State employees.^[160] At the same time, some matters were critical to a State’s capacity to function as a government, such as determination of the number, identity, terms and conditions of employment and dismissal of State employees, and the appointment, removal and terms of engagement of Ministers, ministerial assistants and advisers, heads of department and high level statutory office holders, parliamentary officers, judges and others ‘at the higher levels of government’.^[161] In a strong dissent, Dawson J described such distinctions as ‘artificial’; they failed to ensure the capacity of a State to function as a polity in the Australian union.^[162]

In two recent cases, the High Court clarified the Melbourne Corporation doctrine by adopting the broader formulation of it as a corollary of the federal principle protecting the multiple polities within the Australian union.^[163] The cases challenged the validity of Commonwealth legislation that imposed a tax upon State judges and State members of parliament^[164] in respect of their pension and superannuation benefits.^[165] In Austin v The Commonwealth,^[166] Gaudron, Gummow and Hayne JJ declined to adopt the conclusion of Mason J in the Queensland Electricity Commission Case that the doctrine comprised two elements, discrimination and special burdens,^[167] on the ground that it could obscure the ‘fundamental constitutional conception’ underlying the doctrine.^[168] Instead:

‘There is, in our view, but one limitation, though the apparent expression of it varies
with the form of the legislation under consideration. The question presented by the
doctrine in any given case requires the assessment of the impact of particular laws
by such criteria as “special burden’ and “curtailment” of capacity of the States
“to function as governments”. These criteria are to be applied by consideration
not only of the form but also the “the substance and actual operation” of the
federal law (citation omitted). Further, this inquiry inevitably turns upon
matters of evaluation and degree of “constitutional facts” which are not readily
established by objective methods in curial proceedings.’^[169]

In Clarke v Commissioner of Taxation, the plurality quoted this passage with approval;^[170] French J also acknowledged that the doctrine was derived from the design of the Australian union as an agglomeration of distinct polities:

‘The constitutional implication considered in Austin and its precursors means that
the Commonwealth cannot, by the exercise of its legislative power, significantly
impair, curtail or weaken the capacity of the States to exercise their constitutional
powers and functions (be they legislative, executive or judicial) or significantly
impair, curtail or weaken the actual exercise of those powers or functions. The
Constitution assumes the existence of the States as “independent entities”. This
implies recognition of the importance of their status as components of the
federation.’^[171]

Architecture and Authority

The provisions of the Constitution allocating limited authority to the Commonwealth and State polities also created significant challenges for the High Court of Australia from the very beginning.

The deficiencies of the model chosen for conferring legislative authority upon the Commonwealth and the States were soon apparent. Commonwealth powers are specified, but State powers are not. Most Commonwealth powers are concurrent, as are State powers. Within the realm of shared power, Commonwealth legislation prevails over inconsistent State legislation. The scope of legislative powers depends on the meaning given by the High Court to the terse and imprecise language of the Constitution. The failure to specify any exclusive State legislative powers means that the Constitution provides the High Court with scant textual guidance in determining the scope of Commonwealth legislative powers.^[172]

The allocation method for executive authority is different but no less demanding in its application. The executive power of the Commonwealth ‘extends to the execution and maintenance of this Constitution, and of the laws of the Commonwealth.’^[173] State Constitutions (including the executive power of the States) continue, subject to the Commonwealth Constitution, until altered in accordance with their own requirements.^[174]

The first High Court took up the challenge involved in determining the scope of Commonwealth legislative powers with a doctrine of ‘reserved powers’ that curtailed Commonwealth power to prevent intrusion upon established legislative functions of the States.^[175] This doctrine was repudiated by the Court in the Engineers’ Case along with the doctrine of immunity of instrumentalities. In the words of the plurality:

‘It is undoubted that those who maintain the authority of the Commonwealth
Parliament to pass a certain law should be able to point to some enumerated power
containing the requisite authority. But we also hold that, where the affirmative terms
of a stated power would justify an enactment, it rests upon those who rely on some
limitation or restriction upon the power, to indicate it in the Constitution.’^[176]

In the aftermath of the Engineers’ Case, the question for the High Court was whether the federal principle was relevant in determining the scope of Commonwealth legislative power. The Melbourne Corporation doctrine protected the constitutional integrity of the States. But was that integrity confined to institutional matters or did it also require the maintenance of a measure of legislative authority in the States?

Paradoxically, Dixon J apparently favoured the narrower view in the Melbourne Corporation Case:

‘The foundation of the Constitution is the conception of a central government and a
number of State governments separately organized. The Constitution predicates
their continued existence as independent entities. Among them it distributes powers
of governing the country. The framers of the Constitution do not appear to have
considered that power itself forms part of the conception of a government. They
appear rather to have conceived the States as bodies politic whose existence and
nature are independent of the powers allocated to them.’^[177]

Whether or not the framers of the Constitution excluded power from their conception of government, the High Court has frequently done so. Outstanding examples include the Uniform Tax Cases and the Payroll Tax Case (extension of the fiscal dominance of the Commonwealth over the States),^[178] the Tasmanian Dam Case (implementation of international treaty obligations on matters otherwise beyond the authority of Parliament),^[179] the Native Title Act Case (protection and regulation of land rights of Indigenous peoples),^[180] the Work Choices Case (regulation of the activities of foreign corporations and domestic trading and financial corporations)^[181] and the MRRT Case (taxation of ‘above normal profits’ derived from production of prescribed mineral resources).^[182] Attempts to invoke the Melbourne Corporation doctrine were firmly rebuffed by the Court in all of these cases on the basis that Commonwealth legislation encroaching upon matters of traditional State legislative activity, however substantial the intrusion may be, did not ‘impose any special burden or disability on the exercise of powers and fulfilment of functions of the States which curtails their capacity to function as governments.’^[183]

In contrast, the High Court has reaffirmed the significance of the federal principle in recent cases requiring determination of the scope of the executive power of the Commonwealth.

In Pape v Federal Commissioner of Taxation, the Court identified section 61 of the Constitution as the source of Commonwealth authority to spend public funds. Members of the Court were unable to agree upon the scope of the power and, in particular, whether it extended to the short-term fiscal measures adopted by the Commonwealth in response to the global financial crisis.^[184] But all agreed that the power was limited in scope and some identified the federal principle as a basis for the limitation. As Hayne and Kieffel JJ explained:

‘The executive power of the Commonwealth is the executive power of a polity of
limited powers. The Engineers’ Case decided that the powers are not to be
understood as confined by a priori assumptions. But no statement of this Court
suggests that the executive power of the Commonwealth is unbounded.’^[185]

Williams v The Commonwealth^[186] was a challenge to the validity of the National School Chaplaincy Program established by the Commonwealth by means of administrative guidelines, contractual arrangements and expenditure of public funds, without legislative authorisation other than appropriation of the necessary funds. The High Court relied on different aspects of the federal principle in its response to the Commonwealth’s submissions on the scope of the executive power of the Commonwealth. The first was that the Commonwealth, by analogy to a natural person, had almost unlimited capacity to contract and spend. The Court pointed out that, unlike a natural person, the Commonwealth was a political entity established by the Constitution and that its expenditure involved public funds.^[187] The second was that the executive power of the Commonwealth encompassed at least all of the matters within the scope of its legislative power. That too was rejected. According to French CJ:

‘A Commonwealth Executive with a general power to deal with matters of
Commonwealth legislative competence is in tension with the federal
conception which informed the function of the Senate as a necessary organ of
Commonwealth legislative power. It would undermine the parliamentary control of
the executive branch and weaken the role of the Senate.’^[188]

Shortly afterwards, the Parliament enacted legislation to remedy the deficiency in Commonwealth executive power. The validity of that legislation was then challenged in Williams v The Commonwealth [No 2].^[189] The High Court upheld the challenge on the ground that Parliament lacked the power to enact the legislation, and refused to reconsider its decision in Williams v The Commonwealth. In doing so, the Court explicitly repudiated any assumption that the Commonwealth’s executive power to spend and contract is the same as that of the British Executive. Once more, it invoked the federal principle:

‘This assumption, which underpinned the arguments advanced by the
Commonwealth parties about executive power, denies the “basal consideration”
(citation omitted) that the Constitution effects a distribution of powers and functions
between the Commonwealth and the States. The polity which, as the
Commonwealth parties rightly submitted, must “posses all the powers that it needs
in order to function as a polity” is the central polity of a federation in which
independent governments exist in the one area and exercise powers in different
fields of action carefully defined by law (citation omitted). It is not a polity
organised and operating under a unitary system or under a flexible constitution
where the Parliament is supreme.’^[190]

Reciprocal Responsibility

In stark contrast to its willingness to acknowledge the significance of multiple polities in the Australian union and to determine and enforce the limits placed by the Constitution upon the authority of those polities, the High Court has been reluctant to recognise and give legal effect to the reciprocal responsibilities imposed by the Constitution on the Commonwealth and the States.

In R v The Governor of South Australia, the High Court refused an application for a writ of mandamus ordering the Governor of South Australia to issue a writ pursuant to section 12 of the Constitution for the election of a senator for South Australia, following upon a declaration by the Court of Disputed Returns that the recent election of one of the three senators for that State was void.^[191] The question was whether it had jurisdiction to compel performance, assuming that section 12 of the Constitution imposed a public duty on the Governor. The answer lay in the nature of the functions and duties of the Governor of the State under the Constitution with respect to the election of senators.^[192] The Court pointed out:

‘There are in fact, three modes in which the place of a senator may be filled –
popular election, choice by both Houses of Parliament, and appointment by the
Governor with the advice of the Executive Council. In a case where the choice
ought to be made by both Houses of Parliament it is quite clear that this Court could
not command those Houses to meet and choose a senator and it would be immaterial
whether a writ had or had not been issues by the Governor for holding a popular
election. It is equally clear that the Governor could not be commanded to do an act
which he can only do with the advice of the Executive Council. As, therefore, this
Court would have no authority to correct by mandamus a mistake of one kind as to
the mode of choice, it seems clear that it was not intended to have authority by
mandamus in such matters at all.’^[193]

It seems surprising that, in the course of landmark decisions on the authority of the Commonwealth to deal with internal threats to Australia’s security, the High Court has made no reference to the responsibility placed explicitly by section 119 of the Constitution upon the Commonwealth to protect the States against invasion and domestic violence. In 1951, the Court held that the Parliament did not have the power to enact the Communist Party Dissolution Act 1950 (Cth).^[194] In 2007, the Court decided that the Parliament did have the power to insert anti-terrorism provisions in the Criminal Code Act 1995 (Cth).^[195] Possible sources of Commonwealth legislative power were section 51(vi) of the Constitution (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); sections 51(xxxix) and 61 of the Constitution (incidental power together with the executive power);^[196] perhaps an implied legislative power for protection of the Commonwealth against domestic attack.^[197] The Commonwealth’s responsibility under section 119 was apparently irrelevant.^[198]

This fixation upon power to the exclusion of responsibility has been illustrated best in the High Court’s demolition of the hard-fought financial settlement that the framers incorporated in the Constitution. At the heart of that settlement was the responsibility placed upon the Commonwealth to use its extensive fiscal authority, much of which was exclusive, to raise public revenues on behalf of all polities in the Australian union, Commonwealth and State, to be shared fairly among them.

The demolition began in 1908 with the Court’s decision in the Surplus Revenue Case that the Commonwealth Parliament could evade the responsibility imposed upon it by section 94 of the Constitution to distribute the surplus revenue of the Commonwealth to the States ‘on such basis as it deems fair’ by eliminating the surplus through the simple device of appropriating moneys from the Consolidated Revenue Fund for future Commonwealth expenditure.^[199] The decision was a sad triumph of form over substance. A majority of the Court held that the outcome depended on the meaning of ‘surplus revenue’ in section 94 of the Constitution, having regard to the language of related sections 89 and 93;^[200] some also considered the power of the Parliament to enact the Surplus Revenue Act 1908 (Cth);^[201] Barton J framed the issue in terms of the validity of the appropriation acts.^[202] Little attention was given to the historical context or structural implications of the numerous provisions of the Constitution that made up the financial settlement.^[203] Tellingly, Isaacs J merely remarked that the primary object of the financial clauses, read together and understood as part of a scheme of government, was ‘the creation and maintenance of the Commonwealth’,^[204] apparently devoid of any constitutional responsibility for alleviation of the parlous fiscal position of the States within the Australian union. A century later, nothing has changed.^[205]

Subsequently, the High Court reinforced the Commonwealth’s financial dominance over the States in momentous decisions relating to income tax and excise duties without any regard to the responsibility for sharing the public revenues derived from Commonwealth taxation fairly with the States. In the First Uniform Tax Case, the Court upheld the validity of wartime Commonwealth legislation supplanting State income taxes.^[206] Although the States later succeeded in overturning Commonwealth legal barriers to their reinstatement of income taxes,^[207] they have been deterred from doing so by practical and political considerations. In Ha v New South Wales, the Court confirmed that the Commonwealth’s exclusive legislative power to impose excise duties now encompassed practically all taxation of commodities,^[208] far beyond the mere taxation of local manufacture of goods as thought at the time of federation.^[209]

Finally, the demolition of the financial settlement was concluded by decisions of the Court on the scope of the power conferred on Parliament by section 96 of the Constitution to grant financial assistance to any State on such terms and conditions as the Parliament thinks fit. The Court rebuffed most attempts to constrain such terms and conditions,^[210] apart from exceptions attributable to specific provisions of the Constitution such as section 116^[211] and section 51 (xxxi).^[212] Again, the Court was preoccupied with Commonwealth power rather than its responsibility to share public revenues with the States. More recently, members of the Court have drawn attention to ‘the significance of s 96 in the federal structure’, but without acknowledgment of Commonwealth responsibility to the States in fiscal matters.^[213]

CONCLUSION

The core ingredients of the federal principle in the Australian union are polities, power and responsibility. The Constitution establishes the Commonwealth polity and guarantees the continuation of the State polities. The States are part of the Commonwealth but distinct entities within it. The Constitution prescribes the complex relationship among the multiple polities based upon their limited authority and reciprocal responsibility.

The federal principle requires the maintenance of all polities and their capacity to function as such within the Australian union. While the Commonwealth needs little protection from the States, given the distribution of authority within the Australian union, the reverse is certainly not the case. The High Court has responded to the need for protection of the States by proscribing the exercise of Commonwealth authority that threatens the institutional integrity of the States.

The adequacy of that protection is open to question, however, especially in relation to the allocation of legislative authority between the Commonwealth and the States. The consistent refusal of the High Court to take account of the federal principle in determining the scope of Commonwealth legislative powers is surprising, on three counts. First, the failure of the Constitution to specify any exclusive legislative powers of the States leaves them vulnerable to unchecked expansion of Commonwealth powers expressed in ambulatory terms. Secondly, the capacity of States to function as distinct polities within the Australian union surely depends on their retention of some measure of exclusive legislative power; that can be achieved only by limitation of the scope of Commonwealth legislative powers since Commonwealth laws override inconsistent State laws. Thirdly, the High Court’s acknowledgment of the federal principle in recent cases involving the scope of the executive power of the Commonwealth seems difficult to reconcile with its refusal to do so in cases involving Commonwealth legislative powers.

The neglect of reciprocal responsibility amounts to an even greater shortcoming in the operation of the federal principle in the Australian union. This deficiency may be attributable to the view that political means of recognition and enforcement of reciprocal responsibilities are both appropriate and adequate without any need to resort to legal means. The High Court’s decision in the Surplus Revenue Case lends some support to it, and the plurality in the Engineers Case expressed a similar view with respect to determination of the scope of Commonwealth legislative powers. However, the Court soon acknowledged the incapacity of the political process to determine the scope of legislative authority in the federal union. Reliance upon Parliament to determine the scope of its own powers creates an obvious and insoluble conflict of interest. Precisely the same problem exists in relation to responsibilities. The failure of Parliament to accept and discharge its constitutional responsibilities is best illustrated by the sad fate of the financial settlement, established as a cornerstone of the Australian union.^[214] In light of this historical experience, the persistent reticence of the High Court to enforce responsibility stands in stark contrast with its willingness to prescribe limits on power.




17 November 2016

^[1] Commonwealth of Australia Constitution Act 1900 (UK), s 3; see also the preamble to this Act.
^[2] Commonwealth of Australia Constitution Act 1900 (UK), s 8
^[3] Anne Twomey, ‘Independence’
^[4] Commonwealth of Australia Constitution Act 1900 (UK), s 6
^[5] John Quick and Robert Randolph Garran, The Annotated Constitution of the Australian Commonwealth (Legal Books 1976) 332; they overlook a further occurrence, in s 51(xxxix).
^[6] Ibid 333
^[7] Ibid
^[8] Ibid 334
^[9] Ibid; a more appropriate descriptor for this union would be ‘confederate’.
^[10] Federal Council of Australasia Act 1885 (UK)
^[11] Cheryl Saunders, The Constitution of Australia (Hart Publishing 2011) 3-5
^[12] Convention Debates, Sydney, 1891, 23 (Parkes); see also Convention Debates, Adelaide, 1897, 395 (Barton)
^[13] Ibid
^[14] Convention Debates, Sydney, 1891, 93 (Barton); see also Convention Debates, Adelaide, 1897, 97, 642 (Higgins)
^[15] Convention Debates, Adelaide, 1897, 395 (Barton); John Quick and Robert Randolph Garran, The Annotated Constitution of the Australian Commonwealth (Legal Books 1976) 418-9, 449-50
^[16] Ibid 150-165; see also Saunders [note 11] 11-12
^[17] Susan Kenny, ‘Evolution’
^[18] Constitution, s 106
^[19] Constitution, ss 52, 69, 90, 114, 115
^[20] Constitution, ss 106, 107; Andrew Inglis Clark, Studies in Australian Constitutional Law (1901) 12-13
^[21] Constitution, s 123; see also s 128
^[22] Constitution, s 124
^[23] Convention Debates, Sydney, 1891, 23 (Parkes); see also Convention Debates, Adelaide, 1897, 395 (Barton)
^[24] Ibid
^[25] Convention Debates, Adelaide, 1897, 641-668, 1190; see also Convention Debates, Sydney, 1897, 256-355

^[26] Convention Debates, Sydney, 1891, 113 (Baker); see also Convention Debates, Adelaide, 1897, 21 (Barton)
^[27] Michael Crommelin, ‘The Federal Model’ in Gregory Craven (ed), Australian Federation: Towards the Second Century (MUP 1992) 33, 36-39
^[28] James Crawford, ‘The Legislative Power of the Commonwealth’ in Gregory Craven (ed), The Convention Debates 1891-1898; Commentaries, Indices and Guide, Volume VI (Legal Books, 1986) 113; see also Michael Crommelin, ‘The Federal Model’ in Gregory Craven (ed), Australian Federation: Towards the Second Century (MUP 1992) 33, 39-40
^[29] Convention Debates, Sydney, 1891, 185-8 (Dibbs), 228-9 (Gillies), 272 (McMillan), 301 (Abbott), 323 (Parkes); see Michael Crommelin, ‘The Executive’ in Gregory Craven (ed), The Convention Debates 1891-1898; Commentaries, Indices and Guide, Volume VI (Legal Books, 1986) 127-130
^[30] Paul Finn, Law and Government in Colonial Australia (OUP) 1987
^[31] Convention Debates, Sydney, 1891, 35, 37 (Griffith); Convention Debates, Adelaide, 1897, 175 (Isaacs)
^[32] Constitution, s 64
^[33] Michael Crommelin, ‘The Executive’ in Gregory Craven (ed), The Convention Debates 1891-1898; Commentaries, Indices and Guide, Volume VI (Legal Books, 1986) 136-142; see also Michael Crommelin, ‘The Federal Model’ in Gregory Craven (ed), Australian Federation: Towards the Second Century (MUP 1992) 33, 40-43
^[34] Constitution, s 53
^[35] Constitution, s 57
^[36] Constitution, s 24
^[37] Convention Debates, Sydney, 1891, 198 (Cockburn); see also 2:129, 445
^[38] Convention Debates, Sydney, 1891, ** (Parkes resolutions); see also John Quick and Robert Randolph Garran, The Annotated Constitution of the Australian Commonwealth (Legal Books 1976) 125
^[39] Cheryl Saunders, ‘Fiscal Federalism – A General and Unholy Scramble” in Gregory Craven (ed), Australian Federation: Towards the Second Century (MUP 1992) 101, 103
^[40] John Quick and Robert Randolph Garran, The Annotated Constitution of the Australian Commonwealth (Legal Books 1976) 827; see also Cheryl Saunders, ‘Fiscal Federalism – A General and Unholy Scramble” in Gregory Craven (ed), Australian Federation: Towards the Second Century (MUP 1992) 101, 104
^[41] Constitution, s 1
^[42] Constitution, ss 7, 24
^[43] Paul Finn, ‘A Sovereign People, A Public Trust” in PD Finn (ed), Essays on Law and Government, Vol 1 (Law Book Company 1995) 1, 24
^[44] Constitution, ss 8, 30, 31, 51(xxxvi); the Parliament provided otherwise in 1902.
^[45] Constitution, s 8, 30
^[46] Constitution, s 7
^[47] Constitution, ss 7, 51(xxxvi)
^[48] Constitution, ss 7, 13
^[49] Constitution, ss 9, 10, 51(xxxvi)
^[50] Constitution, s 12
^[51] Constitution, s 9
^[52] Constitution, s 15
^[53] Constitution, ss 24, 28
^[54] Constitution, s 24
^[55] Ibid
^[56] Ibid
^[57] Constitution, ss 29, 31, 51(xxxvi)
^[58] Constitution, s 53
^[59] Constitution, s 57
^[60] See Mark Leeming, ‘Power’ 12-13
^[61] Constitution, s 52
^[62] Constitution, ss 90, 91, 114; see also s 51(ii)
^[63] Constitution, ss 115, s 51(xii)
^[64] Constitution, ss 114, 119
^[65] Constitution, s 121
^[66] Constitution, s 122
^[67] Constitution, s 51
^[68] Constitution, s 109
^[69] Constitution, s 92
^[70] Constitution, s 114
^[71] Constitution, s 116
^[72] Constitution, s 51(ii)
^[73] Constitution, s 99
^[74] Constitution, s 117
^[75] Constitution Act 1902 (NSW), s 5; cf Constitution Act 1975 (Vic), s 16: ‘to make laws in and for Victoria in all cases whatsoever’
^[76] But note Australia Acts 1986 (Cth and UK), s 2
^[77] Constitution, s 106; see also s 107
^[78] Constitution, s 52
^[79] Constitution, s 109
^[80] Constitution, s 92
^[81] Constitution, s 114
^[82] Constitution, s 115
^[83] Constitution, s 117
^[84] Constitution, s 61
^[85] Constitution, s 62
^[86] The expression ‘Governor-General in Council’ means the Governor-General acting with the advice of the Federal Executive Council: Constitution, s 63
^[87] Constitution, s 64
^[88] Ibid
^[89] Victorian Stevedoring and General Contracting Co Pty Ltd v Dignan [1931] HCA 34; (1931) 46 CLR 73
^[90] Constitution, s 61
^[91] Constitution, s 71
^[92] Constitution, s 106
^[93] Constitution, s 72
^[94] Constitution, s 73; see also s 74, which limits appeals to the Judicial Committee of the Privy Council from the High Court, and Australia Act 1986 (Cth) & (UK), s 11
^[95] Constitution, s 75
^[96] Constitution, s 76
^[97] Constitution, s 77
^[98] W. Harrison Moore, The Constitution of the Commonwealth of Australia (John Murray 1903) 70
^[99] Robert French, Co-operative Federalism
^[100] Other matters would include the establishment of the High Court of Australia and the Interstate Commission: Constitution, ss 71, 101
^[101] Constitution, ss 12, 15
^[102] John Quick and Robert Randolph Garran, The Annotated Constitution of the Australian Commonwealth (Legal Books 1976) 950 (monetary policy), 964 (defence)
^[103] Convention Debates, Sydney, 1897, 9 (Symons); Cheryl Saunders, ‘The Hardest Nut to Crack; The Financial Settlement in the Commonwealth Constitution’ in Gregory Craven (ed), The Convention Debates 1891-1898; Commentaries, Indices and Guide, Volume VI (Legal Books, 1986) 149
^[104] Cheryl Saunders, ‘The Hardest Nut to Crack; The Financial Settlement in the Commonwealth Constitution’ in Gregory Craven (ed), The Convention Debates 1891-1898; Commentaries, Indices and Guide, Volume VI (Legal Books, 1986) 149,
163
^[105] Cheryl Saunders, Fiscal Federalism – A General and Unholy Scramble” in Gregory Craven (ed), Australian Federation: Towards the Second Century (MUP 1992) 101, 108
^[106] Cheryl Saunders, ‘The Hardest Nut to Crack; The Financial Settlement in the Commonwealth Constitution’ in Gregory Craven (ed), The Convention Debates 1891-1898; Commentaries, Indices and Guide, Volume VI (Legal Books, 1986) 149, 165-169
^[107] Chapters I, II and III
^[108] Constitution, s 106; see also ss 107, 108
^[109] Constitution, s 7; see also s 15
^[110] Constitution, s 123
^[111] Constitution, s 124; cf s 121
^[112] Constitution, s 128
^[113] Constitution, s 99; see also s 51(ii)
^[114] Constitution, ss 90, 92
^[115] Constitution, s 92
^[116] Constitution, s 117
^[117] Constitution, s 118
^[118] Constitution, s 12
^[119] Constitution, s 15
^[120] Constitution, s 120
^[121] Constitution, s 52(i)
^[122] Constitution, s 52(ii)
^[123] Constitution, s 52(iii), 90
^[124] Constitution, s 114
^[125] Ibid
^[126] Constitution, s 115
^[127] Constitution, s 119
^[128] Constitution, ss 115, 51(xii)
^[129] Constitution, s 87
^[130] Constitution, ss 89, 93
^[131] Constitution, s 94
^[132] Constitution, s 96
^[133] Convention Debates, Sydney, 1891, 198 (Cockburn)
^[134] Cheryl Saunders, The Constitution of Australia (Hart Publishing 2011) 84
^[135] D’Emden v Pedder [1904] HCA 1; (1904) 1 CLR 91, 113-115
^[136] Federated Amalgamated Government Railway and Tramway Service Association v New South Wales Railway Traffic Employees Association (Railway Servants’ case) [1906] HCA 94; (1906) 4 CLR 488, 537-538
^[137] Cheryl Saunders, The Constitution of Australia (Hart Publishing 2011) 85
^[138] Amalgamated Society of Engineers v Adelaide Steamship Co Ltd (Engineers’ Case) [1920] HCA 54; (1920) 28 CLR 129, 145 (Knox CJ, Isaacs, Rich and Starke JJ)
^[139] Ibid 146
^[140] William Harrison Moore, ‘The Crown as Corporation’ (1904) 20 Law Quarterly Review 351, 359; see Sue v Hill [1999] HCA 30; (1999) 199 CLR 462, 501 (Gleeson CJ, Gummow and Hayne JJ)
^[141] Minister of Works (WA) v Gulson [1944] HCA 27; (1944) 69 CLR 338, 350-351 (Latham CJ)
^[142] Pirrie v McFarlane [1925] HCA 30; (1925) 36 CLR 170, 184 (Knox CJ), 192 (Isaacs J), 216-217 Higgins J0, 229 (Starke J); West v Commissioner of Taxation (NSW) [1937] HCA 26; (1937) 56 CLR 657, 668-669 (Latham CJ), 681 (Dixon J), 687 (Evatt J)
^[143] Melbourne Corporation v Commonwealth (State Banking Case) [1947] HCA 26; (1947) 74 CLR 31
^[144] Ibid, 55 (Latham CJ), 65-66 (Rich J), 70 (Starke J), 77, 81-82 (Dixon J), 99 (Williams J)
^[145] Ibid 82 (Dixon J)
^[146] Amalgamated Society of Engineers v Adelaide Steamship Co Ltd (Engineers’ Case) [1920] HCA 54; (1920) 28 CLR 129, 151-152 (Knox CJ, Isaacs, Rich and Starke JJ)
^[147] Austin v Commonwealth (2003) 215 CLR 185, 258 (Gaudron, Gummow and Hayne JJ); quoted in Fortescue Metals Group Limited v The Commonwealth (MRRT Case) [2013] HCA 34; (2013) 250 CLR 548, 610 (Hayne, Bell and Keane JJ)
^[148] Constitution, s 109; see Melbourne Corporation v Commonwealth (State Banking Case) [1947] HCA 26; (1947) 74 CLR 31, 82-83 (Dixon J)
^[149] Pirrie v McFarlane [1925] HCA 30; (1925) 36 CLR 170, 184 (Knox CJ), 217 (Higgins J), 229 (Starke J); West v Commissioner of Taxation (NSW) [1937] HCA 26; (1937) 56 CLR 657, 668-669 (Latham CJ), 681 (Dixon J), 687 (Evatt J)
^[150] Melbourne Corporation v Commonwealth (State Banking Case) [1947] HCA 26; (1947) 74 CLR 31, 61 (Latham CJ), 75 (Starke J); cf 66 (Rich J), 99-100 (Williams J); contra 94 (McTiernan J)
^[151] Ibid 81 (Dixon J)
^[152] Ibid 52-3, 55, 61-2 (Latham CJ), 65-66 (Rich J), 70, 74-75 (Starke J), 77-83 (Dixon J), 99 (Williams J); contra 88-89 (McTiernan J)
^[153] [1985] HCA 56; (1985) 159 CLR 192
^[154] Conciliation and Arbitration (Electricity Industry) Act 1985 (Cth)
^[155] Queensland Electricity Commission v Commonwealth [1985] HCA 56; (1985) 159 CLR 192, 217; see also 216-219 (Wilson J), 234-236 (Brennan J)
^[156] Ibid 260; see also 205-207 (Gibbs CJ), 245-246 (Deane J)
^[157] Ibid 207
^[158] (1994-5) 184 CLR 188, 227 (Mason CJ, Brennan, Deane, Toohey, Gaudron and McHugh JJ)
^[159] Ibid 228
^[160] Ibid 230
^[161] Ibid 230-231
^[162] Ibid 249-250
^[163] [1985] HCA 56; (1985) 159 CLR 192, 260
^[164] Clarke v Commissioner of Taxation [2009] HCA 33; (2009) 240 CLR 272
^[165] Superannuation Contributions Tax (Members of Constitutionally Protected Superannuation Funds) Imposition Act 1997 (Cth)
^[166] Austin v The Commonwealth (2003) 215 CLR 185
^[167] [1985] HCA 56; (1985) 159 CLR 192, 217
^[168] Austin v The Commonwealth (2003) 215 CLR 185, 258-259
^[169] Ibid 249
^[170] [2009] HCA 33; (2009) 240 CLR 272, 307; see also 312 (Hayne J)
^[171] Ibid 298
^[172] Michael Crommelin, ‘The Federal Model’ in Gregory Craven (ed), Australian Federation: Towards the Second Century (MUP 1992) 33, 43
^[173] Constitution, s 61
^[174] Constitution, s 106
^[175] R v Barger [1908] HCA 43; (1908) 6 CLR 41, 67 (Griffith CJ, Barton and O’Connor JJ)
^[176] Amalgamated Society of Engineers v Adelaide Steamship Co Ltd (Engineers’ Case) [1920] HCA 54; (1920) 28 CLR 129, 154 (Knox CJ, Isaacs, Rich and Starke JJ)
^[177] Melbourne Corporation v Commonwealth (State Banking Case) [1947] HCA 26; (1947) 74 CLR 31, 82
^[178] South Australia v The Commonwealth (First Uniform Tax Case) [1942] HCA 14; (1942) 65 CLR 373; Victoria v The Commonwealth (Second Uniform Tax Case) [1957] HCA 54; (1957) 99 CLR 575; Victoria v The Commonwealth (Payroll Tax Case) [1971] HCA 16; (1971) 122 CLR 353
^[179] The Commonwealth v Tasmania (Tasmanian Dam Case) [1983] HCA 21; (1983) 158 CLR 1
^[180] Western Australia v The Commonwealth (Native Title Act Case) [1995] HCA 47; (1995) 183 CLR 373
^[181] New South Wales v The Commonwealth (Work Choices Case) [2006] HCA 52; (2006) 229 CLR 1, 119-120
^[182] Fortescue Metals Group Limited v The Commonwealth (MRRT Case) [2013] HCA 34; (2013) 250 CLR 548, 607-611 (Hayne, Bell and Keane JJ); see also 563 (French CJ), 636-637 (Kiefel J)
^[183] Ibid 611
^[184] [2009] HCA 23; (2009) 238 CLR 1, 56-64 (French CJ); 83-88 (Gummow, Crennan and Bell JJ); 114-124 (Hayne and Kieffel JJ): 177-199 (Heydon J)
^[185] Ibid 118-9 (in dissent); see also 181, 199 (Heydon J); cf 60 (French CJ); 85 (Gummow, Crennan and Bell JJ)
^[186] (2012) 249 CLR 156
^[187] Ibid 184 (French CJ); 237 (Gummow and Bell JJ); 253-254 (Hayne J; 346 (Crennan J); 393-394 (Kiefel J)
^[188] Ibid 205; see also 234 (Gummow and Bell JJ); 248, 252 (Hayne J)
^[189] [2014] HCA 23; (2014) 252 CLR 416
^[190] Ibid 469 (French CJ, Hayne, Kiefel, Bell and Keane JJ; 471 (Crennan J)
^[191] (1907) 4 CLR 1492 (Griffith CJ, Barton, O’Connor, Isaacs and Higgins JJ)
^[192] Ibid 1510
^[193] Ibid 1512; see also Mark Leeming, ‘Judicial Review of Vice-Regal Decisions: South Australia v O’Shea, Its Precursors and Its Progeny’ [2015] AdelLawRw 1; (2015) 36 Adelaide Law Review 1
^[194] Australian Communist Party v The Commonwealth (Communist Party Case) [1951] HCA 5; (1951) 83 CLR 1 (Latham CJ, dissenting)
^[195] Thomas v Mowbray [2007] HCA 33; (2007) 233 CLR 307
^[196] Note also Pape v Federal Commissioner of Taxation [2009] HCA 23; (2009) 238 CLR 1, 83 (Gummow, Crennan and Bell JJ): ‘ ... the phrase “maintenance of this Constitution” in s 61 ... conveys the idea of the protection of the body politic or nation of Australia.’
^[197] Communist Party Case [1951] HCA 5; (1951) 83 CLR 1, 259-260 (Fullagar J; cf Thomas v Mowbray [2007] HCA 33; (2007) 233 CLR 307, 361-362 (Gummow and Crennan JJ)
^[198] Cf Pape v Federal Commissioner of Taxation [2009] HCA 23; (2009) 238 CLR 1, 83 (Gummow, Crennan and Bell JJ): ‘The Constitution assumes ... in s 119 ... the existence and conduct of activities by the “Executive Government of the State”.’
^[199] New South Wales v The Commonwealth (Surplus Revenue Case) [1908] HCA 68; (1908) 7 CLR 179
^[200] Ibid 189 (Griffith CJ); 197 (O’Connor J); 200 (Isaacs J); 205 (Higgins J).
^[201] Ibid 199 (Isaacs J); 205 (Higgins J)
^[202] Ibid 192
^[203] Constitution ss 90, 81, 83, 87, 89, 93, 94, 96
^[204] New South Wales v The Commonwealth (Surplus Revenue Case) [1908] HCA 68; (1908) 7 CLR 179, 201
^[205] Pape v Federal Commissioner of Taxation [2009] HCA 23; (2009) 238 CLR 1, 83 (Gummow, Crennan and Bell JJ); note also Williams v The Commonwealth (2012) 248 CLR 146, 245 (Hayne J)
^[206] South Australia v The Commonwealth (First Uniform Tax Case) [1942] HCA 14; (1942) 65 CLR 373
^[207] Victoria v The Commonwealth (Second Uniform Tax Case) [1957] HCA 54; (1957) 99 CLR 575
^[208] [1997] HCA 34; (1997) 189 CLR 465
^[209] Peterswald v Bartley [1904] HCA 21; (1904) 1 CLR 497 (Griffith CJ, Barton and O’Connor JJ)
^[210] Victoria v The Commonwealth (Federal Roads Case) [1926] HCA 48; (1926) 38 CLR 399; South Australia v The Commonwealth (First Uniform Tax Case) [1942] HCA 14; (1942) 65 CLR 373; Deputy Federal Commissioner of Taxation (NSW) v W R Moran Pty Ltd !1939) [1939] HCA 27; 61 CLR 735; Victoria v The Commonwealth (Second Uniform Tax Case) [1957] HCA 54; (1957) 99 CLR 575
^[211] Attorney-General for Victoria; Ex rel Black v The Commonwealth (1981) 146 CLR 556
^[212] P J Magennis Pty Ltd v The Commonwealth [1949] HCA 66; (1949) 80 CLR 382; ICM Agriculture Pty Ltd v The Commonwealth [2009] HCA 51; (2009) 240 CLR 140; Spencer v The Commonwealth [2010] HCA 28; (2009) 241 CLR 118; Williams v The Commonwealth [2012] HCA 23; (2012) 248 CLR 156, 235 (Gummow and Bell JJ)
^[213] Williams v The Commonwealth [2012] HCA 23; (2012) 248 CLR 156, 235-236 (Gummow and Bell JJ)
^[214] The equally sad fate of the Interstate Commission provides another example.