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[2] Though sovereignty in the constitutional sense remains an ideal
notion, it is one that perennially attracts the attention of governments,
judges
and significant sections of the public; particularly in times of social or
economic upheaval, but also in times of peace and
prosperity. The driving
sentiment behind sovereignty in the constitutional sense is the belief that
governments, particularly those
responsible to the electorate, must not be
restrained in the pursuit of the public good. It is the conviction that John
Stuart Mill
viewed with apprehension in his work On Liberty, that
‘the nation need not be protected against its own
will’.[2] It is an
idea that dominated the middle span of the 20th century. The ideal of
sovereignty stands in contrast to the classical republican
mistrust of absolute
power even in the hands of popular assemblies. Republicans believe that even
democracy must be tempered by constitutional
restraints if the public good is to
be advanced and private vice suppressed. Like sovereignty, the republican notion
of limited and
divided power is a compromised ideal. The desire for public goods
such as the provision of personal security, national defence, essential
infrastructure and social security generate demands for greater governmental
powers. Thus, the paradigms of sovereignty and of republican
limited government
are in constant tension in a game of constitutional ‘tug-of-war’.
[4] The Commonwealth arms of government are themselves limited in their powers. The Constitution imposes an incomplete but substantial division of powers among the judicial, executive and legislative branches. It disperses power territorially by the preservation of the States and the specification of the Commonwealth’s legislative powers. It imposes explicit limits on legislative power with respect to property takings, jury trials, inter-State trade, discrimination among States and state sponsorship of religion. Recently, the High Court of Australia (‘High Court’) has added a range of implied limitations on Commonwealth power derived from the liberal or republican orientation of the Constitution.
[5] It may seem, therefore, that the Commonwealth and State Constitutions contain in-built breaks against gravitation to sovereignty. However, constitutions in the living sense are not determined solely by texts. In the absence of transcendentally valid meanings, texts are but constructions of human minds and the barriers to sovereignty that the constitutional texts erect are only as strong as judges construe them to be. These constructions, in turn, are influenced by the judges’ own experiences, intellectual predilections and the ideological currents that run through political discourse. These comments are not meant as a criticism of judges, but as a reflection on the nature of their role, and an attempt to place in social context the constitutional fluctuations for which they bear formal responsibility.
[6] Constitutions tend to oscillate between
the sovereignty model and the republican model of limited powers without ever
reaching
either end. The High Court’s interpretation of the Constitution in its first
century of operation reflected this pattern. The jurisprudence of the early High
Court with its strong federalist agenda
of vertically separated powers was
displaced, in 1920, by the doctrine formulated in Amalgamated Society of
Engineers v Adelaide Steamship Co Ltd (‘Engineers’
Case’).[3] This
doctrine favoured the literal and expansive reading of Commonwealth legislative
powers subject only to express limitations found
in the constitutional text.
There was no place within this doctrinal model for implied limitations drawn
from the structure or basic
values of the Constitution. The
Engineers’ Case dominated the High Court’s treatment of the Constitution for much of
the century, before the doctrine began to unravel owing to its own
contradictions. That unravelling resulted in the heightened
commitment to
republican constitutionalism of the Mason and Brennan Courts in the last decade
of the century. In that period, the
High Court time and again departed from the
Engineers’ doctrine in order to defend the structure and basic
values of the
Constitution from intended and unintended consequences of executive
and legislative action. These judicial efforts generated a constitutional
model
that recognises limits on Commonwealth legislative powers drawn from not only
express provisions but also from implications
of the Constitution.
[8] The doctrine of implied governmental immunities prohibited the Commonwealth and the States imposing upon each others’ agents and instrumentalities burdens that fetter, control or interfere with the free exercise of legislative or executive power unless expressly authorised by the Constitution. The kernel of the doctrine of reserved powers was the proposition that where legislative power was not clearly granted to the Commonwealth, it belonged by necessary implication to the States. The reasoning of the reserved powers doctrine is typical of constitutional interpretation engaged in by courts having judicial review power. The reasoning does not negate clear words that derogate from a desired model of the Constitution. Rather, it brings into play wider policy and theoretical considerations, where words permit a construction that avoids violence to some basic value or structural feature of the Constitution. This much is apparent from Chief Justice Griffith’s exposition of the doctrine in Peterswald v Bartley, where he stated that a construction that allows the Commonwealth Parliament to interfere in the internal affairs of a State ‘will not be accepted by this court unless the plain words of provisions compel us to do so’.[4]
[9] The
twin federalist doctrines of the early Court combined with the implications of
the tripartite division of judicial, executive
and legislative powers and the
express limitations of the
Constitution yielded a model of limited powers approximating to the
classical republican ideal. However, in the Engineers’ Case, the
High Court rejected this approach in favour of a doctrine purportedly based in
strict legalism.
[12] Legislative powers conferred by a written constitution are limited in two ways. First, there are intrinsic limitations in the empowering language. For example, language that confers power to make laws with respect to inter-State trade does not confer power to make laws with respect to intra-State trade. If the latter power exists, its source is elsewhere in the Constitution. Second, there are extrinsic limitations on power. Even if the conventional meaning of language taken by itself confers power over a subject, that power may be curtailed by the force of other provisions of the Constitution. The Engineers’ doctrine weakened the extrinsic limitations by rejecting all but express limitations on empowering clauses. It also whittled away the intrinsic limitations.
[13] The intrinsic limitations on empowering clauses were
loosened by the Engineers’ doctrine with respect to: (i) nexus,
(ii) purpose and (iii) proportion. This policy, when strictly applied, produced
major accretions
of power to the Commonwealth. The Engineers’
doctrine, while eliminating implied limits on Commonwealth power, allowed the
Commonwealth to extend itself to matters over which
it has no express
constitutional authority. The literalism that the Engineers’
doctrine demanded led the High Court to uphold Commonwealth laws that covered
fields left to the States provided that such laws also
dealt with matters within
one or more heads of Commonwealth power. Laws often fall within more than one
subject and sometimes they
concern both subjects within and outside Commonwealth
jurisdiction. The fact that the law was mainly concerned with a subject denied
to the Commonwealth and that it had only a partial nexus to a Commonwealth power
was held not to be a ground of invalidity. As Stephen
J stated in Actors and
Announcers Equity Association v Fontana Films Pty Ltd, the position was that
[i]f a law enacted by the federal legislature can be fairly described both as a law with respect to grant of power to it and a law with respect to a matter or matters left to the States, that will suffice to support its validity as a law of the Commonwealth ...[7]
[15] The
Commonwealth’s legislative power under s 51(xxxv), with
respect to the conciliation and settlement of industrial disputes, encompasses
only those disputes that extend beyond the limits
of any one State. However, in
Huddart Parker Ltd v
Commonwealth,[9] the
Court used the Engineers’ doctrine to allow the Commonwealth to
regulate waterside employment generally by resort to its powers under s 51(i), with respect
to inter-State and overseas trade and commerce. From the literalist viewpoint,
the Court had no difficulty in construing
the labour law initiative as falling
within the subject of inter-State and overseas trade as waterside work
invariably impacted on
trade. Similarly, the Court used the
Engineers’ doctrine to allow the Commonwealth to promote
conservation goals,[10]
to control the investments of superannuation
funds,[11] and to
regulate intra-State
trade.[12] In all these
cases, the reach by the Commonwealth into what would otherwise be State
territory was not incidental but manifestly
purposeful. Yet, under the
Engineers’ doctrine, the Court regarded purpose as irrelevant to
the classification of the law. As Dixon J stated in Melbourne Corporation v
Commonwealth (‘Melbourne Corporation Case’):
That [the law] discloses another purpose and that purpose lies outside the area of federal power are considerations which will not in such a case suffice to invalidate the law ... [13]
How far they should go was a question of degree for the parliament to decide, and the fact that the parliament has chosen to go to great lengths – even the fact, if it be so, that for many persons difficulties are created which are out of all proportion to the advantage gained – affords no ground of constitutional attack.[14]
[18] It became clear that
the Engineers’ doctrine, when applied strictly, allows the
Commonwealth to reach almost any subject. Chief Justice Latham perceived this
danger
when he observed in Bank of New South Wales v Commonwealth
(‘Bank Nationalisation Case’):
If all laws passed by the Commonwealth Parliament imposing taxes of any kind were held to be valid, then the taxation power alone would enable the Commonwealth to pass laws upon any subject whatever by imposing a tax upon specified acts and omissions.[15]
A law which qualifies an existing statutory power to relax a prohibition is necessarily a law with respect to the subject of the prohibition ... even, indeed, if that other topic be not a subject of federal legislative power.[16]
[21] The
Engineers’ doctrine continued to be influential sporadically, even
in the later part of the 20th century, though it was already
unravelling
as a result of its internal contradictions. The 1975 case of
Attorney-General (Cth); Ex rel
McKinlay[21] provides
a good example. The High Court was invited to consider whether
Parliament’s capacity to take away adult suffrage or
to depart from the
‘one vote one value’ principle was limited by the requirements in
ss 7 and 24 that the Senate
and the House of Representatives be ‘directly chosen by the people’.
Only the equal vote value question
was directly before the Court, but all the
judges found the question concerning franchise sufficiently relevant to be
explicitly
addressed. The majority, comprising Barwick CJ and Gibbs, Stephen and
Mason JJ, found no such limitation in the words of ss 7 and 24 or in the
democratic structure of the Constitution. A major theme
in the majority’s reasoning was that in the absence of clear limiting
words, these were matters left to Parliament’s
discretion as in the case
of Britain’s sovereign Parliament. It was even suggested by two of the
Justices that Parliament could
deny suffrage on the grounds of gender, race or
lack of
property.[22]
unbelievable, having regard to the attention given to the States in the Constitution, that they were (with their parliaments, vice-regal representatives and express limitations on their powers) to be left as impotent government ornaments with plenty of glory and no power.[23]
[24] The
Engineers’ doctrine subjects the Commonwealth’s powers only
to the clearly expressed limitations set out in the Constitution. The reality is
that it is impossible in a constitution to set out in express terms all the
rules necessary to maintain the essential
features of the Constitution – such
as the federal arrangement, separation of powers, the representative principle,
responsible government, due process,
and free speech. Hence, it was inevitable
that the High Court would depart from the Engineers’ doctrine in
substance, if not in form, when faced with serious threats to the Constitution it has sworn
to uphold. The presently discussed landmark cases lead us to expect that when
the Constitution is
imperilled, the Court will read down empowering clauses by subordinating them
not only to express limitations but also to limitations
implied from the basic
features of the Constitution.
[26] In Queensland Electricity Commission v
Commonwealth,[26] the
High Court derived two prohibitions from the reasoning in the Melbourne
Corporation Case. Justice Mason articulated them as:
(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.[27]
[28] Some Justices of the High Court have been reluctant to formally concede the demise of the Engineers’ doctrine as an interpretive model. In Victoria v Commonwealth (‘Payroll Tax Case’), the decision that upheld the imposition of payroll tax on employers including State instrumentalities, Barwick CJ sought to explain the rule in the Melbourne Corporation Case not on the basis of federal implications but on the ground that the ‘topics of legislation allotted to the Commonwealth do not include the States themselves nor their governmental powers or functions as a subject matter of legislative power’.[29] This rationale was adopted by Windeyer and Rich JJ.[30] This is at best a spurious distinction. The Commonwealth’s taxation power, granted in s 51(ii), is expressly qualified only by the prohibition against discrimination ‘between States or parts of States’ (emphasis added). Subject to this qualification, the plain meaning of s 51(ii) allows the Commonwealth to select any person or entity for taxation. There is no argument, for example, that the Commonwealth may aim a special tax at high income earners though that category is not mentioned in any one of the topics of Commonwealth legislative power. The reason why States and their instrumentalities cannot be targeted for burdens is not because such objects fall outside the plain meaning of the empowering clauses, but because of implied limitations drawn from the structure, objectives and values of the Constitution. This much was made clear by Mason J in the Tasmanian Dams Case, when he rejected Chief Justice Barwick’s attempt to cast the rule in the Melbourne Corporation Case in terms of characterisation of subject matter.[31]
[29] An
important elucidation of the operation of the implied limitation doctrine
appears in the judgments in Re State Public Services Federation; Ex parte
Attorney-General (WA) (‘SPSF
Case’).[32] The
Justices rejected the suggestion that the determination of the scope of a power
specified in s
51 proceeded in two stages: the ascertainment of the true meaning of
the paragraph, followed by the inquiry as to whether an implied
limitation
curtails the power. Chief Justice Mason and Deane and Gaudron JJ stated that the
position rather is that
the scope of that provision must be ascertained by reference not only to its text but also to its subject matter and the entire context of the Constitution, including any implications to be derived from its general structure.[33]
[32] The
question before the Court was whether this extraordinary legislative derogation
from due process was authorised by the defence
power (s 51(vi)) or the power to
make law incidental to the maintenance of the Constitution and the laws
of the Commonwealth (s 51(xxxix) read with s 61). These powers
are themselves regarded as ‘purposive’ powers, or powers granted in
terms of the achievement of specified
purposes. In this case, the purpose was
patent. Yet, the Court determined that these measures were not authorised by the
powers in
s
51(vi) and (xxxix) during peacetime though they may be permissible in
times of actual war. The critical factor in this conclusion was the
impact of
the legislation on the rule of law, a notion that finds no express articulation
in the Constitution. In
other words, the Court truncated the scope of the defence power by reference to
ideas that the Engineers’ doctrine sought to eliminate from
judicial consideration. In his judgment, Dixon J emphasised the fact that the
rule of law is an
assumption upon which the Constitution has been
framed. Hence, a law which violates that assumption cannot be incidental to the
maintenance of the Constitution.[37]
The assumption was inarticulate and implied in the Constitution.
[37] The doctrine has no place in a constitution that reposes all
powers in a single authority. However, where legislative and executive
powers
are granted with respect to specified subjects, however loosely defined, the
doctrine immediately springs to life. If the
legislature is granted power to
make laws with respect to subject ‘X’, two questions
arise:
[39] The Constitution bestows legislative power on Parliament with respect to specified subjects. Some of these subjects are signified in terms of purposes to be achieved. They include: naval and military defence of the Commonwealth and the States (s 51(vi)); conciliation and arbitration for the prevention and settlement of industrial disputes extending beyond State limits (s 51(xxxv)); and matters incidental to the execution of powers vested in Parliament, the federal judicature and the government ( s 51(xxxix)).
[40] The relevance of proportionality is most evident in relation to the so-called purposive powers. If a law may be made for a particular purpose, it is always pertinent to ask whether an enacted law is reasonably appropriate and adapted to, and hence proportionate to, the achievement of the specified purpose. As the Communist Party Case demonstrated, the attempt to extend the Engineers’ doctrine to subjects defined in terms of purposeful activity, such as defence of the States and the Commonwealth (s 51(vi)) and the maintaining the Constitution (s 61), gives rise to intractable problems. How does the Court determine whether a given law is one with respect to defence? The words ‘defence of the Commonwealth and of the several States’ are in themselves plain enough. However, beyond the core measures such as the establishment and maintenance of defence forces, the question whether a law is concerned with defence becomes increasingly subjective and incapable of resolution by reference to some notion of the plain meaning of text, as prescribed by the Engineers’ doctrine. While we may conceivably agree on some abstract definition of defence, the question of what constitutes defence beyond actual military action in the face of aggression will often be controversial. This difficulty is reflected in the High Court’s elastic view of the defence power that varies depending on whether the nation is in a state of peace, uneasy peace, actual war or transition from war to peace.
[41] In war time, the Court has permitted the Commonwealth to
engage in food rationing and price controlling, labour regulation, alteration
of
private contractual arrangements and other measures that, in the opinion of the
executive, ‘conduce to the successful prosecution
of the
war’.[45] In
peacetime, the defence power authorises laws needed to maintain the armed
forces, fortifications, supporting infrastructure and
supplies, the conduct of
courts martial and conscription. In periods of transition from war to peacetime,
the Court would allow war
time controls to remain in place for a reasonable time
and will permit transitional laws such as those giving hiring preference to
returned service personnel. In cases where the defence objective is not patent,
the Court has been willing to look for textual as
well as extrinsic evidence
concerning attendant circumstances in order to determine whether the law is one
with respect to defence.
The elasticity of the categories signified by s 51(vi) and 51(xxxix)
demonstrates the relative disutility of the Engineers’ doctrine to
the interpretation of powers defined in terms of purposes.
Implicit in the requirement that a law be capable of being reasonably considered to be appropriate and adapted to achieving what is said to provided it with the character of a law with respect to external affairs is a need for there to be a reasonable proportionality between the designated purpose or object and the means which the law embodies for achieving or procuring it.[46]
[44] The requirement of
adaptation refers to the degree of curtailment. In Davis v Commonwealth
(‘Davis’),[47]
the High Court considered the provisions of ss 22 and 23 of the Australian Bicentennial
Authority Act 1980 (Cth), which sought to prevent private
commercial exploitation of the Bicentenary by prohibiting the use of any symbol
or logo that carried
the words ‘Bicentenary’,
‘Bicentennial’, ‘Sydney’, ‘Melbourne’,
‘First Settlement’
or ‘200 years’. The Court found that
s 51(xxxix) authorised the
Act setting up the Authority, but ruled that the prohibition
in s 22 of the Act was excessive
in its effect. Davis is particularly interesting as it was decided before
the High Court formally declared the existence of an implied constitutional
freedom of communication. Had the case arisen after the Industrial Relations
Commission Case and the Electoral Advertising Bans Case, the question
before the Court may have been whether the restriction of the freedom of
communication was reasonably adapted to the
legitimate object of celebrating
Australia’s nationhood and the outcome almost certainly would have been
the same. What is
clear from Davis, the Industrial Relations
Commission Case and the Electoral Advertising Bans Case is that in
the eyes of the High Court, the requirement of proportionality becomes more
stringent when the core values of the Constitution are at stake, and that
freedom of communication is one such value.
[46] The second theoretical error of the doctrine lay in its false assumption that the text of the Constitution is grounded in transcendental reality such that its true meaning can always be ascertained through a value free process of judicial inquiry. This attitude contributed significantly to the Court’s refusal to consider purpose and proportionality in determining whether laws were constitutionally authorised by express words. It is not suggested that words have no commonly accepted meanings. Without such conventional understanding of language, law is impossible. However, beyond such conventionally established core meanings, words cast penumbrae of uncertainty that are resolved through acts of construction by relevant epistemic authorities; in this case, judges. Thus, while terms such as ‘external affairs’, ‘defence’ and ‘trade’ have core socially constructed meanings, they also have penumbrae where meanings are constructed by positive judicial action rather than ‘found’ through passive inquiry. In this domain, literalism of the kind postulated in the Engineers’ Case becomes an objective disguise for what is in effect value laden judicial constructivism. In the heyday of the Engineers’ doctrine, judges refused to consider the question of proportionality on the basis that all that was constitutionally relevant was whether or not the law was connected to the authorised subject. The idea was that whereas ‘connection’ could be objectively determined, the assessment of ‘proportionality’ involved a political judgment that constitutionally resided in Parliament. The distinction between ‘connection’ and ‘proportionality’ was always problematic in theory. More seriously, the distinction allowed the Court to clothe its rulings with the guise of objectivity that they did not deserve. The High Court’s acceptance of the relevance of proportionality exposes to contest issues that were foreclosed by the Engineers’ doctrine and makes the Court’s rulings more informed and transparent.
[47] The rollback of the Engineers’ doctrine was inevitable given the fundamental features of the Constitution, namely: separation of powers, the representative principle, the rule of law and the federal structure. Its eclipse represents a significant retreat from the sovereignty model to the republican model.
[48] The great question for constitutional theorists is whether the pendulum will swing the way of sovereignty in the future. Neither the constitutional text nor its current interpretations provide any assurance against such a movement. As we have seen, texts have no transcendentally true meanings, but only meanings that human minds and actions allow them. The history of the federation shows that the same text may yield very different constitutional outcomes in different epochs. All that can be said from the theoretical perspective is that the High Court can return to the Engineers’ sovereignty model only at the expense of key underpinnings of constitutional government. Whether it will do so depends on the pressures of unfolding history.
[49] The High Court, as part of the political system, cannot be insulated from external pressures. Though courts can and indeed should resist momentary majoritarian pressures, they cannot deviate from strong and widespread shifts in public perceptions concerning law and the Constitution without seriously damaging its own authority. It is by no means inconceivable that some new orthodoxy of centralism and unrestrained power may emerge from the political arena. Constitutional texts have no magical properties and the shape of the living Constitution depends ultimately on the complex web of political, cultural and even economic constraints. However, given the internal contradictions of the sovereignty model of democracy and its own resilience, the republican model may be expected to endure in the foreseeable future in the absence of catastrophic shock.
[50] There is indeed some scope for further movement to the republican
ideal in the form of greater recognition and entrenchment of
basic rights, the
eclipse of the hereditary monarchy, improvements in substantive and procedural
due process and even a more thoroughgoing
separation of powers based on a
directly elected executive. However, the real and perceived threats such as
those posed by the terrorist
attacks in the United States on 11 September 2001
and by the penetration of Australia’s territorial waters by asylum seekers
transported by organised people smugglers are likely to stymie further movement
towards the republicanisation of the Constitution, at least in the
short term.
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