(ii) The doctrine of intergovernmental immunities - federalism as a basis for implying law into the Constitution
This doctrine was directed to the specific problem of the power of the Commonwealth to burden or hamper the States and the power of the States to burden or hamper the Commonwealth. The doctrine held that neither could bind the other. Each was sovereign and could not therefore be subject to the other. This mutual immunity was seen to
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be necessarily implied in the Constitution. As a result of this doctrine States could not tax the remuneration received by a federal officer^ and the relations between State railways and their
employees were held to be beyond the Commonwealth power in s 51(xxxv).^
1 (1908) 6 CLR 41 per Griffith CJ, Barton and O'Connor JJ; Isaacs and Higgins JJ dissenting.
2 (1911) 12 CLR 321 per Griffith CJ, Barton, O'Connor, Isaacs and Higgins JJ unanimously.
3 The Railway Servants Case (1906) 4 CLR 488, 538.
4 D 'Emden v Pedder (1904) 1 CLR 91. Deakin v Webb (1904) 1 CLR 585; Baxter v Commissioner of Taxation (1907) 4 CLR 1087.
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The doctrine was qualified by the proposition that the implication of State immunity from Commonwealth legislation (based as it was on the necessity for the continued sovereign existence of the States) could be offset if it was necessary for the effective exercise of any of the express Commonwealth powers (which defined Commonwealth
sovereignty) that the States be bound. Thus, when it was considered necessary for the effectuation of the Commonwealth’s power to impose customs duties (whether derived from the express power in s51(i) or
the express power in s51 (ii)) that the States be bound like other importers, the implication of State immunity from Commonwealth action was pro tanto rebutted.^
B - The Engineers Case - the rejection of federalism as a basis for constitutional interpretation
The specific issue in Amalgamated Society of Engineers v The Adelaide Steamship Co Ltd was whether the Commonwealth could, in giving effect to the settlement of an industrial dispute otherwise within its power in s51 (xxxv), bind a State government in its industrial relations with its employees. It was held that the Commonwealth could so bind a State. In the course of explaining its decision the Court repudiated the reasoning and propositions on which both the doctrine of intergovernmental immunities and the doctrine of reserved powers had been based.
Four members of the majority in this 1920 Court, Knox CJ,Isaacs, Rich and Starke JJ gave a joint judgment. Central to their framework was the proposition that there is one indivisible Crown.^ There was, therefore, no justification for any reasoning, doctrine or
1 The Steel Rails Case (1908) 5 CLR 818. 2 (1920) 28 CLR 129.
3 Per Knox CJ, Isaacs, Higgins, Rich and Starke JJ, Gavan Duffy J dissenting.
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implication based on a perceived necessity to protect the independent sovereignty of the States from the Commonwealth (or vice versa). The one sovereign, the Imperial Crown had assented to be bound by laws made under the Commonwealth Constitution which had been established by the Imperial Parliament to fulfil the agreement of the people of the colonies to join in a Commonwealth.^ Therefore the extent to which the Crown in right of a State was bound by Commonwealth laws depended solely on construing the Commonwealth Constitution to see what
authority it gave to bind the Crown. Since the Commonwealth
Constitution dealt expressly with sovereign legislative, executive and judicial functions of the Crown, it would not have been difficult to conclude that it was intended that the Crown be bound by the
Constitution and by laws made under its authority. That conclusion
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was put beyond doubt by the presence of covering clause V.
Without adverting to the possibility of a distinction being found in the absence from State Constitutions of any provision like the
Commonwealth coveting clause V, their Honours also concluded that the Commonwealth could be bound by State laws. Any conflict of laws was to be resolved by recourse to sl09.^
The extent of particular Commonwealth heads of power (and,
therefore, the extent of Commonwealth power to bind the States) was to be ascertained by construing the heads of power according to ordinary principles of construction.^ It was not a proper function for a Court to take to itself the power to veto government action by reference to vague political theories and the erection of arbitrary
1 Id. 152. 2 Id. 152-153.
3 "This Act, and all laws made by the Parliament of the Commonwealth under the Constitution shall be binding on the courts, judges, and people of every State and of every part of the Commonwealth,
notwithstanding anything in the laws of any State; ..." 4 Id. 155.
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unpredictable implications. The possibility of abuse of power was a matter between government and the electors.^ If the text were
explicit the Court could not add to it or subtract from it by making
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implications.
There was, as a matter of construction, no contradiction involved in s51 intruding into areas of State power continued by sl07. There was no logical imperative that Commonwealth and State power be
mutually exclusive. State powers were general and were therefore concurrent with most of the Commonwealth’s express powers. Conflict through action in overlapping areas of competence was to be resolved by recourse to sl09.
Thus, after the Engineers Case it appeared that the High Court had abandoned the doctrine of intergovernmental immunities and had
abandoned so much of the reserved powers doctrine as went to subject matter definition. In relation to the branch of the reserved powers doctrine going to characterisation of a law as being with respect to a (defined) Commonwealth subject matter, the Engineers Case was,
however, inconclusive.
I turn now to outline the experience after the Engineers Case, and Barwick's part in the exploration of the principles relating to the
three issues - definition of subject matters of Commonwealth power, characterisation of laws as being with respect to (defined) subject matters and intergovernmental conflict.
1 Id. 145, 150-152. 2 Id. 149-150.
3 Id. 153-155 Cf the judgment of Dodds CJ in D 'Emden v Pedder (1903) 2 Tas LR 146, 168ff.
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C - Definition of Subject Matters of Commonwealth Power after the Engineers Case
(i) Definition of Subject Matters - General Principles
It was established early in the High Court’s life that when defining terms used in the Constitution, it is the meaning of the terms as at the date of enactment, 1900, which must be ascertained.'*'
It was also early established that although the 1900 meaning remained fixed, new developments not existing and perhaps unforeseen in 1900
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might be encompassed by a 1900 definition. These propositions were unaffected by the Engineers Case and are now entrenched. It is now customary to talk of the fixed meaning as the connotation in
distinction from the denotation which means the things from time to time falling within the connotation. Barwick CJ accepted these propositions
In its nature, the problem of definition cannot be reduced to predictable mechanical rules. There has been no return to the pre- Engineers reserved powers doctrine of construing s51 powers to as to avoid "contradiction” with sl07. Members of the High Court have simply set about finding the "natural meaning" of the words used. Thus, for example, when asked to construe "like services" in placitum
(v) "Postal, telegraphic, telephonic, and other like services" the members of the High Court gave the phrase what they perceived to be
its natural meaning without feeling any compulsion to choose a
1 Union Label Case (1908) 6 CLR 469, 501 per Griffith CJ. 2 Ibid.
3 Professional Engineers Case (1959) 107 CLR 208, 267 per Windeyer J.
4 Eg. King v Jones (1972) 128 CLR 221, 229. R v Federal Court of Australia; exp Western Australian National Football League (1979)
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reasonable but narrower meaning which would have encroached less on intra-State trade.^ When considering a problem of subject matter definition in the St George County Council Case, Barwick CJ commented:
"The reserved powers doctrine of the past has been fully exploded; but care needs to be taken that it does not still in some form or another infiltrate on e ’s reasoning when construing Commonwealth powers or Acts of the Parliament."^
The reserved powers doctrine drew significance from what had been omitted from grants of power to the Commonwealth and, thus, reserved to the States. Another argument which would limit the content of one power by reference to the presence of others, draws significance from what has been included in the other powers. The argument is that the presence of specific powers should prevent a generally expressed power being given a broad meaning (albeit a meaning otherwise available) if to do so would render the specific powers superfluous.
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