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Topic 7: Engineers and Interpretation

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Title: Topic 7: Engineers and Interpretation


1
Topic 7Engineers and Interpretation
2
Amalgamated Society of Engineers v Adelaide
Steamship Co Ltd (1920) 28 CLR 129
  • What is the relevance of Engineers today?

3
Headings in the Course Guide
  • 7.1 The Engineers case
  • Refers to the Casebook extract and notes
  • Slides 5-16 below deal with the joint judgment
  • 7.2 Reactions to Engineers
  • Refers to the views of RTE Latham and Windeyer J
    see slides 17-18 below
  • 7.3 Literalism and legalism

4
(No Transcript)
5
1. Facts and introduction
  • The application of Commonwealth industrial law to
    the States.
  • Adelaide Steamship was just one of many employers
    subject to a log of claims.

6
  • The immediate issue was whether Commonwealth
    industrial law could constitutionally apply to
    State trading instrumentalities
  • By majority it was held that the States were
    subject to Commonwealth legislation, including
    industrial legislation enacted under Constitution
    s 51(xxxv)

7
2. The Primacy of the Text
  • Anchoring interpretation in the express words

8
  • The court reviewed interpretive method
  • The ruling idea is the primacy of the express
    text
  • Some reservations were made about State
    prerogatives and special Commonwealth powers eg
    taxation (on this point see Casebook 957)
  • The reservations eventually became subsumed
    within some general intergovernmental immunity
    rules

9
3. DEmden v Pedder examined
  • DEmden v Pedder (1904) 1 CLR 91 was the
    foundation case for the original
    intergovernmental immunities doctrine. Engineers
    attacks the reasoning in DEmden, but
    rationalises the conclusion
  • A later case that applied DEmden is attacked as
    resting on opinions as to hopes and expectations
    respecting vague external conditions

10
4. Responsible government
  • How much of the architecture of the Australian
    Constitution is based on the United States
    Constitution?
  • Does the doctrine of responsible government and
    the supposed indivisibility of the Crown support
    what Engineers says about the value of American
    precedents?

11
5. Plain meaning rule
  • Engineers fails to acknowledge that the plain
    meaning rule was endorsed in Tasmania v
    Commonwealth (1904) 1 CLR 329, the year in which
    DEmden v Pedder was decided.
  • Engineers is associated with a more sophisticated
    version of literalism than the version actually
    spelt out in the case

12
6. Political necessity?
  • The original immunities doctrine was justified as
    an implication based on political necessity.
    Engineers says reliance on political necessity is
    indefensible
  • It is argued that courts should not limit
    legislative authority merely because it is feared
    that power will be abused

13
Identify the plain meaning of the express text
then
  • lucet ipsa per se!

14
7. Reserved powers doctrine disapproved
  • Engineers is surprisingly brief on the point on
    which the authority of the case has never been
    doubted
  • Our understanding of the case on this point
    depends on reading it together with earlier
    judgments by Isaacs J. The ideas have also been
    explained very clearly in many later judgments.

15
8. Paramountcy of Commonwealth law
  • These passages foreshadow the later expansion of
    inconsistency doctrine in Clyde Engineering Co v
    Cowburn (1926) 37 CLR 466
  • The language of the DEmden v Pedder
    non-interference principle lives on in the second
    (rights impairment) test of inconsistency

16
9. Summary
  • The debris of dicta has been cleared and the
    Constitution is speaking with its own voice -
    providing one can understand the translation
    Engineers puts forward!
  • Sawer on Engineers Isaacs was given to rhetoric
    and repetition, and here he gave these habits
    full rein

17
Reactions to Engineers
  • RTE Latham The fundamental criticism of the
    decision is that its real ground is nowhere
    stated in the majority judgment.(Casebook 307)
  • (Is this correct? Is such an assertion open to
    proof or disproof?)

18
  • Windeyer J in the Payroll Tax case (1971) 122 CLR
    353 argues that the results in Engineers should
    not be regarded as correcting antecedent errors
    or as uprooting heresy. But he goes on to say
    to return today to the discarded theory would
    indeed be an error and the adoption of a heresy.
    (Casebook 306)

19
Literalism and Legalism
20
The only true guide and the only course which
can produce stability in constitutional law is to
read the language of the Constitution itself
and to find its meaning by legal reasoning
(Barwick CJ in Ex rel McKinley (1975) 135 CLR 1,
17 Casebook 425)
21
I respectfully agree with Sir Owen Dixons
opinion that there is no other safe guide to
judicial decisions in great conflicts than a
strict and complete legalism(Barwick CJ in
McKinley)
22
Gleeson CJ on Dixon CJ and legalism It is
sometimes overlooked that what he said, in its
context, contained a challenge. He asked, in
effect what is the competing view? If the High
Court is not to resolve federal conflicts by a
legalistic method, what other method is it to
employ? (The Rule of Law and the
Constitution(2000), 134)
23
  • our task is purely legal (Rich J in ANA (1945
    (71 CLR 29, 70 Casebook 655))
  • it is a legal question (Kitto J in Airlines of
    NSW (1965) 113 CLR 54, 115 Casebook 676)
  • They are strictly legal questions (statement of
    the court in Tasmanian Dam (1983) 158 CLR 1, 58)

24
Legalism An approach to the analysis of legal
questions characterised by abstract logical
reasoning focussing on the applicable legal text,
such as a constitution, legislation or case law,
rather than on the social, economic, or political
context.Butterworths Concise Australian Legal
Dictionary
25
It is helpful to think of legalism in terms of
three related ideas on a spectrum
  • Adherence to the text (literalism/
    textualism)
  • Adherence to precedent
  • Preference for rule-based formalism versus a
    broad, sociological approach that takes account
    of many factors
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