Topic 7: Engineers and Interpretation

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Topic 7Engineers and Interpretation
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Amalgamated Society of Engineers v Adelaide
Steamship Co Ltd (1920) 28 CLR 129

• What is the relevance of Engineers today?

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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

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(No Transcript)
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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.

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• 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)

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2. The Primacy of the Text

• Anchoring interpretation in the express words

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• 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

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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

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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?

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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

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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

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Identify the plain meaning of the express text
then

• lucet ipsa per se!

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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.

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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

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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

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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?)

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• 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)

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Literalism and Legalism
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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)
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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)
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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)
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• 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)

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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
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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