High Court Interpretation

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High Court Interpretation

• Effect on the Federal Balance of Power

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What is the High Court?

• The High Court is established under s 71-80 of
  the Constitution
• It was established as a Constitutional Court to
  be the final arbiter in matters of the
  Constitution

3
Federal Balance of Power

• In any federation there is a division of power
  between two levels of government. The ratio of
  powers between these levels is termed the Federal
  Balance
• The Federal Balance is not static it changes
  with changes in the Constitution

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Alterations of the Federal Balance

• Any mechanism for changing the Constitution may
  impact the Federal Balance. Therefore
• Referenda
• Referral of powers
• Unchallenged legislation
• Conventions and Commissions
• High Court Interpretation
• may all affect the Federal Balance

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Alterations to the Federal Balance

• As we know, most methods of constitutional change
  in Australia are very limited in their impact on
  the Constitution except one.
• The interpretations of the Constitution by the
  High Court of Australia
• Therefore, the High Court has had more impact on
  the Federal Balance than any other mechanism

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How Does the High Court Interpret the
Constitution?

• Judicial interpretation is an art and a science
• When asked to clarify the meaning of a statute
  (or a Constitution) judges apply various styles
  of judicial interpretation
• The style used depends the judges discretion

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Judicial Interpretation in Phase 1

• Intentionalism A style of interpretation in
  which the judges seek the original intention of
  the Constitution.
• In Australias case the Constitution was intended
  to set up a cooperative federation in which the
  states retained most of their powers even
  thought the way the Constitution is written
  doesnt seem to reflect this

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Intentionalism

• In order to achieve the intention of the
  Constitution the judges were forced to find
  implications in the Constitution that are not
  expressly mentioned
• In this they used US Supreme Court persuasive
  precedent in Collector v Day (US) in DEmden v
  Pedder 1903 to create implied immunities (the
  states immune from Commonwealth power)
• In Peterwalds Case 1904 the Court found implied
  prohibitions (against the Commonwealth expanding
  its power in areas of state power)

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Intentionalism

• These cases created the
• doctrine of implied immunity of instrumentalities
• (instrumentalities are government functions such
  as railways, power, roads etc)
• And the
• doctrine of reserve powers
• The most famous case from the Intentionalist
  Phase is Railway Servants 1906.

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Intentionalism - Doctrines Explained

• doctrine of implied immunity of instrumentalities
• Because it is federalist, the Constitution
  contains implications that state powers should be
  preserved. Thus - the states are immune from
  commonwealth interference and the commonwealth is
  prohibited from interfering with states.
• doctrine of reserve powers
• When interpreting concurrent powers, do so in a
  narrow sense that preserves the power of the
  states and limits the power of the commonwealth
  to legislate in areas of shared powers.

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Railway Servants 1906 implied immunities of
instrumentalities

• A dispute between the WA Government and the
  Commonwealth about the right of the Commonwealth
  to legislate working conditions for workers
  employed by the WA government
• The Court, applying the doctrine of implied
  immunities of instrumentalities, found that
  Commonwealth industrial laws passed under s 51
  (xxxv) could not apply to State Government
  railway employees (a state instrumentality)

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Peterswalds Case doctrine of reserve powers

• Section 90 makes excise an exclusive commonwealth
  tax.
• Griffiths CJ held that a NSW tax imposed on
  brewers was not an excise by defining excise
  very narrowly reserving the taxing power for
  the states
• This made it less likely that a state tax could
  be defined as an excise and therefore invalid.

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Judicial Interpretation in Phase 2

• Literalism/ legalism A style of interpretation
  in which the court regards the actual wording to
  be most important. A black letter of the law
  style
• Read this way, the Constitution grants a great
  deal of power to the Commonwealth at the expense
  of the states. In particular s 51 concurrent
  powers and s 109, which gives priority to
  Commonwealth law. The financial powers of the
  Commonwealth are great

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Literalism / Legalism

• By 1920 none of the Justices of the Court were
  involved in the drafting of the Constitution.
  They felt that they could not know its intention
  and so sought a SAFER method.
• They began to treat the Constitution as if it
  were an ordinary statute

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Engineers Case 1920

• This case opened the second phase of High Court
  constitutional interpretation and remains the
  most significant landmark case in the Courts
  history
• The Amalgamated Society of Engineers (a union)
  was involved in a dispute with a sawmilling
  factory owned by the WA Govt.

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Engineers Case 1920

• The Commonwealth sought to legislate for the
  union because it felt it had the power to
  legislate for state based businesses when a
  dispute crossed state borders (the Society of
  Engineers was a national union)
• The High Court agreed giving a much broader
  interpretation to Commonwealth industrial powers
• This decision reversed the precedents of the
  Railway Servants Case the doctrine of implied
  immunities of instrumentalities

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Other implications of legalism

• A legalistic interpretation of s 51 concurrent
  powers leads to broad interpretations of shared
  powers. The commonwealth covers the field of
  concurrent powers.
• The doctrine of reserved powers was overturned.
• A literalist interpretation of the grants power
  under s 96 allowing the Commonwealth to attach
  any condition to monies granted to the states
• A serious diminishing of the concept of residual
  powers which, being unspecified, cannot be
  interpreted literally

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Uniform Tax Case 1942

• During WW2 the Commonwealth passed four acts,
  under
• s 51(ii) (the tax power), which had the effect of
  taking control of income tax for the duration of
  the war
• They did not outlaw state income tax but the
  Commonwealth decided that if a state collected
  income tax its s 96 Commonwealth grant money
  would be reduced by that amount. Further, the
  citizens of the state would be paying both state
  and federal income tax and would likely vote the
  state government out. This made it impossible
  for the states to collect the tax

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Uniform Tax Case 1942

• The States challenged the four acts in the High
  Court. The Court found that three of the acts
  could continue in peacetime ie forevermore
• This case marks the point at which the VFI began
  to tip very much towards the Commonwealth

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Judicial Interpretation in Phase 3

• The Court continued the legalist / literalist
  method of interpretation during this phase.
• This phase is not marked by a change of judicial
  style but by the effect of the Courts decisions
  on the federal balance. This effect was neutral

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Phase 3 In Favour of the States

• State Banking Case 1947 Stuck down Commonwealth
  legislation that forced the states to bank with
  the Commonwealth Bank on the grounds that it
  discriminated against the states
• Bank Nationalisation Case 1948 Struck down the
  ALP Governments attempt to nationalise all banks
  on the grounds that it prevented freedom of
  interstate trade (this was highly controversial
  as nationalisation was ALP policy)
• Communist Party Case 1951 Struck down the
  Menzies Government attempt to ban the Communist
  Party (also highly controversial)

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Phase 3 In Favour of the Commonwealth

• Concrete Pipes Case 1971 Accepted the right of
  the Commonwealth to legislate on the inter-state
  activities of corporations under the Corporations
  Power in s 51(xx) and led to the Trade Practices
  Act 1974 a powerful piece of legislation
• Uniform Tax Case 1957 upheld the 1942 decision

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Judicial Interpretation in Phase 4

• Activism / Realism A style of interpretation in
  which the Court tries to consider the law in the
  presence of a wider social context
• Activism is intended to make the High Court's
  decisions more transparent and honest by
  rejecting purely legalistic interpretations and
  considering the views of the community at large
• It is controversial because some see it as the
  Court acting in a legislative way instead of a
  purely judicial way and therefore a breach of the
  separation of powers. Judges are unelected and
  not directly accountable to the people

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The External Affairs Power

• In recent times, as Australia has signed more
  treaties and agreements with overseas governments
  and organisations the External Affairs Power in s
  51 (xxix) has become more important
• This power allows the Commonwealth to sign a
  treaty, ratify it by passing it through the
  Commonwealth Parliament and thus making it law in
  Australia. S 109 then allows this law to
  override state law
• Thus s 51 (xxix) and s 109 together allow the
  Commonwealth to become involved in areas of state
  responsibility

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External Affairs Cases

• Koowarta 1982 overruled a QLD Govt decision to
  prevent aborigines from purchasing a lease on
  land because it contravened the Racial
  Discrimination Act 1975
• This Act was passed to give effect to an
  international agreement to eliminate all forms of
  racial discrimination (UN Convention on Human
  Rights)

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External Affairs Cases

• Tasmanian Dams 1983 used the Koowarta precedent
  to prevent the Tasmanian Govt from damming the
  Gordon-below-Franklin River.
• The Commonwealth signed the International
  Convention for the Protection of the Worlds
  Cultural Natural Heritage
• Then passed the World Heritage Properties
  Conservation Act 1983.
• It then listed the Gordon-below-Franklin River as
  a World Heritage Area under the Act making it
  unlawful for Tasmania to dam the river

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Other Phase 4 Landmarks

• Mabo 1992 Eddie Mabo, a Torres Strait Islander,
  challenged the QLD Governments rights over his
  home island claiming that a form of native
  title existed at the time of European settlement
  and had never been extinguished. The Court
  agreed, overturning a centuries old legal
  doctrine - terra nullius. Native Title may
  exist all across unsettled parts of Australia

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Phase 4 Landmarks contd

• Mabo contd
• Land management is a residual power but the
  Constitution gives the Commonwealth exclusive
  power over Aboriginal Affairs thus Native Title
  reduces state powers over land this is the most
  controversial case in recent times, creating
  doubts about private land ownership in Australia.
  This was clarified by the Native Title Act 1993
• Hammond Case 1997 Franchise fees classed as
  excise

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Phase 4 Landmarks contd

• Cole v Whitfield 1988 State laws which
  discriminate against interstate trade in a
  protectionist manner are unconstitutional.
• A Tasmanian company was not allowed to import
  smaller SA crayfish because the Tasmanian Govt
  had restricted the size of crayfish that could be
  sold to protect Tasmanian crayfish stocks (this
  is not protectionist in the economic sense).
  This reduced the protection of free trade between
  the states

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Phase 4 Landmarks contd

• There are many other landmark cases from Phase 4
  that extend individual citizens rights but these
  do not affect the federal balance.. Examples
• Dietrich 1992 legal representation
• Australian Capital Television Case 1992 freedom
  of speech
• Theophanous 1994 freedom of speech

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How to Answer the Essay

• The essay asks you to ASSESS the impact of the
  High Court on the Federal Balance
• What is the Federal Balance? This needs to be
  addressed. Some outline of federalism, division
  of powers and the changing balance of these
  powers is necessary
• You MUST conclude that the Courts impact has
  been very significant given the extension of
  Commonwealth power since 1920
• Styles of judicial interpretation are fundamental
  to understanding the way the Court has altered
  the Federal Balance. There needs to be some
  discussion of the styles

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How to Answer the Essay

• The case details are examples that you use to
  argue that the Courts role has been significant
• A brief discussion of the High Courts role in
  Constitutional change given the ineffectiveness
  of the other mechanisms, might be useful
• Accurate quotation of case details, relevant
  sections of the Constitution where appropriate,
  and knowledge of key issues such the method of
  allocating powers, the VFI, Commonwealth grants
  powers, external affairs powers etc etc is needed