Chapter Nine: A History of High Court Constitutional Interpretation Flashcards
Doctrine of reserved powers
An approach to constitutional law used in the early history of the High Court. It protects the states in section 51 concurrent powers by interpreting them as narrowly as possible so they may not infringe upon the state residual powers. It also extends to section 109, interpreting inconsistency in law in a minimalist way.
Doctrine of implied immunities of Instrumentalities
An approach to constitutional law adopted by the High Court in the early years of the federation. It theorises that while the Constitution does not literally create a federal compact, there is an implication that the powers of the states should not be infringed upon by the Commonwealth, therefore the High Court should reflect this principle.
How did the High Court operate in the first years of the federation?
In the early years of the federation, the High Court sort to preserve the powers of the state through maintaining a coordinate or cooperative federalism balance. Despite this, the constitution did not reflect this wish, therefore the High Court Justices had to create new guidelines of interpretation that would reflect this ideal of theirs. They thus created and adopted the Doctrine of reserved powers and the doctrine of Implied Immunities of Instrumentalities.
Give an example of a case that defended state power in the early years of the federation
The railway servants case of 1906 is an example of a case that defended the power of the states. The Commonwealth was seeking to legislate in regard to the working conditions of WA workers who were employed by the WA government. The High Court, applying the doctrines of reserved powers and implied immunities of instrumentalities decided that the Commonwealth industrial laws passed under section 51 (xxxv) could not apply to state railway government employees.
How is the constitution inherently disadvantaging to the states?
The state powers designated in the constitution are not enumerated, they are not listed and therefore they are non-justiciable. This means that the High Court cannot interpret residual powers, so it is inherently harder for the High Court to protect the autonomy of the states without using the doctrine of reserved powers and the doctrine of implied immunities of instrumentalities.
What is the significance of the Engineers case?
The engineers case of 1920 eroded state powers and can be seen as a transition from the original phase of the High Court in protecting the autonomy of the states. The Commonwealth sort to legislate in respect to workers in a sawmilling factory owned by the WA government. The workers were part of a national union, therefore the Commonwealth believed that they had power under section 51 (xxxv) to legislate in this area. The High Court agreed, broadening the interpretation of the section 51 (xxxv) power and undermining the previous doctrines used by the High Court and acting as precedence for further cases.
What is the significance of the uniform tax case of 1942?
Section 51 (ii) gives the Commonwealth the power of taxation, however before the Second World War the states still raised and spent income tax. In 1942, the Commonwealth introduced a number of acts into Parliament which raised a national income tax and forced the national income tax to be paid before any state taxes in order to fund the war effort. The states challenged this legislation in the High Court, but the High Court ruled that in times of war the defence power of the Commonwealth increased and they therefore had a right to take over the collection of income tax. After the war, the states challenged the continuing income tax in 1957 but the High Court ruled in the Commonwealths favour again, saying that section 51 (ii) section 96 and section 109 allowed the Commonwealth to raise its own income tax. This meant that the states were effectively made unable to pose an income tax, which contributed to the growing vertical fiscal imbalance and made states rely on section 96 grants more frequently. Income tax was after all 57% of the tax collected in Australia from 2013-2014.
Explain the changing nature of section 109
Early in the years of the federation, the High Court interpreted section 109 very narrowly, restricting the impact of the section to only small inconsistencies and protecting state laws to the maximum extent possible. Later, a broader interpretation of the section allowed the Commonwealth to completely override state law. The High Court decided that if the Commonwealth included in a piece of legislation that this should be the only legislation in that area, then any state law in that area will be overridden with Commonwealth law. This overturned the doctrine of reserved powers established previously. By the case Ex Parte McLean in 1930, section 109 had emerged as a powerful mechanism enhancing state power.
What is the significance of section 96?
Section 96 allows the Commonwealth to give tied grants to the states, a significant power that the Commonwealth can use to influence the state residual powers. Owing to an increase in vertical fiscal imbalance, the state have become more reliant on grants from the Commonwealth, and if the Commonwealth can tie whatever conditions it wants to these grants. The High Court can do very little to check the power of the Commonwealth in this case, the residual powers are non-justiciable therefore it is immensely difficult to the protect the states if the Commonwealth is indirectly infringing on state residual powers.
Give examples of post-world war 2 cases that limited Commonwealth Power
- State Banking Case 1947, in this case the High Court struck down Commonwealth legislation that attempted to force the state to bank with the Commonwealth bank on the grounds that it discriminated against the states.
- Bank Nationalization Case 1948, in this case the ALP government attempted to nationalise all banks on the ground that it prevented interstate trade under section 92 was declared unconstitutional by the High Court.
Explain how the external affairs power has become more significant in modern Australia
Historically, Australia had been tied diplomatically with the UK which limited its influence on the international scale, but in more modern times Australia has grown more internationally active with other countries and within international organizations. The external affairs power in section 51 (xxix) allows the Commonwealth to sign an International treaty, ratify it in the Parliament and then with section 109 make it national law that will override any conflicting state law. This allows for the Commonwealth to potentially intrude on certain residual powers.
Give examples of cases that have involved the use of the external affairs power
Koowarta 1982, is a case that involved the Queensland government trying to stop an Aboriginal man from buying a piece of land because he was Aboriginal. This conflicted with the national Racial Discrimination Act 1975 which was passed to ratify a treaty on UN universal human rights, thus the High Court ruled in favour of the Commonwealth legislation and Queensland lost the right to discriminate against someone due to race.
Tasmanian Dams 1983, Tasmania wanted to build a dam on the Franklin river to generate electricity, but the Commonwealth wanted to keep the land like it was. Having signed the World Heritage treaty in the previous year and passed the World Heritage Properties Conservation Act 1983 to ratify the treaty, the Commonwealth was able to declare the site a world heritage spot therefore making it unlawful for Tasmania to build there. The High Court upheld the precedence created from Koowarta in 1982.
Give an example of a modern financial case which supported the power of the Commonwealth
The Ha and Hammond v NSW 1997 case increased the financial power of the Commonwealth. State governments had levied fees on tobacco and franchise fees on certain types of businesses, but the High Court found that these fees were to be exclusively collected by the Commonwealth under section 90 since they fall under ‘excise’ fees.
What is the significance of section 51 (xx)?
Section 51 (xx) is the corporations power, it provides the Commonwealth with the extremely broad power to legislate with respect to ‘incorporated bodies’, which is the legal term for a body that can be legally referred to as one unit. Allowing the Commonwealth to legislate with respect to these gives them power to legislate over charities, non-for profit organizations and sporting clubs, essentially any organization.
Give an example of the section 51 (xx) power being used by the Commonwealth
In 2006 the Howard government introduced the controversial ‘work choices’ bill. The bill sought override many state laws on industrial relations, under the section 51 (xxxv) power on industrial relations. This proved insufficient, so instead the Howard government uses the corporations power in section 51 (xx) instead. 85% of workers are employed in incorporated bodies, thus the Howard government sort to use this power to pass work choices. The legislation was challenged in the High Court, to which the High Court ruled that the legislation was constitutional. This set a precedent for further cases. The Howard government later tried to persuade the Basin states to refer their powers of water management in the area to the Commonwealth so that a uniform water policy could be adopted. The states refused, but the Howard government instead passed legislation using the corporations power, and since the industries which operated in the Murray Darling Basin were incorporated bodies, the law went unchallenged by the states
