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Melbourne University Law Review |
NICHOLAS ARONEY[∗]
[Discussion about the relationship between law and politics in Australian constitutional law is often conducted in abstract terms. McCawley’s Case presents a unique opportunity to examine the relationship between law and politics in the context of a very rich set of specific circumstances, and to do so in a manner which distinguishes between the different dimensions of ‘politics’ and ‘law’, and the complex ways in which they can interrelate. With these objectives in mind, this article undertakes three tasks. First, it seeks to place McCawley’s Case within the personal, political and legal contexts in which it arose, and to show why the case provides a particularly valuable opportunity to test our understanding of the relationship between law and politics. Second, the article aims to identify and distinguish the various political elements of the case in their personal, partisan and ideological dimensions, as well as the competing conceptions of law and constitutionalism upon which the judges relied. Third, the article evaluates the role of law, politics and constitutionalism in the case, arguing that rather than being purely legal or reductively political in character, the decisions are best understood as reflecting contrasting theories concerning the ideal purposes of constitutional law and the appropriate location of constituent power.]
CONTENTS
As to my own little matter, the Court reserved its decision … I have no doubt that the decision will be adverse — the atmosphere of hostility, political, professional, and personal, certainly favours such a result.
— Thomas William McCawley to Henry Bournes Higgins, 2 February 1918[1]
The appointments of Thomas William McCawley, first as President of the Queensland Court of Industrial Arbitration (‘Queensland Arbitration Court’) in early 1917, then as a judge of the Supreme Court of Queensland in late 1917, and finally as Chief Justice in 1922, were a series of decisions destined to provoke political controversy.[2] The establishment of the Queensland Arbitration Court was a central plank of the radical reforms proposed by the newly formed Labor Government of Thomas Joseph Ryan,[3] and McCawley was hand-picked as someone having both the requisite technical skills and political temperament for appointment as the Queensland Arbitration Court’s first President.[4] Major changes, not only to industrial regulation, but also to the political and constitutional structure of the State of Queensland, were imminent — nothing less than the restructuring of the Supreme Court, and the abolition of the Legislative Council, which occurred in 1922.[5]
In this context, McCawley’s appointment to the Supreme Court and his later elevation to Chief Justice were seen by detractors to be part of an attempt by the Labor Government to change the political profile of the Court, and to raise the status of the Queensland Arbitration Court to a comparable level.[6]
When, in December 1917, McCawley presented to the Supreme Court a commission appointing him a judge of that Court, two leading Queensland King’s Counsel, Arthur Feez and Charles Stumm, contested the validity of the appointment on what were said to be ‘purely legal and constitutional grounds’.[7] Their most significant arguments were that the appointment was contrary to the Constitution Act 1867 (Qld) (‘Constitution Act’), and that the Queensland Parliament could not legislate inconsistently with this Act unless the relevant provision in the Act had first been deliberately and expressly repealed.[8] Although Feez and Stumm admitted that the Parliament certainly had the power to amend constitutional statutes such as the Constitution Act, their contention was that it could not do so by implication — that is, simply by passing an Act which was inconsistent with the Constitution Act.[9]
At first instance, a majority of the Full Court of the Supreme Court upheld almost all of the constitutional and other legal objections raised against McCawley’s appointment.[10] While much of the Court’s reasoning might readily be characterised as being ‘purely legal’ in nature, as will be seen, the Court was quite prepared to criticise both the Ryan Government[11]
and the legislature[12]
in a number of significant respects. On appeal, a majority of the High Court upheld the decision of the Supreme Court.[13] Their reasoning was again couched in strictly legal terms, yet once more, the judges were willing to make a number of observations of a colourably ‘political’ character.[14]
However, when the matter was taken to the Judicial Committee of the Privy Council, the Australian decisions were overturned,[15] their Lordships unequivocally finding that the Queensland Parliament possessed ‘full power’ to amend the Constitution of Queensland simply by legislating inconsistently with it.[16] Moreover, the Privy Council’s opinion, while at times abstract and theoretical,[17] was limited to a largely technical review of the relevant Imperial legislation[18] which avoided all reference to the politics and substantive merits of the appointment.[19]
The decidedly political nature of McCawley’s Case,[20] juxtaposed with the ‘strictly legal and constitutional’ aspects of the reasoning, raises an obvious question: were the judges who resolved the dispute politically motivated?[21]
All of the Supreme Court judges who decided the case had been appointed by non-Labor governments, and there were allegations that members of the Court harboured a political bias against the newly formed Labor Government.[22]
Moreover, the sole dissenting judge, Real J, had a working class background (and was prepared to remind the Labor Government of this fact when tension between the Court and the Government reached its peak in the early 1920s).[23]
The judges of the High Court who heard the appeal were similarly not without political connections. Of the majority judges, Griffith CJ was a former Premier and Chief Justice of Queensland, and Barton J had been Prime Minister of Australia.[24] Moreover, as politicians both Griffith and Barton had been liberal-conservative in political orientation — in sharp contrast to the radical-liberal politics of the two minority High Court judges, Isaacs and Higgins JJ, both of whom had been federal Attorneys-General.[25] Indeed, as President of the Commonwealth Court of Conciliation and Arbitration, Higgins held a position that corresponded at the federal level to McCawley’s position as President of the Queensland Arbitration Court,[26] and was not unwilling to correspond privately with McCawley about the case itself.[27]
Further, each of the judges were important figures in Australian politics because of their involvement in the debate over Australian federation in the 1890s, having taken leading,[28] and often opposing,[29] roles in that debate.
But what does it mean for a legal issue, and its resolution by judges, to be ‘political’ in nature? There are different, albeit overlapping, degrees to which a matter might be characterised as such. First, political controversies may be characterised as predominantly ‘personal’ in quality. Here, the contest is essentially one of individual ambition and pursuit of power, coloured perhaps by an element of personal aversion and, on occasion, by outright animosity. Second, political differences may be characterised as ‘partisan’, in the sense that they depend upon formal or informal political alliances and party allegiances — the typical stuff of contemporary parliamentary politics. Third, political differences may be characterised as ‘ideological’. In this sense, the standard political classifications, such as ‘conservative’ and ‘progressive’, ‘liberal’ and ‘socialist’, ‘left’ and ‘right’, emerge.
Political ideologies are, however, more complex than simple left–right dichotomies suggest, and they typically involve a number of dimensions, including legal ones. Thus, particular political ideologies are often (although not necessarily) taken to imply particular theories about the nature, functions and purposes of law. For example, law may primarily be conceived in liberal terms as a facilitator of human choices and as a device by which governmental power is controlled. Alternatively, it may be conceived in progressive terms as a positive instrument of social change, or perhaps, in radical terms as an inevitably conservative institution that itself resists change. Moreover, associated with varying conceptions of law, political ideology can also imply a certain view of the structure and function of the courts, and of the role of the judiciary, as well as more abstract ideas about the institutions of the state generally, and of the ideal Constitution in particular. In other words, political theory can imply both a theory of adjudication and a theory of constitutionalism.
The relationship between political ideology and ideas about law, adjudication and constitutionalism is vexed. On prevailing liberal-democratic conceptions, the courts and the Constitution are politically neutral institutions which reflect fundamental political values that are widely shared by those who are in fact opposed in their more everyday personal, partisan and ideological commitments.[30] From a liberal-democratic point of view, therefore, a proposed change to the Constitution may represent a challenge to the fundamental ground rules of politics — with the potential to influence concrete political outcomes. Debates over constitutionalism and Constitutions, the law and the courts must, therefore, be understood in a context of both political contestation — and are thus political, and contested, in the deepest and most profound sense possible — but they are at the same time debates over the putatively neutral ground rules of politics.
McCawley’s Case involved a complicated chain of events that displayed political elements in each of these six dimensions — personal, partisan, ideological, legal, judicial and constitutional — and this article attempts to chart these elements. The interesting and difficult problem, however, concerns the interrelationship between them. What is, and what ought to be, the relationship between ‘politics’ and ‘law’? Here, the debate often centres on the question of whether adjudication is, can, or should be based upon law, and not politics. Sir Owen Dixon famously insisted that ‘strict and complete legalism’ was the only policy that could secure the confidence of the politically engaged.[31] Sir Owen did not deny that there is a real sense in which political considerations are relevant to judicial decision-making, particularly in the context of constitutional interpretation. A Constitution is a ‘political instrument’, he said, in that it ‘deals with government and governmental powers’.[32] Considerations arising ‘under the Constitution’ are therefore unavoidably political in this sense.[33] However, Sir Owen insisted that the relevant considerations must at the same time be ‘legal’, in the sense that they must be derived from orthodox sources of law, such as previous judicial decisions, statutes and Constitutions.[34] Others, of course, deny that the line can be drawn so easily.[35]
McCawley’s Case provides an interesting test case for an enquiry into the relationship between law and politics in Australia, for it was an intensely political affair which was thoroughly litigated at a state, federal and Imperial level. Moreover, it illustrates this relationship at a critical point in the evolution of Australian constitutionalism. McCawley’s Case was initiated towards the end of the First World War. To a substantial degree, Australia entered that war as a colony of the British Empire, but emerged as an independent nation-state.[36] Against this backdrop, McCawley’s Case was principally about the constitutional foundations of the Australian states, the constituent political units of the Commonwealth of Australia, which was itself a member of a nascent Commonwealth of Nations. At stake, therefore, were the constitutional foundations of an emerging, independent federation of self-governing states. The judgments delivered in McCawley’s Case concerned constitutionalism and the fundamental nature of the ‘polity’ and in this sense they were political decisions of the highest order. Yet, at the same time, the case was about the highly controversial appointment of McCawley. This controversy occurred at the ‘ordinary’ level of politics and was largely fuelled by allegations that personal, partisan and ideological considerations had motivated both the appointment and its opposition.
The judges called upon to resolve the dispute would have been tempted to descend to the ordinary politics of the matter, using the formalistic veil of legal and constitutional reasoning to conceal a ‘result-oriented’ decision. The personal and political connections of the judges on both sides of the political divide would have rendered this temptation a real and powerful one, yet, we must ask: can the constitutional reasoning used in the case be dismissed, simply, as ideological or partisan rhetoric?[37]
As will be seen, according to one side in the debate, what was at issue was the principle of the separation of powers and the independence of the judiciary, as well as the status of the Constitution of Queensland as fundamental, organic or higher law. On the other side, was the view that the law — and therefore the courts, Parliament and Constitution of Queensland — ought to be instruments of social and economic progress, to which a strict separation of the judiciary and the executive, and an inflexible attitude to the relationship between the Parliament and the Constitution, must give way.
In this context, how is McCawley’s Case to be understood? To what extent were the decisions motivated by political and legal considerations? In this article, it will be contended that while both kinds of considerations influenced the judges, distinguishing the ‘political’ dimensions of the case into personal, partisan and ideological aspects, and the ‘legal’ dimension into theories about law, adjudication and constitutionalism, enables a more nuanced assessment. It will be argued that rather than being adequately explained in terms which are either purely legal or reductively political, the decisions are best understood as reflecting contrasting theories of a politico-constitutional character concerning the ideal purposes of constitutional law and the appropriate location of ultimate, constituent power within the Australian states.
Part II of this article accordingly places McCawley’s Case within the political and legal context in which it arose and shows why the case provides a particularly rich opportunity to test our understanding of the relationship between law and politics in Australian constitutional law. Part III turns to the reasoning adopted by the judges, examining the respective roles of technical legal argument, constitutional theory and political motivation in the various judgments. Part IV concludes by arguing that McCawley’s Case cannot be explained entirely in terms of purely legal considerations, or by reference to its political dimensions. Instead, the case turned ultimately on competing conceptions of the ideal Constitution of a self-governing political community.
Thomas McCawley was born on 24 July 1881, the son of a Toowoomba drover, and the sixth of eight children.[38]
His father, James McCawley, was Irish-born; his mother, Mary (née Stenner), was born in Prussia. As befitted a Roman Catholic upbringing, he was duly educated at St Patrick’s Boys’ School in Toowoomba. The financial situation of his family meant that McCawley had to leave school at the age of 14, working first as a teacher, and soon thereafter as a clerk in a solicitor’s office. Shortly before his 18th birthday, he passed the public service examinations and was appointed a clerk, first within the Queensland Government Savings Bank, later within the Public Service Board and finally within the Department of Justice. He soon became Attorney-General James Blair’s private secretary and in this capacity he helped draft the Workers’ Compensation Act 1905 (Qld), and shortly thereafter co-authored a commentary on the Act with Blair and Thomas Macleod.[39] Studying after-hours, he passed the prescribed examinations and was subsequently admitted, on the motion of Blair, to the Queensland Bar in 1907.[40]
McCawley’s work within the Department of Justice must have been impressive,[41]
for in 1910 he was appointed Crown Solicitor by Blair under the Liberal-Labor Government of William Kidston.[42]
His public service career reached further heights in 1915, when he was appointed Under Secretary for Justice under the newly formed Ryan Labor Government.[43]
The Ryan Government was the first Labor administration in Queensland to be elected with a clear majority in the Legislative Assembly.[44] True to its platform, the Government embarked upon an elaborate reform programme during its first term in office that included the establishment of a number of state enterprises, the reform of workers’ compensation and the introduction of compulsory voting, as well as unsuccessful attempts to dissolve the Legislative Council, to abolish the death penalty and to introduce a form of direct democracy through popular initiative and referenda.[45]
This radical reform agenda attracted political opposition from conservative members of Parliament, particularly in the Legislative Council, many of whom were lawyers.[46] Moreover, a disposition on the part of the Government to use its executive and legislative powers in novel ways, and to the fullest extent possible, led to court challenges, and thus to a series of confrontations between the Government and the Supreme Court.[47]
One of the principal legislative initiatives of the Ryan Government was the Industrial Arbitration Act 1916 (Qld) (‘Industrial Arbitration Act’).[48]
In conjunction with Edward Theodore as Secretary for Public Works, McCawley, as Crown Solicitor, played a key role in drafting the Act in its original form.[49]
While the Act was presented as a measure designed to secure ‘industrial peace’,[50] it was clearly intended to lay the foundations for an arbitration system that would strengthen the role of industrial unions and promote the interests of the working class.[51]
At the centre of the Act was the new Queensland Arbitration Court. Section 6(1) established the Court and s 6(2)–(3) empowered the Governor-in-Council, by commission, to appoint judges of the Court, one of whom was to be designated President. Under s 6(5), the Court was deemed to be a ‘branch’ of the Supreme Court and every judge of the Queensland Arbitration Court was deemed to have the ‘status’ of a Supreme Court judge. Section 6(6) provided that the President and judges of the Court were to be appointed for a term of seven years, and were eligible for reappointment. Problematically, however, s 6(6) of the Act also provided that judges of the Queensland Arbitration Court could be appointed to the Supreme Court, bypassing the specific provisions for the appointment of Supreme Court judges contained within the Constitution Act, which required that they be granted life tenure during good behaviour and which set the maximum number of judges at five.[52] McCawley was appointed to the Supreme Court under Industrial Arbitration Act s 6(6), and it was this provision that would be the subject of the constitutional challenge in McCawley’s Case, on the ground of its inconsistency with the Constitution Act.
Under the Industrial Arbitration Act, the Queensland Arbitration Court was invested with wide reaching jurisdiction to make binding awards ‘in any question arising out of any industrial matter’,[53] from which there was no right of appeal.[54] The Court was thus empowered to determine standard working hours and minimum wages so as to guarantee a basic standard of living.[55] The Act also provided for the registration of industrial unions and gave them the right to enter into agreements with employers, to be parties to disputes and to be represented before the Queensland Arbitration Court.[56] Most controversially, the original Bill gave the Court explicit jurisdiction to grant preference in employment to unionists in particular industries.[57]
With partisan motives and for ideological reasons, the Opposition focused its attention upon the union preference clause and, in the course of a highly charged parliamentary debate, was able to secure the rejection of the Bill by the Legislative Council largely on this basis.[58] At a subsequent conference between members of both Houses, the Labor Government agreed to delete the preference clause (taking the view that the Queensland Arbitration Court would, in any case, have discretion to grant preference to unionists).[59]
The Opposition saw this backdown by the Government as a victory. However, the Government’s interpretation of the Bill was soon vindicated in a judgment delivered by McCawley during the first year of his presidency.[60]
By the time of his appointment to the Queensland Arbitration Court, McCawley had deeply imbibed progressive socialist beliefs. He had read the Fabian Tracts and other democratic socialist writings by George Bernard Shaw and Sidney Webb.[61]
McCawley has since been described as ‘a social reformer who saw the law as being a potential instrument of reform, rather than remaining an instrument of conservatism and reaction against reform’.[62] In particular, McCawley was greatly influenced by Henry Bournes Higgins, President of the Commonwealth Court of Conciliation and Arbitration, and Justice of the High Court of Australia.[63]
Correspondence between McCawley and Higgins reveals a warm and courteous relationship, in which they exchanged books[64] and discussed various political and legal issues, confiding on a number of industrial relations matters which had appeared before them (or would appear in the near future) in their respective judicial offices — including McCawley’s Case itself.[65]
McCawley was at times effusive in his praise of Higgins. He regarded Higgins to have been the ‘sheet anchor’[66]
of the entire system of industrial regulation in Australia and to have contributed ‘a lasting service to the community’ by ‘lifting the subject [of industrial relations] out of the domain of party politics’.[67]
As President of the Queensland Arbitration Court, McCawley would soon show himself to be a dedicated disciple of his Victorian mentor.[68] In this context, the
Higgins–McCawley correspondence relating to the politics of McCawley’s appointmen[69]
raises serious questions about the appropriateness of Higgins J sitting on the High Court appeal in McCawley’s Case.
Edward Theodore seems to have been the prime mover behind McCawley’s appointment to the Queensland Arbitration Court and the Supreme Court.[70]
He explained that the Government was ‘anxious to secure men of legal standing and ability, who were also temperamentally fitted for work of this kind’.[71] It has been suggested that all Theodore meant by this was someone possessing ‘suitable knowledge’ to administer a ‘new form of law’ and that it was in this sense that McCawley’s appointment was politically consistent with the values of the Labor Party.[72]
A similar view was suggested by McCawley himself when he later observed that what was required was someone not ‘diametrically opposed to the contemporary attitude of intelligent students of industrial problems.’[73]
The Queensland Arbitration Court should be staffed, he said, by men of ‘great altruistic qualities’, rather than by those who desired power for its own sake.[74]
Altruistic attitudes, suitable knowledge and an intelligent grasp of the issues were no doubt necessary qualifications for the position. However also required, it seems, was a strong commitment to the ‘progressive’ social objective of industrial reform and the alleviation of social injustice through compulsory industrial arbitration.[75]
McCawley’s sympathy for the Labor Government’s substantive policy goals was illustrated from the beginning of his term at the Queensland Arbitration Court. Reflecting a particular view or ideal of the law, McCawley declared that the Queensland Arbitration Court would not be bound by precedent and strict legal rules, but would be guided by ‘equity and good conscience’.[76]
As an instrument of ‘social justice’, the Queensland Arbitration Court would set wages by reference to the cost of living as determined by statistical evidence, but this would be modified so as to ensure that workers were guaranteed a ‘fair and average standard of comfort’ which would advance ‘as the wealth of the community increases’.[77]
To do so, he continued, the Court would not allow its discretion to be fettered by a ‘rigid rule’ based on ‘considerations of consistency.’[78]
The ‘new sciences’ of economics, statistics and political science would provide the data necessary to formulate industrial awards which would secure the improvement of working conditions and wages.[79]
In this way, McCawley enthusiastically embraced the movement ‘from contract to status’ that the new regime of industrial arbitration embodied.[80]
The expectations of the Government were realised — and those of the Opposition dashed — when in June 1917, McCawley P decided that the Queensland Arbitration Court had jurisdiction to order employers to make union membership a condition of employment.[81]
However, the Government’s objective was not only industrial ‘justice’ but also industrial ‘peace’,[82] and this implied an attempt to arbitrate between the conflicting demands of workers and employers.[83]
The resolution of industrial disputes through arbitration was therefore preferred to collective bargaining, even though such a policy placed Ryan, Theodore and McCawley in conflict with some of the more militant unions.[84]
For example, when strikes erupted in northern Queensland in 1919, McCawley observed that ‘the majority of the strikes in the north were due to the desire to punish the employers for their departure from the method of collective bargaining and for approaching the Arbitration Court’.[85]
McCawley’s relatively moderate approach to industrial relations was reflected in his insistence that award wages should be struck at a rate which industry could in fact afford to pay,[86]
and by his unwillingness to side with those who ‘habitually disregard the provisions of the law.’[87] This conception of law as an instrument of reform undergirded the preference for arbitration over collective bargaining. It also dovetailed neatly with the idea that the Parliament and the Government should be free of any constitutional constraints that would prevent them from efficiently enacting and administering laws for the betterment of society.
In this context, opposition to the Industrial Arbitration Act and to McCawley’s appointment was simultaneously personal, sectarian, partisan and ideological in character.[88]
Other more senior lawyers were passed over in respect of McCawley’s appointments to both the Queensland Arbitration Court and the Supreme Court, so the opposition was not without a personal element.[89]
Religious sectarianism also added an important dimension to the controversy. Ryan, Theodore and McCawley were Roman Catholic; their opponents were mostly Protestant.[90]
When the Anglican Bishop, Henry Frewen Le Fanu, entered the fray by delivering an entire sermon on the Ryan Government’s various appointments, he was answered immediately by the Catholic Archbishop, Dr James Duhig.[91] The resistance was likewise partisan and ideological. Within the arguments of the opposition, for example, it is possible to discern the liberal-conservative values of equality of opportunity and free enterprise, as well as the view that the essential task of government and law is to facilitate the operation of the market.[92]
Thus, when Theodore stated that McCawley was ‘temperamentally fitted’ for the appointment, the opposition leapt on the political implication.[93]
Leading the attack, Edwin Fowles suggested that the appointment had been made on the basis of ‘politics’, ‘religion’ and ‘personal friendship’ rather than ‘merit, efficiency, and seniority’.[94] However, William Hamilton, the Secretary for Mines, responded that McCawley’s sympathy for the objectives of the Industrial Arbitration Act did not mean that the appointment was made on the basis of ‘his politics or his religion’.[95] Hamilton denied that the decision was political in a partisan sense, but was certainly prepared to defend the appointment on the basis of ideological affinity.[96]
While the controversy surrounding McCawley’s appointment was therefore predominantly political in character, it also had a definite legal dimension. According to the liberal-conservative political philosophy of the opposition, law was understood primarily as a facilitator of private choices and economic exchange, as well as a limit on governmental power. On this view, a close association between the Government and the courts would undermine the independence of the judiciary and prevent it from functioning effectively as a constraint on government power. The Leader of the Opposition, William Vowles, argued that the idea of elevating industrial judges to Supreme Court status was an ‘interference with the existing rights of the present occupants of the Supreme Court bench.’[97] He also expressed concern that conferring arbitral and judicial functions on industrial judges would mix both legislative and judicial power in the same office.[98]
During debate over an amendment that would have given judges of the Queensland Arbitration Court tenure for life, Vowles argued that it was ‘one of the foundations of our political institutions that the judge should be independent, and that was attained by making them irremovable during good behaviour.’[99] Two years later, in relation to McCawley’s Case, Arthur Feez would maintain that appointments to the Supreme Court should only be ‘bestowed’ upon a member of the legal profession ‘who by his integrity, his learning, his ability and his experience has publicly proved himself fitted for the position.’[100] McCawley’s ideological affinity with the Labor Government may have made him temperamentally suited to the Government’s objectives, but too close an association between the Government and the judicial branch would, it was argued, undermine the capacity of the courts to hold the Government accountable to the law. It would interfere, in other words, with one of the fundamentals of liberal-democratic constitutionalism.
The Constitution of Queensland can be traced to a statute of the Imperial Parliament enacted in 1855 which conferred a Constitution upon the colony of New South Wales.[101]
At the time, the territory of what is now Queensland was part of New South Wales. However, ss 6–7 of the New South Wales Constitution Statute authorised the Queen to alter the northern boundary of New South Wales by separating territory from that colony, and to establish the severed country as a new colony or colonies. It also empowered the Queen to provide, by Letters Patent or an Order in Council, for the government of any new colony, including the establishment of a legislature with full power to make further provision in that regard.[102]
Letters Patent[103] and an Order in Council[104] issued on 6 June 1859 exercised the power conferred by the New South Wales Constitution Statute, creating the colony of Queensland and establishing its Constitution. Clause 2 of the Order in Council conferred upon the newly established Queensland legislature the power to make laws for the colony ‘in all cases whatsoever’. Clause 22 made clear that this included ‘full power and authority’ to amend or repeal the Order in Council ‘in the same manner as any other laws’.[105] At the same time, cl 15 of the Order in Council adopted ss 38–40 of the Constitution Act 1855 (NSW),[106]
which dealt with the commissions, removal and salaries of judges of the Supreme Court. In adopting these provisions of the New South Wales Act, cl 15 of the Order in Council implemented the key guarantees of judicial tenure and salary which had been secured by the Act of Settlement 1701, 12 & 13 Wm 3, c 2 (‘Act of Settlement’).
Pursuant to a thorough consolidation of the Constitution of Queensland in 1867, ss 38–40 of the Constitution Act 1855 (NSW) were reproduced within two important Queensland statutes, the Supreme Court Act 1867 (Qld) (‘Supreme Court Act’), as ss 9–10, and the Constitution Act, as
ss 15–17. The scheme of consolidation introduced by these Acts was comprehensive, embracing as many as 29 Acts and other instruments[107] This included the repeal of the Order in Council, but with one very important exception: cl 22, containing the power to amend or repeal the Order in Council itself, remained untouched[108] Thus, while the location of at least some of the provisions that would prove relevant to McCawley’s Case were changed, the basic content remained the same: first, the fundamental power to amend the ‘Constitution’, including the Order in Council, the Constitution Act and the Supreme Court Act; and second, the constitutional protection of the tenure and salaries of judges of the Supreme Court, as entrenched by those Acts.
The enactment of the Colonial Laws Validity Act 1865 (Imp) 28 & 29 Vict, c 63 (‘Colonial Laws Validity Act’), itself intended to eliminate doubts concerning the powers of colonial legislatures to amend their Constitutions,[109] was also relevant. Section 2 of the Act provided that any colonial law repugnant to an Imperial law, regulation or order would — to the extent of the repugnancy — be void and inoperative. Section 5, however, confirmed that every colonial legislature would have full power to establish, abolish and reconstitute the courts of the colony, including a power to alter the constitution of its courts and to make provision for the administration of justice within the colony generally. It also gave all ‘representative’ legislatures full power to make laws with respect to the constitution, powers and procedure of the legislature itself. Section 5 clearly reinforced, therefore, the extensive powers possessed by the colonial legislatures to amend their Constitutions. However, s 2 maintained the principle that colonial laws would continue to be subject to the rule of repugnancy to Imperial laws. With respect to McCawley’s Case, this left open the argument that because the provisions of the Constitution Act relating to the tenure of judges derived their force from the Order in Council (itself authorised by an Imperial enactment), the Queensland legislature could not legislate in a manner repugnant to those provisions without first repealing them.
The Commonwealth Constitution was also thought to be relevant to McCawley’s Case. Section 106 provides:
The Constitution of each State of the Commonwealth shall, subject to this Constitution, continue as at the establishment of the Commonwealth, or as at the admission or establishment of the State, as the case may be, until altered in accordance with the Constitution of the State.
It could be argued that this provision supported the proposition that the Constitution of each state would have to be amended deliberately and explicitly before a state legislature could legislate inconsistently with it. However, this argument depended on the meaning of the words ‘altered in accordance with the Constitution of the State’ — the very question at issue in McCawley’s Case. Section 106 of the Commonwealth Constitution, like ss 2 and 5 of the Colonial Laws Validity Act, was therefore relevant, but not necessarily dispositive.
Finally, the number of Supreme Court judges and the quantum of judicial salaries had been progressively increased in Queensland between 1862 and 1903.[110] The Supreme Court Acts Amendment Act had most recently provided that the number of judges must not be less than four and must not exceed five.[111] Immediately prior to the issue of McCawley’s commission in 1917, there had been in fact five Supreme Court judges, so the appointment of McCawley as a judge under the Industrial Arbitration Act was inconsistent with the Supreme Court Acts Amendment Act because his appointment increased the number of Supreme Court judges to six. Thus, an additional issue in McCawley’s Case concerned this inconsistency and the question of whether the Industrial Arbitration Act had validly amended the Supreme Court Acts Amendment Act in this particular.
The controversy relating to McCawley’s appointments began on 12 January 1917, when the Governor of Queensland, upon the advice of the Executive Council, issued a commission appointing McCawley as a judge of the Queensland Arbitration Court, and designating him President of the Court ‘for a period of seven years’.[112]
McCawley duly began to perform the duties of judge and President of the Court, along with Judge Macnaughton, who had been a judge of the old Industrial Court of Queensland, and who was appointed judge of the new Queensland Arbitration Court at the same time.[113]
On 12 October 1917, the Governor, again upon the advice of the Executive Council, issued a further commission appointing McCawley a Justice of the Supreme Court, under which he would hold office ‘during good behaviour’.[114] At a sitting of the Full Court of the Supreme Court on 6 December 1917, McCawley presented his commission and requested that the Chief Justice administer the oath of office.[115] When Feez and Stumm made their objections to the appointment on ‘various purely legal grounds’,[116] the Court suggested that it make a pro forma decision against the validity of the appointment so that the matter could be determined ‘in some appropriate manner’ by a ‘Court of Appeal’, being either the High Court or the Privy Council.[117] However, McCawley asked that the matter be treated as an ordinary matter coming before the Full Court.[118] Feez and Stumm therefore proceeded to make submissions against the validity of the appointment,[119]
followed by Attorney-General Ryan and H D Macrossan, who argued in support of its validity.[120]
On 12 February 1918, a little over two months later, Cooper CJ delivered a lengthy opinion of the Supreme Court in which it concluded by a 4:1 majority that McCawley was not entitled to have the oath administered or to take his seat as a member of the Supreme Court.[121] The principal reason for the decision was that Industrial Arbitration Act s 6(6), in providing for the appointment of Supreme Court judges for a tenure of only seven years, was inconsistent with Constitution Act ss 15–16, and that cl 22 of the Order in Council, read in the light of Colonial Laws Validity Act ss 2 and 5, did not give the Parliament power to legislate inconsistently with the Constitution Act without first expressly amending the relevant provisions of that Act.[122] Real J dissented on the ground that any inconsistency between the Industrial Arbitration Act and the Constitution Act must be regarded as an implied amendment of the earlier Act, and thus valid.[123]
On 15 February 1918, the Supreme Court further decided that McCawley’s appointment as President and judge of the Queensland Arbitration Court was unlawful because no salary had been fixed prior to the appointment, pursuant to Industrial Arbitration Act s 6(8).[124] The Court continued, however, to recognise the need for these issues to be finally resolved by some other, more independent agency. It suggested that all doubts could be put to rest ‘either by the intervention of Parliament or by the decision of some final Court of Appeal’.[125]
McCawley immediately applied for leave, or alternatively for special leave, to appeal from that decision to the High Court. The High Court, however, declined to grant leave to appeal on the ground that the order was not a ‘judgment’ within the meaning of Commonwealth Constitution s 73 and Judiciary Act 1903 (Cth) s 35.[126] Having failed on this point, and in order to bring the matter to a head, on 6 March 1918, McCawley appeared before Judge Macnaughton (in his capacity as judge of the District Court), took the oaths required to be taken by Supreme Court judges and thereafter claimed all the rights belonging to a judge of the Supreme Court.[127]
An application for quo warranto was then issued by G A Carter (McCawley’s successor as Under Secretary for Justice), which initially came before Cooper CJ on 8 March 1918, and was heard by the Full Court on 12 March.[128]
On 19 March, Feez and Stumm were added as relators to the proceedings,[129] and on the same day, Ryan appeared with an affidavit recounting the discovery of an Executive Minute of 5 January 1917, gazetted the next day, which appointed McCawley as President of the Queensland Arbitration Court at a salary of £2000 per annum.[130] On its face, this suggested that McCawley’s salary had in fact been fixed prior to his appointment as President, so that when the Supreme Court subsequently made the quo warranto order absolute, the order only related to McCawley’s appointment to the Supreme Court. However, on 3 April, Cooper CJ called the parties back to the Court for an explanation as to why, upon closer inspection, the relevant gazetted notice, while referring to the appointment, contained no reference to the fixing of salary. His Honour maintained that: ‘the Court [had been] misled in a very material particular on an occasion when they were entitled to expect not only the exercise of the utmost care by officials in framing their affidavits but also the observance of the utmost good faith.’[131]
When Ryan appeared before the Court on 26 April 1918, there followed a lengthy and heated exchange. Ryan disputed the jurisdiction of the Court, declined to produce or disclose the contents of the telegram in which he claimed the Governor had approved the Executive Minute and insisted that the Court must accept the terms of the affidavit on its face. Only after extended argument did the Court eventually, but reluctantly, allow the original order to stand.[132]
An information for quo warranto requiring McCawley to show by what authority he claimed to be a judge of the Supreme Court was ultimately filed on 16 August and the Full Court pronounced a judgment of ouster against McCawley on 22 August.[133]
McCawley then initiated an appeal to the High Court, which heard argument from 10 to 12 September 1918, and delivered its judgment on 27 September, by majority affirming the judgment of the Supreme Court.[134] The ground of the decision was that McCawley’s commission was unauthorised by law and therefore invalid. Two reasons were given. First, Griffith CJ, Barton and Gavan Duffy JJ concluded that if the commission was, on its proper construction, for life, it would be contrary to the Industrial Arbitration Act, which authorised appointment to the Supreme Court only during his tenure as a member of the Queensland Arbitration Court.[135] Alternatively, reasoned Griffith CJ, Barton and Powers JJ, if the Supreme Court commission was, consistent with the Industrial Arbitration Act, for a fixed term of seven years, both the Act and the commission would be invalid because of inconsistency with the requirement of the Constitution Act that Supreme Court judges enjoy life tenure, subject to good behaviour.[136] Isaacs and Rich JJ dissented in a joint judgment on the ground that the Queensland Parliament had sufficient power under both the Colonial Laws Validity Act and the Constitution Act to legislate inconsistently with the Constitution Act,[137] thereby exercising its power of amendment by implication and authorising McCawley’s appointment for what amounted to a term of seven years.[138] Higgins J agreed with this conclusion,[139] but also found that McCawley’s appointment was in fact for life, and preferred a construction of the Industrial Arbitration Act which authorised appointments for life, so that there would, in fact, be no inconsistency with the Constitution Act.[140]
McCawley thereupon appealed to the Privy Council. Given the general constitutional significance of the case, the Attorney-General for England intervened. The matter took some time to be heard, but on 8 March 1920 the Privy Council allowed the appeal, reversing the decisions of the Supreme Court and the High Court.[141] Lord Birkenhead LC delivered the opinion of the Privy Council, largely adopting the reasoning of Isaacs and Rich JJ, and categorically affirmed the capacity of the Queensland Parliament to amend the Constitution of Queensland simply by legislating inconsistently with it.[142] The legality of his appointment to the Supreme Court having been affirmed, McCawley duly took his seat in May 1920, while continuing to act as President of the Queensland Arbitration Court.
Ryan, Theodore and McCawley had seemingly been vindicated, but this came at the expense of a rapidly deteriorating relationship between the Government and the Supreme Court, not only in respect of McCawley’s Case itself, but over a number of other issues.[143]
When Theodore replaced Ryan as Premier in 1921,[144]
he introduced the Judges’ Retirement Bill 1921 (Qld), which required the existing judges of the Supreme Court to retire at the age of 70. As might have been expected, the Bill was opposed by the judges on the ground that it attacked the principle of judicial independence and neutrality.[145] However, Attorney-General John Mullan replied that the Government was proposing something entirely within the law since the Privy Council’s decision in McCawley’s Case established that the ‘Parliament has an unquestionable right to amend the Constitution Act, or any other Act relating to judicial tenure, so long as public welfare requires it.’[146]
The Act was passed and came into operation on 31 November 1921. It meant that Cooper CJ (aged 75), Chubb J (aged 76) and Real J (aged 74) were forced to retire from office immediately.[147]
Feez exclaimed that the action was unprecedented;[148]
The Brisbane Courier alleged that the Act was an attempt to ‘remodel the Judiciary more in accordance with Caucus ideas’.[149] On 1 April 1922, the Attorney-General announced that McCawley would be appointed Chief Justice.[150] He held that office until his untimely death three years later.[151]
In order to appreciate the legal and political significance of McCawley’s Case, it is important to view it in the context of a number of important constitutional controversies in Queensland that came before the courts between 1907 and 1920.[152]
In a series of state insurance cases decided in 1916 and 1917, the Supreme Court and the Privy Council were called upon to interpret Queensland legislation intended to create a state monopoly over the provision of workers’ compensation.[153] The private insurance companies that brought the matters sought to delay the implementation of the state monopoly, thereby clearly challenging a key plank of Labor Government policy. It is sufficient here to note that the companies were not able to delay substantially the application of the law, and the outcome of the cases has therefore been characterised as a ‘virtual win’ for the Labor Government.[154] The state insurance cases were thus of considerable political significance, particularly at an ideological and partisan level.
In Duncan v Theodore,[155] the challenge to the Government involved political issues that were not only ideological, partisan and even personal in character, but also concerned points of fundamental constitutional law. The case involved the compulsory acquisition of privately-owned bullocks by Queensland police under the Sugar Acquisition Act 1915 (Qld). In the course of the litigation, the Supreme Court, High Court and finally the Privy Council had to adjudicate the remarkable allegation that there had been an absence of good faith on the part of the Government in authorising the seizure.[156] The case therefore had the potential to ignite an acute confrontation between the courts and the Government which could not fail to have significant political ramifications. But when Viscount Haldane delivered the opinion of the Privy Council holding that the good faith of the executive could never be questioned in a court of law,[157] the Government enjoyed yet another victory, both constitutionally and politically.
Despite their constitutional significance, the Duncan v Theodore cases concerned the executive power of the Queensland Government, so their relevance to the issues in McCawley’s Case was tangential at best. However, in two further cases, Cooper[158] and Taylor v Attorney-General (Qld),[159] the constitutional powers of the Queensland Parliament were directly in issue. Indeed, much of the constitutional reasoning in McCawley’s Case would be derived from Cooper and Taylor. It is therefore necessary to discuss these two cases in some detail.
Cooper involved a constitutional challenge to a series of income tax statutes brought by the then Chief Justice of the Supreme Court, Sir Pope Cooper. The Chief Justice, on behalf of the Court, argued that the enactments, in purporting to impose a tax on their judicial salaries, were inconsistent with the Constitution of Queensland. Clause 16 of the Order in Council and s 17 of the Constitution Act both provided that ‘such salaries as are settled upon … Judges of the Supreme Court’ should be ‘paid and payable … so long as the patents or commissions of them … shall continue and remain in force’. It was argued that the income tax statutes constituted a ‘reduction or diminution’ of their judicial salaries, contrary to the guarantee secured by these provisions. As such, the case involved a remarkable confrontation between the judges and the Government over two very fundamental constitutional issues: first, the independence of the judiciary, and second, the legislative powers of the Queensland Parliament. Of course, these were precisely the issues that had to be considered in McCawley’s Case.
When the Commissioner for Income Tax for the State of Queensland claimed from Sir Pope the payment of income tax on his salary, Sir Pope resisted payment on the ground that the taxing statutes were unconstitutional and void. A police magistrate upheld Sir Pope’s argument, but this was reversed by a District Court judge and by the Supreme Court itself.[160] The High Court rejected his appeal, on the principal ground that the income tax statutes were not inconsistent with the relevant provisions of the Constitution of Queensland. While the provisions of the Order in Council and the Constitution Act prevented any ‘reduction or diminution’ of a judicial salary during a term of office, it was held that a general tax on the aggregate income of all taxpayers, derived from all sources, was not a deduction from the judge’s salary.[161]
However, Griffith CJ (with whom, significantly, Isaacs J agreed), as well as Barton and O’Connor JJ, addressed the more fundamental issue raised by the case: whether the power to amend the Constitution Act includes a capacity to amend it by implication, by merely legislating in a manner inconsistent with the Act. On this point, all of the judges except Higgins J considered that the Constitution Act would have to be deliberately repealed before the Parliament could legislate in a manner (otherwise) inconsistent with it — and even Higgins J was prepared to accept this proposition for the purposes of argument.[162]
The decision in Cooper was thus very relevant to the issues raised in McCawley’s Case. One particular question that the Supreme Court had to consider in McCawley’s Case was the extent to which the opinions expressed by members of the High Court in Cooper on the question of implied repeal were in fact binding, since the conclusion that there was no inconsistency with the Constitution Act was sufficient to decide the case.[163] After closely reviewing the High Court judgments, the Supreme Court in McCawley’s Case concluded that it was bound by what was held with regard to that fundamental question.[164] After all, Griffith CJ and O’Connor J had characterised the question of implied repeal as being of ‘great’[165] and ‘far-reaching’ importance,[166] and Barton J seems to have agreed.[167] Griffith CJ and Barton J thus addressed the implied repeal question first and the inconsistency question second, treating them both as determinative.[168] Notably, however, O’Connor J pointed out that the implied repeal issue was ‘not essential’ to the determination of the case,[169] and addressed the question after the inconsistency point only because of its sweeping significance.[170] Moreover, Higgins J thought that the ‘curious and delicate points’[171] raised by the constitutional issue could be avoided altogether, and decided the matter solely on the basis of the inconsistency issue.[172] His Honour expressed the view that if the implied repeal should ever come up for definite decision then
it will be well if it can be approached as a fresh subject uninfluenced by any expression of opinion made in a case that has been solved on other and narrower grounds. I do not think that the mind bestows the same searching scrutiny on a point which is not necessary for a decision as on a point which is necessary.[173]
That the expressions of opinion in Cooper concerning implied repeal were mere obiter would prove to be critical to the dissenting joint judgment of Isaacs and Rich JJ in McCawley v The King[174] (upon which the Privy Council heavily relied). This is especially so given that Isaacs J had, in Cooper and again in Baxter v Ah Way,[175] expressed agreement with the judgment of Griffith CJ, which contained fundamental statements of principle which flatly contradicted the conclusions adopted by Isaacs and Rich JJ in McCawley v The King.[176]
Whereas Cooper suggested that the Constitution of Queensland was in the nature of a ‘fundamental law’ and rejected the possibility of ‘implied repeal’,[177] the decision of the High Court in Taylor[178] emphasised quite the opposite idea: namely, that the Queensland Parliament had ‘full power’ to legislate with respect to its own ‘constitution’.[179]
The two critical questions that had to be addressed in Taylor were whether the Parliamentary Bills Referendum Act 1908 (Qld) (‘Referendum Act’) had been validly enacted and whether there was power under the Constitution Act to abolish the Legislative Council by a statute passed in accordance with the special procedures stipulated under the Referendum Act.[180] The Referendum Act provided that if a Bill was twice passed by the Legislative Assembly and each time rejected by the Legislative Council, the Bill could nonetheless be presented to the Governor for royal assent if the Bill were to be approved by a majority of Queensland voters in a referendum. The Referendum Act thus purported to qualify the requirement that the Legislative Council consent to legislation, a step that was inconsistent with the Constitution Act as it then stood. While the Act ‘professed’ to be an amendment of the Constitution Act, its operative provisions were, as Barton J observed, ‘merely … at variance’ with the Constitution Act.[181] This raised the same question that had arisen in Cooper, which would also shortly arise in McCawley’s Case: namely, whether the Referendum Act could amend or repeal the Constitution Act by implication, or whether it would have to be preceded first by a deliberate and explicit constitutional amendment.[182]
On this last question, the Supreme Court held, following Cooper, that the Referendum Act was simply invalid.[183] However, when the matter came before the High Court, Barton J acknowledged that he himself had ‘a great deal of doubt’ about the matter and ‘for some time’ had been ‘much impressed’ by the reasoning of the Supreme Court.[184] His Honour also considered that the decision in Cooper would ‘normally’ be applicable, with the result that the Referendum Act would be invalid on the ground of its inconsistency with the Constitution Act.[185] Yet, after further considering the matter, Barton J concluded that Colonial Laws Validity Act s 5 nullified the application of the principle in Cooper in respect of the particular kind of legislation that it authorised.[186] Section 5 provided that every representative legislature of a British colony would have ‘full power to make laws respecting the constitution, powers and procedure of such legislature’. According to Barton J, the Referendum Act was a law ‘respecting’ the powers and procedure of the legislature, and thus s 5 covered the case.[187] The other members of the High Court appeared to agree.[188] Isaacs, Gavan Duffy and Rich JJ said that the ‘plain [and] natural meaning’ of the words used in the Colonial Laws Validity Act amply covered the legislation in question.[189] The decision of the High Court on this central point was unanimous.
The High Court was also unanimous in concluding that there was power under the Constitution Act to abolish the Legislative Council through a law passed under the referendum procedure.[190] In coming to this conclusion, however, the Court had to address the argument that the power in Colonial Laws Validity Act s 5 could not extend to the alteration of certain features of the Queensland Parliament that were deemed ‘essential’.[191]
The first of these fundamentals was relatively easy to establish. The power relied upon in s 5 was conferred only upon ‘representative legislatures’, and was a power to make laws with respect to the constitution of ‘such [a] legislature’. It therefore appeared to all members of the Court that the power conferred by s 5 could not be used to abolish the representative character of the Parliament.[192] The second fundamental was more difficult, in so far as it did not rely on the actual words used in s 5.[193] The plaintiffs had argued that if s 5 were read without qualification, it would ‘authorize the total elimination of the Crown as part of the legislature.’[194] Isaacs J (with whom Powers J agreed), responded that the reference to ‘the Legislature’ in s 5 did not include the Crown, but referred only to the Houses of Parliament. The reason for this was that it was a ‘fundamental conception’, basic to the ‘very nature of our constitution as an Empire’, that the Crown could not be included in the ‘ambit of such a power.’[195]
Barton and Isaacs JJ also had to address the fact that they had concurred in the decision in Cooper. For Barton J, s 5 was simply conclusive; how it could make all the difference in Taylor and not in Cooper was not explained.[196] For Isaacs J, Cooper was likewise ignored, except on another point altogether: that cl 22 of the Order in Council was yet another fundamental element of the Constitution of Queensland — it too could not be repealed, either using the power that cl 22 itself conferred, or by the power conferred by Colonial Laws Validity Act s 5. As Isaacs J put it, ‘clause 22 stood, and … still stands, as a permanent power of the Queensland Legislature outside the express working provisions of the Constitution for the time being.’[197]
Barton and Isaacs JJ’s judgments in Taylor thus appear to be quite inconsistent with their respective decisions in Cooper. Barton J’s judgment also seems to be completely inconsistent with his decision in McCawley’s Case.
Isaacs J’s judgment in Taylor is noteworthy for two further reasons. First, we find in his judgment a concern for the ‘plain meaning’ of the ‘text’ awkwardly juxtaposed against the extra-textual idea of a ubiquitous Imperial Crown as a ‘fundamental’ of the British, Australian and Queensland Constitutions. Notably, an insistence upon textual literalism together with a belief in the fundamentality of the Crown — indivisible and omnipresent — was one of the critical (and perplexing) features of the reasoning of the joint judgment in the more famous Amalgamated Society of Engineers v Adelaide Steamship Co Ltd,[198] a decision which Isaacs J is reputed to have drafted.[199] The extra-textuality of this latter conception suggests, at least, that Isaacs J’s resistance to other ‘fundamentals’ in McCawley’s Case (that is, the idea of the Constitution as ‘fundamental law’) and in the Engineers’ Case (that is, the implied immunities and reserved powers doctrines derived from the idea of ‘federalism’), cannot be interpreted simply as an outworking of a rigorous and consistent textualism. For Isaacs J, what was at issue in Taylor was the capacity of a ‘self-governing community’ to determine what combination of institutions would be ‘sufficient as its organ of legislation’.[200]
A similar conception of what it meant for a political community to be ‘self-governing’ would likewise underlie, as will be seen, his Honour’s commitment to parliamentary sovereignty in McCawley’s Case, not to mention the expansive view of Commonwealth legislative power that was articulated in the Engineers’ Case. In this sense, Isaacs J was prepared to articulate a profoundly ‘political’ conception of what the ‘Constitution’ is and should be, a conception which cannot be defended simply by reference to literalism or legalism. This does not mean, however, that Isaacs J’s judgments can be dismissed simply as ideological and outcome-oriented. Barton J — as well as Griffith CJ and the other judges in McCawley’s Case — likewise had their own ‘political’ conceptions of the ideal Constitution. Indeed, as will be seen, McCawley’s Case would be the opportunity for these judges to articulate their respective hopes and aspirations regarding the constitutional foundations of the Australian political system.
As politically and constitutionally momentous as Cooper and Taylor were, it has been said with good reason that McCawley’s Case was ‘by far the most important’.[201]
McCawley’s Case concerned not only the status and independence of the Supreme Court, but also the fundamental power of the Queensland Parliament to alter the Constitution of Queensland itself.[202]
Since the Constitution Act derived from a series of Imperial enactments which themselves gave the Queensland legislature power to alter the Constitution of Queensland, the case involved the allocation of ultimate politico-constitutional authority in Queensland — the most fundamental of constitutional questions. When in 1920 the Privy Council concluded that the Parliament of Queensland was, for all intents and purposes, in a position analogous to the Imperial Parliament itself, there could be no doubt as to whether the Parliament had power to recompose the Supreme Court and to abolish the Legislative Council. For all practical purposes, the Queensland Parliament was in the position of a sovereign legislature.
What, then, was the reasoning that led the judges in McCawley’s Case, as well as in Cooper and Taylor, to their respective conclusions? To what extent was the reasoning ‘strictly legal and constitutional’? To what extent was it ‘political’?
A preliminary point to note when considering the arguments on either side of the debate in McCawley’s Case is the fact that the legal texts, as they stood, did not directly address the question of implied repeal of the Constitution Act. Indeed, the texts were quite consistent with either answer to this question, so that its resolution depended not simply on the relevant constitutional documents, but also on the wider constitutional theories which informed either side of the debate. And these rival theories were liable, as the Privy Council put it, to be ‘carried to every proper consequence with logical and inexorable precision’.[203]
The underlying premises on each side of the argument entailed a complicated series of implications and corollaries, such that it is possible to describe and summarise the arguments invoked in various ways, placing the emphasis on one or another of the various lines of logical implication. However, two constitutional theories dominated the reasoning: one that was premised upon the idea that the Constitution of Queensland was a kind of ‘fundamental law’, and the other premised on a conception of the Queensland Parliament as a kind of ‘sovereign legislature’. While these conceptions were expressed primarily in legal and constitutional terms, each tended to reflect a particular legal ideology — a model of what the law ought to be, understood as a matter of constitutional theory and, indeed, a particular political conception of what an ideal Constitution would look like.
This Part aims to explain the various ingredients on both sides of the debate. It begins with the specific legal arguments and interpretations of the written law, before turning to the various explicit references to constitutional and legal theory articulated throughout the judgments. The Part then concludes by closely analysing the fundamental political principles and assumptions that underpinned the constitutional and legal dimensions of the argument.
As discussed, a number of foundational constitutional texts were relevant to McCawley’s Case, including: the New South Wales Constitution Statute; the Constitution Act; the Supreme Court Act; the Order in Council, especially cls 15, 16 and 22; Colonial Laws Validity Act s 5; and Commonwealth Constitution s 106.[204]
It was accepted by both sides of the debate that, as statutes and orders derived ultimately from the Imperial authority of the United Kingdom Parliament, these Acts operated within Australia with paramount force, such that any colonial law repugnant to them would ‘remain absolutely void and inoperative’, as s 2 of the Colonial Laws Validity Act affirmed.[205] The judges who found McCawley’s appointment to be unconstitutional — such as Griffith CJ, Barton and O’Connor JJ — focused determinedly on the paramount force of Imperial law. Their Honours reasoned that such force attached not only to the relevant Imperial enactments, but also to the two consolidating statutes of the Queensland Parliament: the Constitution Act and the Supreme Court Act, both of which re-enacted the protections accorded to the judiciary previously contained in the Order in Council.[206] Even though Parliament clearly had the power to amend, to the extent to which it sought fit, these ‘ordinary’ statutes which now embodied the ‘constitutional’ protections accorded to the judiciary, it was argued that these protections continued to have paramount force until repealed. This was because their legal force was ultimately derived from an Imperial statute and they were a verbatim re-enactment of provisions originally contained therein.[207] Unless amendments were first made to the guarantee of life tenure for Supreme Court judges, s 6(6) of the Industrial Arbitration Act — which allowed judges to be appointed for a limited term of years — would be void for repugnancy.[208] Since no amendments had been made to the two constitutional statutes prior to the enactment of the Industrial Arbitration Act, it followed that s 6(6) was invalid, thus rendering McCawley’s appointment to the Supreme Court under that section illegal and ineffective.[209]
On the other hand, the reasoning of those judges who found McCawley’s appointment to be legally valid — Isaacs and Higgins JJ, as well as Lord Birkenhead LC — focused upon the virtually unlimited scope of the legislative and constitutive power initially conferred upon the Queensland Parliament by cl 22 of the Order in Council. This power was taken up by Constitution Act s 2, and was confirmed under Colonial Laws Validity Act s 5.[210] In light of these provisions, the Constitution Act was considered to be nothing more than an ordinary statute amenable to subsequent alteration or repeal by another statute.[211] Moreover, according to general principles of statutory interpretation, a later statute could amend an earlier one either by expressly and deliberately doing so, or merely by containing provisions inconsistent with it.[212] Because Industrial Arbitration Act s 6(6) was in fact inconsistent with the relevant provisions of the Constitution Act, this had the effect, it was concluded, of amending the earlier Act by necessary implication. Section 6(6) was therefore a valid provision under which McCawley could be legally appointed.[213]
Couched in this way, the reasoning on both sides was founded upon a shared premise: that the relevant powers of the Queensland Parliament, as well as any limits on those powers, derived entirely from Imperial sources and were subject to principles derived from Imperial law. On the one side, the principle of repugnancy and the paramount force of Imperial laws was used to elevate the provisions of the Constitution Act relating to judicial tenure and salaries to the status of higher law. On the other side, the undoubted capacity of the Queensland Parliament to legislate with respect to the Constitution of Queensland together with the lex posteriori derogat lex anteriori principle was used to affirm the capacity of the Parliament to legislate inconsistently with those provisions.
While the relevant legal texts thus seemed to be capable of sustaining the interpretation adopted by either side, the strength of the arguments depended upon greater emphasis being given to the particular provisions and principles which happened to support each line of reasoning. It was thus quite possible for each side to alter their focus in order to point to anomalies which undermined the other’s argument. For example, Isaacs and Rich JJ and Lord Birkenhead LC were able to draw attention to the legislative history of the Colonial Laws Validity Act to support the conclusion that s 5 was intended to put to rest the kind of argument being made by the other side.[214] However, Griffith CJ, Barton and O’Connor JJ could just as easily point to the later enactment of the Commonwealth Constitution, s 106 of which gave the state Constitutions the force of an Imperial statute.[215] Neither side could claim, therefore, that the relevant texts unequivocally dictated a particular result. It was necessary to appeal to wider considerations and principles.
Legal and constitutional theory, or what the judges referred to as ‘jurisprudence’[216] and the opinions of ‘text-writers’,[217] played a considerable role in the judgments on both sides. In the course of his Honour’s judgment in Cooper, Griffith CJ drew attention to the distinction between ‘fundamental’ and ‘ordinary’ laws, which, while known to ‘jurisprudence’ and perfectly familiar to those governed by a written Constitution, was unlikely to be familiar to English lawyers because no such distinction is drawn in the English Constitution: Parliament is ‘supreme’ and can make any laws it thinks fit.[218] While the point made was mainly analytical, it was cast in terms that implied a certain disparagement of English lawyers, together with their principle of legislative supremacy.
Lord Birkenhead LC, as if deliberately wishing to show that an English lawyer need not be as ignorant as Griffith CJ seemed to suggest, was at pains to demonstrate his familiarity with the analyses of ‘writers upon the subject of Constitutional Law’ on the difference between what his Lordship called ‘controlled’ and ‘uncontrolled’ Constitutions.[219] In so doing, his Lordship may possibly have wished to distance himself from the relatively simplistic and wooden proposition that had been adopted by the Privy Council in Webb v Outtrim:[220] that in Australia, in contrast to the United States, there was no such thing as judicial review, in the sense of courts having jurisdiction to declare statutes constitutionally invalid.[221] In a strongly worded response to Webb v Outtrim, Griffith CJ replied in Baxter v Commissioners of Taxation (NSW)[222] that, while of course no ‘disrespect’ was implied, the Privy Council’s analysis of the Australian Constitutions could be likened to an attempt by an ‘astral intelligence’ to interpret those instruments with the assistance of a ‘dictionary’![223] Privy Councillors, his Honour said, would not necessarily be ‘familiar with the history or conditions of the remoter portions of the Empire’, nor have ‘any sympathetic understanding of the aspirations of the younger communities’.[224] In the context of the issues raised in Webb v Outtrim and Baxter, those aspirations included very specific theories about federalism, constitutionalism and judicial review.[225] Lord Birkenhead LC’s opinion in McCawley v The King seems to have been deliberately calculated to avoid any suggestion that his approach was somehow rigidly technical and without an appreciation for the relevant theoretical and political background.[226]
The idea that the Constitution of Queensland amounted to a kind of fundamental or organic law was particularly prominent in the judgments of Griffith CJ, Barton and O’Connor JJ in Cooper and McCawley v The King.[227] According to their Honours, the Constitution Act both defined and limited the powers of the Queensland Parliament such that state legislation would be valid only insofar as it conformed to the authority conferred by the Constitution of Queensland.[228] In appealing to the concept of fundamental law, the judges invoked a principle of much wider application than the legal rule that Imperial statutes have paramount force. The concept of a fundamental or organic law can be discerned in a wide range of institutions, private and public, ranging from the constitution of a company, to the Constitution of an independent nation-state. For that reason, arguments derived from case law relating to the internal affairs of joint stock companies[229] were deemed to be as relevant to the issues in McCawley’s Case as the principles of constitutional law contained in statutes such as the Colonial Laws Validity Act and the Commonwealth Constitution.[230]
While there were no general philosophical arguments made in favour of a political system of this kind, the judges who supported the fundamental law argument certainly seem to have favoured such a system on wider theoretical grounds. Griffith CJ, Barton and O’Connor JJ clearly felt the question to be one of ‘great and general importance’[231] and insisted that if Queensland were to have a ‘genuine Constitution’ it must be in the nature of a fundamental law.[232] While their Honours could not deny that the Queensland Parliament was ‘supreme’ — in the sense that it had full power to amend the Constitution of Queensland — they concluded that the Constitution must first be altered by an explicit and deliberate amendment before otherwise inconsistent ordinary legislation could be validly enacted.[233] Griffith CJ provided a principled reason for this conclusion when his Honour argued that requiring a formal constitutional amendment would ensure that the general political and legal significance of any proposed constitutional change received the careful attention it deserved within the legislature and among the voting public.[234]
Griffith CJ, Barton and O’Connor JJ, as well as the judges of the Supreme Court, also emphasised the practical and political importance of securing the independence of the judiciary by constitutionally protecting the tenure and salaries of judges.[235] Cooper CJ said that judicial independence was one of the ‘cherished characteristics of the system under which justice is administered throughout our Empire’.[236] Griffith CJ called it a ‘great constitutional principle’.[237] O’Connor J had further suggested that judicial independence existed in order to ‘better secur[e] the rights and liberties of the subject’.[238] Of course, as Isaacs and Rich JJ pointed out, to understand the principle to be entrenched as a matter of fundamental law was to go further than had occurred even in the United Kingdom, where the Act of Settlement and subsequent legislation certainly bound the Crown but did not bind the British Parliament.[239] But Griffith CJ, Barton and O’Connor JJ, as well as Cooper CJ and the other members of the Supreme Court majority, were determined to treat the Constitution of Queensland as a kind of fundamental law which bound not only the government, but also the legislature. In support of this conclusion, Barton J had observed in Cooper that the British Parliament had never attacked the independence of the judiciary and would not even dream of doing so.[240] Similarly, Cooper CJ suggested that no ‘self-respecting Legislature’ would willingly confer upon the executive such ‘extensive powers’ as would enable it to undermine the independence of the courts.[241] Certainly, these observations were expressed as matters of positive political morality, rather than binding constitutional law. But the mere fact that these judges were prepared to conclude that the protection of judicial tenure was a matter of fundamental law shows that the idea of what a ‘self-respecting Legislature’ ought to refrain from doing supported a particular conception about what it must, as a matter of law, refrain from doing. For these judges, the ought of normative constitutional theory underlay the is of positive constitutional law.
While the judgments were silent on this point, the conclusion that the Constitution of Queensland was a kind of fundamental law derived not only from the British concept of the paramount force of Imperial law, but also from the American constitutional tradition, in which written Constitutions function as ‘higher law’ and the courts have jurisdiction to ensure that legislation conforms to it.[242] Griffith CJ and Barton J had favoured many aspects of the American approach to constitutionalism during the debate over the Commonwealth Constitution in the 1890s.[243] As High Court judges, their Honours had also incorporated American principles into their interpretation of the Commonwealth Constitution, particularly in the development of the implied immunities and state reserved powers doctrines.[244] In McCawley’s Case, their Honours applied the same general principles, as far as they could, to the Constitution Act.
Against the argument of fundamental law, Lord Birkenhead LC, as well as Isaacs, Rich and Higgins JJ, were quite prepared to embrace the alternative maxim of parliamentary sovereignty.[245]
According to these judges, there could be no middle ground: the Constitution Act was either fundamental law or an ordinary statute; it was either ‘controlled’ or it was not.[246] Since the Queensland Parliament undoubtedly had power to alter the Constitution of Queensland in any manner which it thought fit, they concluded that the Constitution Act could not be a fundamental law and, as a corollary, the Queensland Parliament was in the position of a quasi-sovereign legislature within its territory.
Admittedly, this commitment to parliamentary sovereignty was most evident in the judgment of Isaacs and Rich JJ. In Cooper, Higgins J altogether avoided what his Honour called the many ‘curious and delicate points’ raised by the arguments about fundamental law and parliamentary sovereignty, deciding the case on the narrow legal ground of statutory interpretation.[247] When in McCawley’s Case it became impossible for his Honour to avoid the issue, Higgins J’s judgment, as well as the opinion delivered by Lord Birkenhead LC for the Privy Council, focused almost entirely on the relevant constitutional provisions and their interpretation, understood in technical legal terms.[248]
By contrast, Isaacs and Rich JJ seemed to favour the case for parliamentary sovereignty, not only as a matter of law, but also as a matter of normative constitutional theory. For example, when their Honours explicitly adopted A V Dicey’s description of the Colonial Laws Validity Act as a ‘charter of colonial legislative independence’,[249] they must have been aware that this would associate the powers granted to the colonial legislatures with Dicey’s famous thesis concerning the sovereignty of the British Parliament. Thus, the question in issue, their Honours said, was whether the ‘Parliaments of Queensland and the other States of this Commonwealth have powers of the noble character broadly framed by the Parliament of the Empire’,[250] or whether their powers ‘are still open to the embarrassing doubts and technical impediments that according to some opinions fettered the legislative action of a colony over half a century ago’.[251] The question, in other words, was whether the Constitution of Queensland ‘affords … ample means for translating the public will into public law’.[252] To impose constitutional constraints upon the Queensland Parliament was a kind of deprivation — the abdication of a power conferred ‘for the benefit of the community’.[253] All of these considerations pointed to the preferability, in their Honours’ view, of a political system in which the legislature is sovereign.
Reflecting, then, upon the approach the courts should take to such questions, Isaacs and Rich JJ cited the opinion of Lord Selborne in R v Burah[254] to the effect that ‘it is not for any Court of justice … to enlarge constructively’ the ‘conditions and restrictions’ which might be imposed upon a colonial legislature by the terms of an Imperial grant.[255] Of course, it was in R v Burah that the Privy Council had described the Indian Parliament as being in possession of ‘plenary powers of legislation, as large, and of the same nature, as those of [the Imperial] Parliament itself’.[256] While Higgins J did not cite R v Burah, his Honour agreed that the courts had ‘no right to give a meaning to the words of the Constitution which the words do not bear in themselves’,[257] even if that is to secure a worthy constitutional goal, such as the protection of judicial independence. Such questions were ‘a matter for the framers of the Constitution.’[258]
In effect, Higgins J appears to have been just about as supportive of the principle of parliamentary sovereignty as were Isaacs and Rich JJ. Like them, Higgins J had exhibited a certain aversion to the various American constitutional principles that had been adopted by Griffith CJ, Barton and O’Connor JJ in their interpretation of the Commonwealth Constitution, and his Honour had displayed a general preference for the principles enunciated by the Privy Council concerning the constitutional status of the British colonies.[259] All of this, of course, foreshadowed the decision that would be made in the landmark Engineers’ Case,[260] in which Isaacs and Rich JJ would soon join and Higgins J concur. Just as the decisions of Griffith CJ, Barton and O’Connor JJ on state constitutional law need to be read with their decisions on the Commonwealth Constitution,[261]
so must the decisions of Isaacs, Rich and Higgins JJ on the state Constitutions be read with their approach to federal constitutional law.[262] The same goes for the Privy Council, whose decision in Webb v Outtrim clearly foreshadowed the position it took in McCawley’s Case.[263]
When delivering the opinion of the Privy Council, Lord Birkenhead LC sought to acknowledge at least some of the considerations which might lead a particular political community to favour the American approach of treating the Constitution as a kind of fundamental law.[264] However, his Lordship explained that the British people had
not in the framing of Constitutions felt it necessary, or thought it useful, to shackle the complete independence of their successors. They have shrunk from the assumption that a degree of wisdom and foresight has been conceded to their generation which will be, or may be, wanting to their successors, in spite of the fact that those successors will possess more experience of the circumstances and necessities amid which their lives are lived.[265]
For this reason, his Lordship continued, the Imperial Parliament had deliberately chosen not to ‘shackle or control’ the legislative powers conferred upon the ‘nascent’ Australian legislatures.[266] Complete legislative powers were conferred in the ‘fully justified’ belief that ‘these young communities would successfully work out their own constitutional salvation’.[267] The Queensland Parliament, his Lordship concluded, is — and seemingly should be — the ‘master of its own household’.[268]
The question, then, for Lord Birkenhead LC, as well as for Isaacs, Rich and Higgins JJ, was whether the Queensland legislature would have sufficient power to govern the community, ‘unshackled’ by constraints imposed by a Constitution which is enforced by the judiciary as a kind of fundamental law. Their concern seems to have been to ensure that the legislature, deciding by ordinary majority, would be free to legislate as it thought fit and, more particularly, possess a ‘sufficiently elastic constitutional means of amendment’ to ensure that the Constitution of Queensland could be kept up to date with the ever-changing requirements of the Queensland community.[269] A commitment to majoritarian legislative supremacy was fundamental to this objective.
If constitutional theory was an essential part of the reasoning on both sides, there was at the same time a distinct limit to the extent to which each theoretical framework provided a coherent theoretical foundation for their respective conclusions.
Lord Birkenhead LC, Isaacs, Rich and Higgins JJ sought to ground the plenary powers of the Queensland Parliament in a series of Imperial statutes — in particular, Colonial Laws Validity Act s 5. But in so doing, they could not dispense altogether with the idea of fundamental law, at least in the form of Imperial law operating in Queensland by paramount force. It was undeniable that the powers, not only of the Commonwealth Parliament, but also of the Parliaments of the Australian states, were limited by Imperial statutes and that the courts certainly had jurisdiction to declare colonial legislation invalid on the ground of repugnancy.
The recognition of the existence of fundamental law in this sense was most clearly articulated by Isaacs J in his judgment in Taylor. As discussed, Isaacs J accepted that the power conferred by Colonial Laws Validity Act s 5 was subject to a number of important ‘fundamental’ constraints: in particular, the ‘representative’ character of the Parliament, the ‘fundamental conception’ of the Crown and the original power contained in cl 22 of the Order in Council.[270] As Barton J later pointed out, Isaacs J had regarded the idea that the Parliament had power to amend or repeal cl 22 as ‘unthinkable’.[271] Although in McCawley’s Case, Isaacs and Rich JJ skirted the issue, Higgins J was also prepared to affirm the idea that cl 22 was in this sense ‘fundamental’.[272] The conclusion that these aspects of the Constitution of Queensland were fundamental was not, however, explicitly required by the provisions of the relevant Imperial instruments. Such a view turned upon the highly contested theoretical question of whether the rule by which sovereign (or sovereign-like) power is conferred upon a particular legislature is itself within the legal competence of that legislature.[273] When examined closely, the conclusion that the representative character of the legislature must be maintained likewise rested upon an interpretation of Colonial Laws Validity Act s 5 which was supported by the conviction that such legislatures should remain democratic.[274]
Similarly, the insistence on the indispensability of the Crown showed that Isaacs J was prepared to postulate certain fundamentals based on a conception of what the Constitution ought to be.[275]
If the difficulty for Isaacs J was to explain how these aspects of the Constitution of Queensland were fundamental when the independence of the judiciary was not, the difficulty for Griffith CJ was to show precisely how the fundamental aspects of the Constitution of Queensland could be distinguished from the ordinary aspects of the statutory law of Queensland. Apart from being contained within a Queensland statute which was labelled ‘constitutional’, there was no formal set of criteria by which constitutional and ordinary provisions within that statute might be distinguished. As Isaacs, Rich and Higgins JJ argued, there was nothing ‘magical’ in the mere label ‘Constitution’, even when affixed to the short title of a particular enactment.[276] Indeed, parts of the Constitution of Queensland were contained in statutes that were not labelled as ‘constitutional’,[277] and there was no single document which could be identified as Queensland’s ‘written Constitution’.[278] The problem, therefore, was how the Constitution of Queensland could be a kind of ‘fundamental law’ despite the fact that it was contained in an ordinary statute susceptible to amendment by ordinary enactment. As Lord Birkenhead LC put it, a polity having both sets of characteristics would be ‘unique in constitutional history’.[279] In a ‘genuinely controlled Constitution’, his Lordship pointed out, it is possible to point to ‘specific articles in the legislative instruments or instruments which created the Constitution, prescribing with meticulous precision the methods by which, and by which alone, it could be altered.’[280] The absence of any such ‘special formality’ in the case of the Constitution of Queensland — its liability to be amended by ordinary statute — meant that the respondents had been driven into ‘dialectical difficulties which are embarrassing and even ridiculous.’[281]
There was a definite limit, therefore, to the claim that Queensland possessed a written Constitution which operated as a kind of fundamental law. Ultimately, the argument rested not upon the derivation of the Constitution of Queensland from ‘the people of Queensland’ or upon some other autochthonous constituent authority, but rather upon its derivation from the Imperial Parliament. This removed one of the leading rationales for the existence of a fundamental law. Written Constitutions that are in nature fundamental laws are usually enacted (and amended) through some special process or institution (for example, a constituent assembly, specially elected convention, referendum or special majority voting rule) which is distinct from the ordinary legislative procedure (for example, a simple majority of both Houses of the legislature). It is a commonplace assumption that the distinction between fundamental and ordinary law is founded upon the difference between the two procedures — one ‘constitutive’ and the other ‘legislative’ — and the idea that a special ‘constituent’ power is responsible for the fundamental law of the Constitution, whereas the ‘constituted’ power of the ordinary legislature itself derives from this prior, constitutive act. But since the Queensland Parliament clearly had power to legislate to amend both the Order in Council and the Constitution Act by ordinary statute, there were no formal criteria that could be used to distinguish ordinary from fundamental or constitutional enactments.
Why, then, did the judges adopt the positions they did in McCawley’s Case? If constitutional theory took them only part of the way, in what sense, and to what degree, were they influenced by wider political conceptions of the province and task of the public institutions of government? To what degree were they influenced by the specific policies of the Labor Government and thus of partisan, political and even personal motives?
A majority of the judges of the Supreme Court certainly appear to have disagreed with many of the policies adopted by the Labor Government. Cooper CJ clearly believed there had been no increase in the work of the Court that necessitated the appointment of additional Justices.[282] Well aware of the fact that McCawley had not worked as a barrister in private practice, his Honour said that a ‘stricter qualification’ would have been preferable — that ‘actual practice in the legal profession’, rather than mere admission, is necessary in order to ‘equip’ a judge for the ‘competent performance of the important and multifarious duties which he will be called upon to discharge’.[283] Even though these comments were directed to the legislation and not to the appointment of McCawley in particular, they cast rather obvious aspersions on McCawley’s competence and qualifications. It is little wonder that McCawley’s personal response to the judgment was to characterise it as ‘strained’, ‘offensive’ and ‘little short of ridiculous’.[284] McCawley also observed that the ‘atmosphere of hostility’ at a ‘political, professional and personal’ level made an adverse result highly predictable.[285]
Underlying the Supreme Court’s conclusions, however, was a particular view of the proper relationship between the Parliament, the executive government, the Supreme Court and the Constitution of Queensland.[286]
The Court was concerned that the legislature had ‘surrendered to the Executive Government power to pack the Supreme Court Bench with any number of Judges which the Executive Government may think fit to appoint’ and ‘to increase indefinitely the charges imposed on the revenues of the State’.[287] If the Government were given an unfettered discretion to commit state revenues to the salaries of additional judges so appointed, the capacity of the Parliament to control Government expenditure would be compromised. Moreover, if the government were able to ‘flood’ or ‘pack’ the Court in this way, the capacity of the Court to act as an independent check upon the executive power would be severely compromised. A ‘less comprehensive’ and a ‘more comprehensible’ interpretation of the legislature’s intention — so as to avoid ‘unthinkable’ consequences such as these — was therefore preferable.[288]
However, the political ideology of the Labor Government suggested a conception of the law and the courts in which law can and should be an instrument of social reform, so long as the power to make, administer and adjudicate upon the law is held by those possessing the ‘appropriate’ knowledge, experience and goodwill.[289]
On this view, the constitutional discipline and restraint imposed by judicial review of legislation might in fact hinder, rather than facilitate, desirable social change. In argument before the Supreme Court, Ryan (who was both Premier and Attorney-General at the time) submitted that in this case artificial constitutional constraints on political power were not necessary because ‘no self-respecting Government would be likely to abuse these extensive powers’.[290] Thus, Ryan was not altogether opposed to the separation of powers.[291]
He certainly thought that the courts should not interfere with matters which were properly the concern of Parliament and the executive government: ‘whether the Act should be upon the Statute Book is a matter for Parliament. Whether the Executive should appoint another Judge is a matter for the Executive; it is not a matter for this Bench.’[292]
The Supreme Court, however, rejected Ryan’s arguments and, by implication, the premises upon which they were based. It replied that ‘no self-respecting Legislature would be willing to confer such powers upon the Executive Government’.[293] Implicit in this reply was the proposition that constitutional constraints on governmental power are designed to prevent an abuse of power, in particular by the executive government. In concluding that the Constitution of Queensland could only be amended or repealed by a deliberate and explicit enactment to that effect, the Court determinedly imposed a constitutional constraint upon a legislature which had been gripped, it thought, by ‘an almost feverish anxiety’.[294]
Reflecting, perhaps, on some of the more intemperate observations of the Supreme Court, Isaacs and Rich JJ in the High Court asserted that a judge must not assume that anything ‘absurd or unjust’ is intended by the legislature, and that a judge certainly has no right to ‘brand as absurd or unjust any policy which he personally might not approve.’[295] However, this did not prevent members of the High Court from making a number of observations of a noticeably personal and partisan nature. Like Cooper CJ before him, Griffith CJ doubted, for example, whether McCawley possessed the necessary qualifications for appointment as a judge, characterising McCawley as a ‘mere clerk’.[296] Likewise, during argument, Barton and Gavan Duffy JJ described the Queensland Arbitration Court deprecatingly as a kind of ‘drafting area’[297] and a ‘sort of incubator’,[298] for prospective Supreme Court appointees. By contrast, Higgins J clearly thought that there was good reason for appointment of judges from the Queensland Arbitration Court to the Supreme Court[299] and, notably, his Honour alone concluded that McCawley’s appointment to the Supreme Court was not limited to that time during which he continued to hold office as a judge or President of the Queensland Arbitration Court.[300] Higgins J’s personal, professional and ideological sympathy for McCawley’s position is understandable, given that his Honour held the equivalent federal positions of both President of the Queensland Arbitration Court and High Court judge. However, his Honour’s private correspondence with McCawley over these very matters casts a rather dark shadow over his willingness to sit and hear the case.[301]
In this context, Ryan, Theodore and McCawley could certainly be forgiven for thinking that the ‘constitutional’ opposition that they encountered in the courts was, at base, politically motivated.[302] Just as clearly, however, their opponents could point to the way in which the theory of parliamentary sovereignty favoured by Isaacs, Rich and Higgins JJ facilitated the political objectives of the Labor Government. What, then, of the supposed neutrality of the Constitution of Queensland as embodying the fundamental ground rules upon which all sides of politics might agree? In rejecting revolutionary methods, the Fabians had certainly embraced the potential of parliamentary and legal methods to achieve social justice objectives. But this did not mean an acceptance of the constitutional status quo. Instead, it meant reform of a wide range of constitutional fundamentals, such as the electoral system and the Legislative Council. In McCawley’s Case, it also meant a rejection of the ‘fundamental law’ theory that had been advanced by Griffith CJ, Barton and O’Connor JJ.
It would not have been an easy matter, however, for the Labor Government to initiate an amendment to the Constitution Act separately and prior to the passage of the Industrial Arbitration Act. Passage of the latter Act had proved difficult enough, particularly given the determined opposition of the Legislative Council. Yet, as Griffith CJ suggested, a deliberate and explicit alteration to the Constitution Act would have brought the issues of constitutional principle to the forefront of public and parliamentary debate. A debate of this kind would have enabled opponents to argue, with some force, that the constitutional protection of the independence of the judiciary was very much at stake. The terms of debate could thus have become more clearly constitutional in character, abstracted from the immediate implications for partisan politics.
It is tolerably clear, then, that the legal conclusions adopted by the judges tended to correspond generally to their respective personal, partisan and ideological commitments. Indeed, while the decision of the Privy Council was free of any explicit suggestion of a ‘political’ interest in the outcome, it could be said that Lord Birkenhead LC’s sympathy for moderate social reform within the frame of Conservative Party politics[303]
was at least compatible with the conclusion that the Parliament of Queensland should be ‘master of its own household’.[304] But can the reasoning of the judges be reduced to expressions of personal preference, partisan commitment and ideological bias? What was the basis for the decision?
While a definitive answer to this question will probably remain elusive, it seems to be at least arguable that the critical ground of the decision was neither purely legal, nor reductively political, but lay somewhere between these two poles — at the point of contact, as it were, between fundamental constitutional theory on one hand and fundamental political philosophy on the other. In other words, the case was ultimately decided in terms of contrasting theories of a ‘politico-constitutional’ nature. As Sir Owen Dixon once observed:
An inquiry into the source whence the law derives its authority in a community, if prosecuted too far, becomes merely metaphysical. But if a theoretical answer be adopted by a system of law as part of its principles, it will not remain a mere speculative explanation of juristic facts. It will possess the capacity of producing rules of law.[305]
The decision in McCawley’s Case to opt for either fundamental law or parliamentary sovereignty seems ultimately to have turned on a conception of what ‘constitutional law’ ought to be.[306] Is it a ‘fundamental law’ that limits the power of the legislature, or is it, at base, merely a ‘positive law’ ultimately derived from the legislature? A choice between these two conceptions has to be made. And at this point, abstract political theory provides some important guidance. In politico-constitutional terms, the question can be reformulated as: should constitutional law be seen principally as a facilitator of social and economic reform, ultimately controlled and directed by a popularly elected legislature, or should it be conceived primarily as a means by which governmental and legislative power is controlled, so that a sphere of private freedom can be maintained? Abstract political theory — along either social democratic or liberal lines — can in this way provide a reason for opting for one conception of constitutional law over another.
Thus, the decision seems to have turned upon competing conceptions of what it meant for Queensland to be a ‘self-governing community’.[307] While all agreed that the mark of a self-governing community was that it would be fully able to determine the shape of its own Constitution,[308] there were different views of what it meant for a community to possess this kind of self-constituting power. According to Lord Birkenhead LC, as well as Isaacs, Rich and Higgins JJ, constituent power is and ought to be vested in the Queensland Parliament, and constituent power, by its very nature, cannot be limited by constitutional law.[309] However, Griffith CJ, Barton and O’Connor JJ maintained that there must be a constituent power lying behind the Constitution of Queensland more fundamental than the legislature, and their ultimate reason for this was, quite bluntly, that they favoured the conception of the Constitution as a kind of fundamental law.[310] Thus, the political question of what it meant to be a self-governing community returned, ultimately, to a constitutional question about the nature and location of constituent power.
Almost 30 years earlier, at the Federal Convention of 1891, Griffith had himself articulated a conception of what that constituent power might be. During debate over the terms of the proposed Constitution for an Australian federation, Griffith expressed the wish that the Australian colonies might some day adopt the ‘American theory’ that ‘all constitutions are the act of the individual members of the community, and that they delegate their power to the legislature, and that that legislature can only work within the authority given to it.’[311] It is significant that Griffith’s remarks were made in the context of the debate over what would eventually become the Commonwealth Constitution s 51(xxxviii).[312] The framers of the Commonwealth Constitution were at the time conscious that some provision would have to be made for the exercise, within Australia, of the fundamental legislative powers exercisable by the Imperial Parliament. While the ultimate decision on s 51(xxxviii) would be to confer upon the Commonwealth and state Parliaments the capacity to exercise those powers, Griffith was acutely aware of the limitations of such a provision. Griffith acknowledged, in particular, that the English approach had in fact been adopted in the Australian colonies, for the Parliaments had power to alter their own Constitutions.[313] But he appears to have been rather hostile to the legislative sovereignty that this implied, and he emphasised, at least, that in exercising their powers, the colonies could not go so far as to renounce their allegiance to the Crown.[314]
When Griffith CJ’s judgments in Cooper and McCawley v The King are assessed in this light, it appears that his Honour was striving to interpret the Constitution of Queensland in a manner that came as close as possible to embodying the ‘American’ theory of popular sovereignty. While his Honour could not actually assert that the people of Queensland had established the Constitution of Queensland by virtue of their fundamental constitutiv