Allan, James; Aroney, Nicholas --- "An Uncommon Court: How the High Court of Australia has Undermined Australian Federalism" [2008] SydLawRw 15; (2008) 30(2) Sydney Law Review 245
[♦] Garrick Professor of Law, TC Beirne School of Law, The University of Queensland.
[∗] Reader in Law, TC Beirne School of Law, The University of Queensland. Our thanks to Jeff Goldsworthy, Grant Huscroft, Greg Taylor, George Williams, George Winterton and two anonymous referees for their comments on an earlier version of this article, as well as to Belinda McRae for her research assistance.
[1] New ed, 1969 (First published 1935).
[2] New South Wales v Commonwealth [2006] HCA 52; (2006) 229 CLR 1 (‘Work Choices’).
[3] Huddart, Parker & Co Pty Ltd v Moorehead [1909] HCA 36; (1909) 8 CLR 330 (‘Huddart, Parker’) at 388 (Isaacs J); Amalgamated Society of Engineers v Adelaide Steamship Co Ltd [1920] HCA 54; (1920) 28 CLR 129 (‘Engineers’) at 142 (Knox CJ, Isaacs, Rich & Starke JJ).
[4] Compare Russell L Mathews & William R C Jay, Federal Finance: Intergovernmental Financial Relations in Australia since Federation (1972); Cliff Walsh, ‘Federalism Australian-Style: Towards Some New Perspectives’ in Geoffrey Brennan, Bhajan Grewal & Peter Groenewegen (eds), Taxation and Fiscal Federalism: Essays in Honour of Russell Mathews (1988) 222; Brian Galligan & Cliff Walsh, ‘Australian Federalism: Developments and Prospects’ (1990) 20(4) Publius: The Journal of Federalism 1 at 7–13; Neil Warren, ‘Benchmarking Australia’s Intergovernmental Fiscal Arrangements: Final Report’ (New South Wales Government, 2006); Anne Twomey & Glenn Withers, ‘Australia’s Federal Future: Delivering Growth and Prosperity’ (Council for the Australian Federation, 2007) at 26–7, 34–9.
[5] See Brian Galligan, A Federal Republic: Australia’s Constitutional System of Government (1995); Brian Galligan, A Federal Republic: Australia’s Constitutional System of Government (1995), ch 9; David Meale, ‘The History of the Federal Idea in Australian Constitutional Jurisprudence: A Reappraisal’ (1992) 8 Australian Journal of Law and Society 25.
[6] See Work Choices [2006] HCA 52; (2006) 229 CLR 1.
[7] See Commonwealth v Tasmanian Dam (‘Tasmanian Dam’) [1983] HCA 21; (1983) 158 CLR 1. See, also, Sir Harry Gibbs, ‘Address Launching UTAC Vol. 1’ (1993) 3 Upholding the Australian Constitution at 135, 137 where he characterises this case as having the effect of deleting the words ‘external affairs’ and substituting ‘anything’.
[8] See South Australia v Commonwealth [1942] HCA 14; (1942) 65 CLR 373 (‘First Uniform Tax’).
[9] There is an extensive literature on this question. For a sample, see R D Lumb, ‘The Franklin Dam Decision and The External Affairs Power: A Comment’ [1984] UQLawJl 3; (1984) 13 University of Queensland Law Journal 138; Gregory Craven, ‘The States—Decline, Fall or What?’ in Gregory Craven (ed), Australian Federalism: Towards the Second Century (1992) ; Harry Gibbs, ‘The Decline of Federalism?’ [1994] UQLawJl 1; (1994) 18 University of Queensland Law Journal 1; Geoffrey de Q Walker, ‘The Seven Pillars of Centralism: Engineers’ Case and Federalism’ (2002) 76 Australian Law Journal 678; Leslie Zines, ‘Changing Attitudes to Federalism and its Purpose’ in Robert French, Geoffrey Lindell & Cheryl Saunders (eds), Reflections on the Australian Constitution (2003) 86; George Winterton, ‘The High Court and Federalism: A Centenary Evaluation’ in Peter Cain (ed), Centenary Essays for the High Court of Australia (2004) 197.
[10] It is quite possible that Sir Isaac Isaacs foresaw the potential for interpreting the Constitution in a pro-federal manner from the beginning, so long as the High Court’s interpretive approach could be separated from the framer’s original intentions and understandings.
[11] This is not to deny that some well-known federalism cases went against the Commonwealth, such as the Communist Party Case (The Communist Party v The Commonwealth [1951] HCA 5; (1951) 83 CLR 1), the Bank Nationalisation Case (Bank of New South Wales v The Commonwealth [1948] HCA 7; (1948) 76 CLR 1), the State Banking Case (Melbourne Corporation v The Commonwealth [1947] HCA 26; (1947) 74 CLR 31) and the Incorporation Case (New South Wales v The Commonwealth (1990) 169 CLR 482), nor that s 51 was in part a ground for these decisions. The point is that the general trend has undeniably been in the Commonwealth’s favour.
[12] For comparative studies which have recognised the particularly centralist orientation of Australian federalism as it has become, see Daniel J Elazar, Federal Systems of the World: A handbook of federal, confederal and autonomy arrangements (2nd ed, 1994) at 19–25; Ronald L. Watts, Comparing Federal Systems (2nd ed, 1999) at 25, 39, 46; John M. Williams & Clement Macintyre, ‘Commonwealth of Australia’ in Akhtar Majeed, Ronald Lampman Watts & Douglas M Brown (eds), Distribution of Powers and Responsibilities in Federal Countries (2006) 8, 23–4; Thomas O Hueglin & Alan Fenna, Comparative federalism: A systematic inquiry (2006) at 165–6, 309–11; Greg Taylor, Characterisation in Federations: Six Countries Compared (2006) at 17–20.
[13] See Alan C Cairns, ‘The Judicial Committee and Its Critics’ (1971) 4(3) Canadian Journal of Political Science 301; Christopher Gilbert, Australian and Canadian federalism 1867-1984: A study of judicial techniques (1986); Bruce W Hodgins, Federalism in Canada and Australia: Historical perspectives: 1920-1988 (1989); Nicholas Aroney, ‘Formation, Representation and Amendment in Federal Constitutions’ (2006) 54(1) American Journal of Comparative Law 277, 291–8.
[14] See Donald Kommers, The Constitutional Jurisprudence of the Federal Republic of Germany (2nd ed, 1997).
[15] See cases and articles cited below nn72–73, 75.
[16] For a defence of this view in relation to the Australian Constitution, see Nicholas Aroney, Freedom of Speech in the Constitution (1998), ch 2.
[17] Some jurisdictions might even lay down, in vague, amorphous but emotively stirring terms, a set of individual rights, though one of us is a strong critic of bills of rights and believes the decision to forswear one here in Australia was a wise one. See, for instance, James Allan in: ‘Bills of Rights and Judicial Power — A Liberal’s Quandary?’ (1996) 16 Oxford Journal of Legal Studies 337; Sympathy and Antipathy: Essays Legal and Philosophical (2002); ‘Rights, Paternalism, Constitutions and Judges’ in Grant Huscroft & Paul Rishworth (eds), Litigating Rights: Perspectives from Domestic and International Law (2002); ‘Oh That I Were Made Judge in the Land’ (2002) 30 Federal Law Review 561; ‘Paying for the Comfort of Dogma’ [2003] SydLawRw 4; (2003) 25 Sydney Law Review 63; ‘A Modest Proposal’ (2003) 23 Oxford Journal of Legal Studies 197; ‘An Unashamed Majoritarian’ (2004) 27 Dalhousie Law Journal 537; ‘Portia, Bassanio or Dick the Butcher? Constraining Judges in the Twenty-First Century’ (2006) 17 King’s College Law Journal 1; ‘Thin Beats Fat Yet Again — Conceptions of Democracy’ (2006) 25 Law & Philosophy 533.
[18] We simplify things here to a certain extent. For more detail see Aroney, above n13; John Kincaid & G Alan Tarr, Constitutional Origins, Structure, and Change in Federal Countries (2005).
[19] See Philip A Joseph, Constitutional and Administrative Law in New Zealand (2nd ed, 2001).
[20] Larry Alexander (ed), Constitutionalism: Philosophical Foundations (1998) at 4. See too Richard Kay, ‘American Constitutionalism’ in Larry Alexander (ed), Constitutionalism: Philosophical Foundations (1998) at 16.
[21] Frederick Schauer, ‘Judicial Supremacy and the Modest Constitution’ (2004) 92 California Law Review at 1045, 1046.
[22] Antonin Scalia, A Matter of Interpretation (1997) at 40–41.
[23] Schauer, above n21 at 1045.
[24] A rather Whiggish set of presuppositions about the inevitability of societal progress seems to be assumed by this view.
[25] Edwards v Canada (Attorney-General) [1929] UKPC 86; [1930] AC 124 at 136 (‘Edwards’) (Lord Sankey).
[26] Al-Kateb v Godwin [2004] HCA 37; (2004) 219 CLR 562 at 643 (Kirby J).
[27] Ministry of Transport v Noort [1992] NZLR 260 at 271 (Cooke P).
[28] We here have in mind the amendment history of common law countries such as Australia, Canada and the United States. Other constitutions, such as the Swiss — a constitution that does not have judicial review of federal legislation, but protects the interests of its constituent cantons through much more directly democratic mechanisms, including the referendum — have been amended much more regularly. See Nicolas Schmitt, Federalism: The Swiss Experience (1996) at 46–8, 61–3, 155–7.
[29] Of course it may be pointed out in response that ordinary citizens do not have all that much real influence over elected politicians. But on any analysis, they have more influence over elected politicians than over unelected judges. This is our point. Those readers so inclined can read this point with whatever degree of qualification they tend to bring to their understanding of representative democracy.
[30] Unlike the special majorities of State legislatures or conventions required under the United States Constitution and the special majorities and unanimity required under the Canadian Constitution, the Australian Constitution requires simple majorities of the voters of the States and the voters of the entire Commonwealth. Most of the many failed amendment proposals in Australia have not been due to the dual majority requirement but simply because a simple majority of Australian voters — whatever their reasons — did not wish to ratify the proposed amendment. And, notably, many of the failed proposals involved either an increase in Commonwealth legislative power or the insertion of Bill of Rights-type provisions.
[31] Not for them the nebulous ‘constitutions are about articulating and crystallising rather amorphous values and then leaving it to the judges to tell us what the ramifications of this ‘living tree’ we have planted might be’! See Edwards [1929] UKPC 86; [1930] AC 124 at 136 (Lord Sankey).
[32] It is certainly the view of one us. See Allan, ‘A Defence of the Status Quo’; ‘Portia, Bassanio or Dick the Butcher’, above n17.
[33] R v Kirby; Ex parte Boilermakers’ Society of Australia [1956] HCA 10; (1956) 94 CLR 254 at 267–8. See also AV Dicey, Introduction to the Study of the Law of the Constitution (8th ed, 1920) at 134–67, 476–480, discussed in Nicholas Aroney, ‘A Commonwealth of Commonwealths: Late Nineteenth-Century Conceptions of Federalism and Their Impact on Australian Federation, 1890-1901’ (2002) 23(3) Journal of Legal History 253 at 273–6.
[34] The strategic importance of interpretive literalism in Australian federalism cases has been noted in LJM Cooray & Suri Ratnapala, ‘The High Court and the Constitution - Literalism and Beyond’ in Greg Craven (ed), The Convention Debates 1891-1898; Commentaries, Indices and Guide (1987) vol 6, 203; Gregory Craven, ‘The Crisis of Constitutional Literalism in Australia’ in H P Lee & George Winterton (eds), Australian Constitutional Perspectives (1992); Gregory Craven, ‘More Cracks in the Façade of Literalism: Is there an Engineer in the House?’ [1992] MelbULawRw 2; (1992) 18 Melbourne University Law Review 540. On the related theme of interpretative legalism in Australia, see Jeffrey Goldsworthy, ‘Australia: Devotion to Legalism’ in Jeffrey Goldsworthy (ed), Interpreting Constitutions: A Comparative Study (2006) 106.
[35] Engineers [1920] HCA 54; (1920) 28 CLR 129 at 142 (Knox CJ, Isaacs, Rich & Starke JJ).
[36] See Nicholas Aroney, ‘Constitutional Choices in the Work Choices Case, or What Exactly is Wrong with the Reserved Powers Doctrine?’ (2008) 32 Melbourne University Law Review (forthcoming).
[37] Purposive interpretation is now mandated by the Acts Interpretation Act 1901 (Cth) s 15AA and similar State legislation. See DC Pearce and RS Geddes, Statutory Interpretation in Australia (6 ed, 2006) at 25.
[38] See Richard Kay, ‘Original Intentions, Standard Meanings and the Legal Character of the Constitution’ (1989) 6 Constitutional Commentary 39; Richard Kay, ‘Adherence to the Original Intentions in Constitutional Adjudication: Three Objectives and Responses’ (1988) 82 Northwestern University Law Review 226; Jeffrey Goldsworthy, ‘Implications in Language, Law and the Constitution’ in Geoffrey Lindell (ed), Future Directions in Australian Constitutional Law: Essays in Honour of Professor Leslie Zines (1994) 150; Jeffrey Goldsworthy, ‘Originalism in Constitutional Interpretation’ [1997] FedLawRw 1; (1997) 25 Federal Law Review 1; Jeffrey Goldsworthy, ‘Interpreting the Constitution in its Second Century’ [2000] MelbULawRw 27; (2000) 24 Melbourne University Law Review 677.
[39] Engineers [1920] HCA 54; (1920) 28 CLR 129 at 148–154 (Knox CJ, Isaacs, Rich & Starke JJ), 161–2, 165 (Higgins J).
[40] See James Allan, ‘Constitutional Interpretation v. Statutory Interpretation: Understanding the Attractions of “Original Intent” ’ (2006) 6 Legal Theory 109. Furthermore, when a statute is given a meaning — is interpreted — by the unelected judges, that meaning can be overturned by the elected legislature. The statute can be amended by the normal 50 percent plus one procedure.
[41] Scalia (above n22) and Allan (above n40) both argue that approaches to interpreting statutes and constitutions can differ, and should differ. For instance, one can be against purposive interpretation when it comes to statutes (because it gives judges too much interpretive power) while being in favour of some form of originalism as regards constitutional provisions (because this is the best option for minimising judicial adventurism, in this different context).
[42] In Canada’s case, the ‘freedom of expression’ right can be limited by laws which the judges deem to be reasonable and justifiable (see Canadian Charter of Rights and Freedoms, s 1). Of course in the US this is implicit. Canada’s two-step process (identify the right then ask if limits on it are reasonable) is simply rolled up into a single step in the US. But rights are no more treated as absolutes there than in Canada. See Allan, above n17.
[43] Jeremy Waldron, Law and Disagreement (1999) at 83–84.
[44] [1992] USSC 99; 505 US 377 (1992).
[45] [1990] INSC 224; [1990] 3 SCR 697.
[46] [1964] USSC 40; 376 US 254 (1964).
[48] [2000] NZCA 95; [2000] 3 NZLR 385.
[49] [2001] 2 AC 127.
[50] Buckley v Valeo [1976] USSC 24; 424 US 1 (1976); Harper v Canada (Attorney General) [2004] 1 SCR 827.
[51] See Sauve v Canada (Chief Electoral Officer) [2002] 3 SCR 519, a 5–4 decision of the Supreme Court of Canada.
[52] See Halpern v Canada (Attorney General) (2003) 65 OR (3d) 161 and Quilter v Attorney-General [1997] NZCA 207; [1998] 1 NZLR 523.
[53] Consider RJR-MacDonald v Canada [1995] 3 SCR 199 and Canada (Attorney General) v JTI-Macdonald Corp [2007] SCC 30.
[54] Waldron, above n43 at 145.
[55] See Allan, above n40, for an argument that it does make sense in that context (though, also, that it involves an implicit sort of reliance on originalism even there).
[56] Although note the implied freedom of political communication which the High Court ‘discovered’ to be ‘necessarily implied’ by the Australian Constitution in Australian Capital Television Pty Ltd v Commonwealth [1992] HCA 45; (1992) 177 CLR 106 and Nationwide News Pty Ltd v Wills [1992] HCA 46; (1992) 177 CLR 1, and later revised in Lange v Australian Broadcasting Corporation [1997] HCA 25; (1997) 189 CLR 520. The implied freedom gives the High Court similar interpretive freedom. For a critical discussion, see Aroney, above n16 and, more recently, Nicholas Aroney, ‘Justice McHugh, Representative Government and the Elimination of Balancing’ [2006] SydLawRw 23; (2006) 28 Sydney Law Review 505.
[57] Engineers [1920] HCA 54; (1920) 28 CLR 129 at 142, 148–9 (Knox CJ, Isaacs, Rich & Starke JJ).
[58] Indeed, it could be said that, while judges interpreting Bills of Rights have almost universally thought that no right can be absolute but must be ‘balanced’ against competing public goals, the High Court of Australia has chosen to exercise its discretion by reading federal heads of legislative power in absolute terms, without any significant concern to maintain a ‘balance’ between the Commonwealth and the States. Thus, on textual literalist grounds, the High Court in the Work Choices case emphatically rejected any appeal to ‘federal balance’. See Work Choices [2006] HCA 52; (2006) 229 CLR 1 at 56, 57, 59. See also Attorney-General (WA) v Australian National Airlines Commission [1976] HCA 66; (1976) 138 CLR 492 at 530 (Murphy J); Commonwealth v Tasmanian Dam [1983] HCA 21; (1983) 158 CLR 1 at 129 (Mason J).
[59] Compare Nicholas Aroney, ‘A Seductive Plausibility: Freedom of Speech in the Constitution’ [1995] UQLawJl 6; (1995) 18 University of Queensland Law Journal 249, citing United States v 12 200-Ft. Reels of Film [1973] USSC 162; 413 US 123 (1973) at 127 (Burger CJ) (‘The seductive plausibility of single steps in a chain of evolutionary development of a legal rule is often not perceived until a third, fourth, or fifth "logical" extension occurs. Each step, when taken, appeared a reasonable step in relation to that which preceded it, although the aggregate or end result is one that would never have been seriously considered in the first instance.’)
[60] Commonwealth v Tasmanian Dam [1983] HCA 21; (1983) 158 CLR 1.
[61] Lumb, ‘Franklin Dam Decision’, above n9.
[62] Work Choices [2006] HCA 52; (2006) 229 CLR 1.
[63] Gregory Craven, ‘How the High Court failed us’, Australian Financial Review (24 November 2006) at 81; ABC Radio National, ‘Work Choices Shipwreck’, Perspective, 6 December 2006.
[64] The voting system for the upper house Senate is single transferable vote (STV) unlike the preferential or alternate transferable voting system used for lower house elections. The move in 1984 of allowing 12 rather than only 10 Senators per State has made it more difficult for any one party to control the Senate. The basic reason is this. Half of all Senators must contest each election (their terms being 6 years and general elections being mandated every 3 years). Under STV it is harder to win 4 of 6 State spots than it is to win 3 of 5.
[65] First Uniform Tax [1942] HCA 14; (1942) 65 CLR 373; Victoria v Commonwealth [1957] HCA 54; (1957) 99 CLR 575.
[66] Attorney-General (Vic) (ex rel Dale) v Commonwealth [1945] HCA 30; (1945) 71 CLR 237; Victoria v Commonwealth [1975] HCA 52; (1975) 134 CLR 338.
[67] Deputy Commissioner of Taxation v W R Moran Pty Ltd [1939] HCA 27; (1939) 61 CLR 735.
[68] Tasmanian Dam [1983] HCA 21; (1983) 158 CLR 1. Again, there are different judicially-expressed views on how closely the Commonwealth must implement the terms of the relevant treaty. See Richardson v Forestry Commission [1988] HCA 10; (1988) 164 CLR 261; Queensland v Commonwealth [1989] HCA 36; (1989) 167 CLR 232; Victoria v Commonwealth (1996) 187 CLR 416.
[69] Work Choices [2006] HCA 52; (2006) 229 CLR 1.
[70] ABC Radio National, ‘The Workchoices case’, Law Report, 21 November 2006.
[71] Particularly through its capacity to pre-empt State laws under the ‘covering the field’ doctrine, first enunciated by Isaacs J in Clyde Engineering Co Ltd v Cowburn (1926) 37 CLR 466 and affirmed by the Court in Ex parte McLean [1930] HCA 12; (1930) 43 CLR 472.
[72] See, in particular, United States v Lopez [1995] USSC 42; 514 US 549 (1995); Printz v United States 5 21 US 898 (1997).
[73] See, eg, Wickard v Filburn [1942] USSC 142; 317 US 111 (1942); United States v Darby [1941] USSC 49; 312 US 100 (1941). For a general discussion see Edward S Corwin, ‘The Passing of Dual Federalism’ (1950) 36 Virginia Law Review 1; William Van Alstyne, ‘The Second Death of Federalism’ (1985) 83 Michigan Law Review 1709.
[74] Compare US Constitution Art. I, s 8 with Australian Constitution s 51.
[75] See Herbert Wechsler, ‘The Political Safeguards of Federalism: The Role of the States in the Composition and Selection of the National Government’ (1954) 54 Columbia Law Review 543; Larry D Kramer, ‘Putting the Politics Back into the Political Safeguards of Federalism’ (2000) 100 Columbia Law Review 215. Although compare Steven G Calabresi, ‘ “A Government of Limited and Enumerated Powers”: In Defense of United States v. Lopez’ (1995) 94 Michigan Law Review 752; John Yoo, ‘The Judicial Safeguards of Federalism’ (1997) 70 Southern California Law Review 1311; Ernest A Young, ‘The Rehnquist Court’s Two Federalisms’ (2004) 83 Texas Law Review 1.
[76] See Thomas O Hueglin & Alan Fenna, Comparative federalism: A systematic inquiry (2006) at 233–4, 321–4.
[77] Warren, above n 4, 78–9.
[78] See Wolf Linder, Swiss Democracy: Possible Solutions to Conflict in Multicultural Societies (1994); Schmitt, above n28.
[79] See Basic Law for the Federal Republic of Germany, Arts 73, 74.
[80] See Arthur B Gunlicks, The Länder and German federalism (2003). This is not to suggest that there is no disquiet in Germany: see, for example, Arthur Gunlicks, ‘German Federalism Reform: Part One’ (2007) 8(1) German Law Journal 111.
[81] The Provinces are not equally represented in the Canadian Senate and, more significantly, Senators are appointed by the Federal government. See Canadian Constitution, ss 22, 24.
[82] See Patrick J Monahan, ‘At Doctrine’s Twilight: The Structure of Canadian Federalism’ (1984) 34 University of Toronto Law Journal 47.
[83] See Cairns, above n13.
[84] See Bruce Ryder, ‘The Demise and Rise of the Classical Paradigm’ (1991) 36 McGill Law Journal 309; Martha A Field, ‘The Differing Federalism of Canada and the United States’ (1992) 55 Law and Contemporary Problems 108.
[85] For more detail, see Nicholas Aroney, The Constitution of a Federal Commonwealth: The Making and Meaning of the Australian Constitution (2008) (forthcoming).
[86] Australian Constitution s 7.
[87] See Brian Galligan & James Warden, ‘The Design of the Senate’ in Gregory Craven (ed), The Convention Debates, 1891-1898: Commentaries, Indices and Guide (1987) vol 6, 89.
[88] Australian Constitution s 53.
[89] See Geoffrey Sawer, Australian Federal politics and law 1901-1929 (1956).
[90] Harry Evans and J R Odgers, Odgers’ Australian Senate Practice (11th ed, 2004), ch 4.
[91] Id, ch 1, Table 1.
[92] See, eg, Australian Constitution s 94.
[93] See Cheryl Saunders, ‘The Hardest Nut to Crack’ in Greg Craven (ed), The Convention Debates 1891-1898: Commentaries, Indices and Guide (1987) 149.
[94] New South Wales v Commonwealth [1908] HCA 68; (1908) 7 CLR 179.
[95] See Cheryl Saunders, ‘The Uniform Income Tax Cases’ in H P Lee and George Winterton (eds), Australian Constitutional Landmarks (2003) 62.
[96] See above n66.
[97] See above n67.
[98] See above n4, n5.
[99] See Brian Dollery, ‘A Century of Vertical Fiscal Imbalance in Australian Federalism’ (2002) 36 History of Economics Review 26; Warren, above n4.
[100] See, for example, Official Report of the National Australasian Convention Debates, Adelaide (1897), 29 (Baker), 41–2 (Turner), 175 (Isaacs), 245 (Fysh), 271 (Reid), 318 (Gordon), 338 (Cockburn), 377 (Barton). For a discussion, see Aroney, above n85, chs 9 and 10.
[101] See, eg, Official Report of the National Australasian Convention Debates, Sydney (1891), 698 (Clark); Convention Debates, Adelaide (1897) at 24–5 (Barton), 115 (Wise), 129 (Symon), 272 (Reid), 336 (Trenwith), 369 (Barton), 937 (Dobson), 938 (Downer), 940 (Kingston), 950–51 (Symon), 952–3 (Barton), 953 (Higgins), 956 (Downer, Cockburn); Official Report of the National Australasian Convention Debates, Melbourne (1898) at 268 (Barton), 271 (Symon), 272 (Kingston), 275 (Downer), 279 (Higgins), 286 (O’Connor), 289 (Isaacs) 291 (Downer).
[102] See, eg, Convention Debates, Sydney (1891) at 523–5, 781, 699–701 (Griffith), 698–9 (Inglis Clark); Convention Debates, Adelaide (1897), 767 (Holder), 769 (Carruthers), 770 (Deakin), 772 (Cockburn), 774 (Reid), 776–7 (Carruthers), 779 (Symon), 786 (Wise), 788, 790 (Symon), 792 (Braddon), 793–4 (Barton); Official Record of the National Australasian Convention Debates, Sydney (1897) at 1046 (Curruthers), 1077 (O’Connor), 1078–9 (Wise); Convention Debates, Melbourne (1898) at 11 (McMillan), 24 (Trenwith), 28 (Downer), 213–14 (Barton).
[103] Convention Debates, Adelaide (1897) at 17, 395. This echoed the view of Samuel Griffith that the ‘essential’ and ‘preliminary’ condition of federation was that ‘the separate states are to continue as autonomous bodies, surrendering only so much of their powers as is necessary to the establishment of a general government to do for them collectively what they cannot do individually for themselves, and which they cannot do as a collective body for themselves.’ See Convention Debates, Sydney (1891) at 31–32; and compare Samuel Griffith, Notes on Australian Federation: Its Nature and Probable Effects (1896) at 6–7, 10.
[104] Compare, eg, Convention Debates, Sydney (1891) at 201 (Cockburn); Convention Debates, Melbourne (1898) at 502–4, 596–7, 600, 1008–10 (Barton), 504–5 (Symon). For more detail, see Aroney, above n85, chs 7 and 8.
[105] Griffith and Barton were acknowledged ‘leaders’ of the Conventions of 1891 and 1897–8 respectively, and O’Connor one of Barton’s closest associates.
[106] Tasmania v Commonwealth [1904] HCA 11; (1904) 1 CLR 329 at 333 (Griffith CJ), 350–55 (Barton J), 358 (O’Connor J).
[107] See, in particular, the judgments of Griffith CJ in Federated Amalgamated Governmental Railway and Tramway Service Association v New South Wales Railway Traffic Employees Association [1906] HCA 94; (1906) 4 CLR 488 (‘Railway Servants case’) and Baxter v Commissioners of Taxation (NSW) [1907] HCA 76; (1907) 4 CLR 1087.
[108] Official Record of the Proceedings and Debates of the Australasian Federation Conference (1890) at 106, 108, 110, 133–8.
[109] Australian Constitution ss 106, 107.
[110] For example, s 90 of the Australian Constitution, which provides that the power to impose duties of customs and excise is exclusive to the Commonwealth.
[111] D’Emden v Pedder [1904] HCA 1; (1904) 1 CLR 91; Railway Servants [1906] HCA 94; (1906) 4 CLR 488; Baxter v Commissioners of Taxation (NSW) [1907] HCA 76; (1907) 4 CLR 1087.
[112] Peterswald v Bartley [1904] HCA 21; (1904) 1 CLR 497; Attorney–General (NSW) v Brewery Employees’ Union of New South Wales [1908] HCA 94; (1908) 6 CLR 469 (‘Union Label Case’); R v Barger [1908] HCA 43; (1908) 6 CLR 41; Huddart, Parker [1909] HCA 36; (1909) 8 CLR 330.
[113] For more detail, see Nicholas Aroney, ‘The Griffith Doctrine: Reservation and Immunity’ in Michael White & Aladin Rahemtula (eds), Queensland Judges on the High Court (2003); Aroney, above n36.
[114] Katherine Lindsay, The Australian Constitution in Context (1999) at 67; Patrick Keyzer, Constitutional Law (2nd ed, 2005) at 26.
[115] Melissa Castan & Sarah Joseph, Federal Constitutional Law: A Contemporary View (2001) at 44.
[116] Keven Booker, Arthur Glass and Robert Watt, Federal Constitutional Law: An Introduction (2nd ed, 1998) at 40.
[117] Id at 41.
[118] State Banking Case [1947] HCA 26; (1947) 74 CLR 31 at 83 (Dixon J).
[119] Huddart, Parker [1909] HCA 36; (1909) 8 CLR 330 at 350 (Griffith CJ).
[120] We here put aside interpretations of the United States commerce power, also noting the interpretation that has been given to the Australian provision by the High Court. See below n219.
[121] The doctrine was for this reason also called, at the time, the doctrine of implied prohibitions. The clearest statement of the doctrine as such appears in Union Label Case [1908] HCA 94; (1908) 6 CLR 469.
[122] After all, each of the heads of concurrent Federal power are collected into the one section (s 51) and are dependent for their operation on the general words that appear at the beginning of the section (‘The Parliament shall … have power to make laws … with respect to …’). What more, other than saying so explicitly, could the framers have done to make clear that each head of power was to be read in the context of the others?
[123] See Aroney, above n36.
[124] Both provisions have been reproduced above.
[125] This was the question posed in Huddart, Parker [1909] HCA 36; (1909) 8 CLR 330 and Strickland v Rocla Concrete Pipes Ltd (1971) 124 CLR 468 (‘Strickland’).
[126] Thus the reserved powers doctrine did not operate simply as an absolute prohibition. On the interpretive choice that had to be made, see Huddart, Parker [1909] HCA 36; (1908) 8 CLR 330 at 370, 363; R v Barger [1908] HCA 43; (1908) 6 CLR 41 at 69; Union Label Case [1908] HCA 94; (1908) 6 CLR 469 at 502–3.
[127] While space prevents us from elaborating the point, the same conclusion can be arrived at by putting it in terms of the characterisation of the statute, rather than the interpretation of the head of power.
[128] See the references cited above n100–105.
[129] Isaac Isaacs and Henry Bournes Higgins were also heavily involved, but they very consistently found themselves in the minority during the debates and had no formal role in the drafting committees.
[130] R v Barger [1908] HCA 43; (1908) 6 CLR 41 at 72; Huddart, Parker [1909] HCA 36; (1909) 8 CLR 330 at 350.
[131] On Isaacs J’s contrary theory of the ‘residual’ powers of the States, see Aroney, above n113.
[132] Robert Garran, Prosper the Commonwealth (1958) at 180. See also State Banking Case [1947] HCA 26; (1947) 74 CLR 31 at 83 (Dixon CJ); Airlines of New South Wales v New South Wales (No 2) (1965) 113 CLR 64 at 79 (Barwick CJ); Strickland (1971) 124 CLR 468 at 485 (Barwick CJ).
[133] On Isaacs’ life, see Zelman Cowen, Isaac Isaacs (1993).
[134] See, for example, J A La Nauze, The Making of the Australian Constitution (1974) at 120, 150–51. Samuel Griffith, then Chief Justice of Queensland, was not present at the Convention of 1897–8, but his influence was certainly felt.
[135] In the hands of the Griffith Court, the principle operated in the context of a recognition that Federal heads of power were inherently capable of alternatively wider and narrow interpretations, and that the wider interpretation was to be preferred unless there was something in the context or in the rest of the Constitution to indicate that the narrower interpretation would best carry out its object and purpose. See Jumbunna Coal Mine, No Liability v Victorian Coal Miners’ Association [1908] HCA 95; (1908) 6 CLR 309 at 367–8 (O’Connor J). In later cases, the principle was not so qualified. See the development in R v Public Vehicles Licensing Appeal Tribunal (Tas); Ex parte Australian National Airways Pty Ltd [1964] HCA 15; (1964) 113 CLR 207 at 225–6; Grain Pool of Western Australia v Commonwealth (2000) 202 CLR 479 at 492.
[136] Work Choices [2006] HCA 52; (2006) 229 CLR 1.
[137] Huddart, Parker [1909] HCA 36; (1909) 8 CLR 330.
[138] In the majority joint judgment in Work Choices, much is made of differences in the precise formulations proposed by the individual justices in Huddart, Parker as if this rendered the general approach somehow suspect. (See Work Choices [2006] HCA 52; (2006) 229 CLR 1 at 29–30.) However, firstly, the most significant difference was between the view of Isaacs J, on one hand, and the views of Griffith CJ, Barton and O’Connor J on the other, which was of course premised on their disagreement over the reserved powers doctrine. Secondly, the phenomenon of difference in points of detail is a general characteristic of High Court decision-making whatever general view of the scope of federal power is adopted. Relatively wider approaches to interpretation do not exempt the Court from having to define the precise boundaries of the power, and on questions of detail such as these, differences of opinion are just as likely as when the Court adopts a relatively narrower approach.
[139] Strickland (1971) 124 CLR 468.
[140] Id at 489–90 (Barwick CJ).
[141] For example, Actors and Announcers Equity Association of Australia v Fontana Films Pty Ltd (1982) 150 CLR 169 (‘Actors and Announcers Equity’) at 207–8 (Mason J), 211 (Murphy J); Tasmanian Dam [1983] HCA 21; (1983) 158 CLR 1, 148–9 (Mason J); Re Pacific Coal Pty Ltd; Ex parte Construction, Forestry, Mining and Energy Union (2000) 203 CLR 346 (‘Re Pacific Coal’) at 375 (Gaudron J).
[142] For example, Actors and Announcers Equity (1982) 150 CLR 169 at 218–22 (Brennan J).
[143] Id at182 (Gibbs CJ) (‘the nature of the corporation to which the laws relate must be significant as an element in the nature or character of the laws’); Tasmanian Dam [1983] HCA 21; (1983) 158 CLR 1 at 117–9 (Gibbs CJ).
[144] As Dawson J put it, ‘the way in which the law operates upon [constitutional corporations] must be such that they impart their character to the law … the fact that it is a trading or financial corporation should be significant in the way in which the law relates to it’: Re Dingjan; Ex parte Wagner [1995] HCA 16; (1995) 183 CLR 323 (‘Re Dingjan’) at 346. In the cases, there was a division among the justices as to whether the power was limited to the regulation of trading activities, of activities undertaken for the purpose of engaging in trading activities or extended to the regulation of any activities of a trading corporation whatsoever. This latter position, on our analysis, merges into the third and widest view of the scope of the power in this respect.
[145] See the judgments cited below n149, 171–2, 174.
[146] In Actors and Announcers Equity (1982) 150 CLR 169, the Court held that the corporations power extended not only to the regulation but also to the protection of the trading activities of trading corporations, upholding a law which penalised acts of third parties which caused loss or damage to such corporations. However, in Re Dingjan [1995] HCA 16; (1995) 183 CLR 323, a majority of the Court were not prepared to uphold a law which gave the Australian Industrial Relations Commission power to set aside or vary unjust contracts entered into between natural persons which had some relation to the business of a constitutional corporation.
[147] The Australian Constitution s 51(xxxvii) confers upon the Commonwealth the power to exercise legislative powers referred to it by the States.
[148] Incorporation Case (1990) 169 CLR 482.
[149] Work Choices [2006] HCA 52; (2006) 229 CLR 1 at 23, 28, 30–34, 44 discusses the reasoning of Isaacs J in Huddart, Parker [1909] HCA 36; (1909) 8 CLR 330.
[150] In Work Choices [2006] HCA 52; (2006) 229 CLR 1 at 170, Callinan J observed that the definition of “constitutional corporation” in the Amending Act which introduced the Work Choices regime ‘effectively assumes that s 51(xx) is capable of embracing every aspect of a corporation apart from its incorporation.’
[151] Incorporation Case (1990) 169 CLR 482 at 497–8.
[152] This was the position affirmed by Justice Isaacs in Huddart, Parker [1909] HCA 36; (1909) 8 CLR 330 at 393 and later adopted by a majority of the Court in R v Trade Practices Tribunal; Ex parte St. George County Council [1974] HCA 7; (1974) 130 CLR 533 (Gibbs & Menzies JJ, McTiernan J agreeing, albeit for different reasons).
[153] This is the position finally arrived at by a majority of the Court following decisions in R v Judges of Federal Court of Australia; Ex parte Western Australian National Football League (Inc) [1979] HCA 6; (1979) 143 CLR 190; State Superannuation Board v Trade Practices Commission [1982] HCA 72; (1982) 150 CLR 282 and Tasmanian Dam [1983] HCA 21; (1983) 158 CLR 1.
[154] Compare R v Trade Practices Tribunal; Ex parte St. George County Council [1974] HCA 7; (1974) 130 CLR 533 at 543 (Barwick CJ); R v Judges of Federal Court of Australia; Ex parte Western Australian National Football League (Inc) [1979] HCA 6; (1979) 143 CLR 190 at 234 (Mason J), 219 (Stephen J), 239 (Murphy J).
[155] Fencott v Muller (1983) 152 CLR 570.
[156] Constitution Alteration (Legislative Powers) Bill 1910; Constitution Alteration (Industrial Matters) Bill 1912; Constitution Alteration (Industry and Commerce) Bill 1926, discussed in Work Choices [2006] HCA 52; (2006) 229 CLR 1 at 41–4, 196–208.
[157] Note the dissenting judgment of Deane J in Incorporation Case (1990) 169 CLR 482.
[158] New South Wales v Commonwealth [2006] HCATrans 215 (4 May 2006) 125 (Kirby J).
[159] R v Coldham; Ex parte Australian Social Welfare Union [1983] HCA 19; (1983) 153 CLR 297.
[160] Burwood Cinema Ltd v Australian Theatrical and Amusement Employees’ Association [1925] HCA 7; (1925) 35 CLR 528.
[161] See Victoria v Commonwealth (1996) 187 CLR 416.
[162] See Work Choices [2006] HCA 52; (2006) 229 CLR 1 at 29–30, 62; see also 33, 40. Justice Kirby denied that this was the case: Work Choices [2006] HCA 52; (2006) 229 CLR 1 at 125, 127. Whether this reasoning entailed reserved powers thinking depends on how we understand the reserved powers doctrine. For a discussion, see Aroney, above n36.
[163] See Work Choices [2006] HCA 52; (2006) 229 CLR 1 at 20, 46, 55, 56, 57, 59–60, 60, 75, 76.
[164] See Work Choices [2006] HCA 52; (2006) 229 CLR 1 at 34–41. (‘To pursue the identification of what is said to be the framers’ intention, much more often than not, is to pursue a mirage’: at 40.)
[165] Work Choices [2006] HCA 52; (2006) 229 CLR 1 at 43–4.
[166] Work Choices [2006] HCA 52; (2006) 229 CLR 1 at 44.
[167] See the survey of the attitudes and assumptions of politicians, lawyers and judges catalogued in Callinan J’s judgment: Work Choices [2006] HCA 52; (2006) 229 CLR 1 at 186–208.
[168] A point noted in Work Choices [2006] HCA 52; (2006) 229 CLR 1 at 16–17, 146, 158, 161–2, 235.
[169] And perhaps, too, to those activities that were in preparation for such trading activities. See below n171, n173.
[170] See Strickland (1971) 124 CLR 468 at 507–8 (Menzies J), 519 (Walsh J); but compare 490 (Barwick CJ), 525 (Gibbs J).
[171] Compare Re Dingjan [1995] HCA 16; (1995) 183 CLR 323, 337 (Brennan J); Re Pacific Coal (2000) 203 CLR 346, 375 [83] (Gaudron J); Work Choices [2006] HCA 52; (2006) 229 CLR 1 at 55–6.
[172] Tasmanian Dam [1983] HCA 21; (1983) 158 CLR 1, noting also Actors and Announcers Equity (1982) 150 CLR 169 and Re Dingjan [1995] HCA 16; (1995) 183 CLR 323.
[173] In Tasmanian Dam [1983] HCA 21; (1983) 158 CLR 1, a majority of Gibbs CJ, Mason, Murphy, Brennan and Deane JJ upheld s 10(4) of the World Heritage Conservation Act 1983 (Cth), which prohibited a trading corporation from undertaking certain kinds of actions, but which added the qualification ‘for the purposes of its trading activities’. However, a majority of Gibbs CJ, Brennan, Wilson and Dawson JJ were not prepared to uphold s 10(2), which imposed the same prohibition without the additional qualification.
[174] Tasmanian Dam [1983] HCA 21; (1983) 158 CLR 1 (Mason, Murphy & Deane JJ).
[175] See Actors and Announcers Equity (1982) 150 CLR 169 at 207–8 (Mason J), 211–12 (Murphy J); Tasmanian Dam [1983] HCA 21; (1983) 158 CLR 1 at 149–50 (Mason J), 179 (Murphy J), 269–70 (Deane J).
[176] Brennan J limited his decision to s 10(4) of the World Heritage Conservation Act 1983 (Cth), leaving the wider question of s 10(2) open.
[177] Huddart, Parker [1909] HCA 36; (1909) 8 CLR 330; Strickland (1971) 124 CLR 468; Engineers [1920] HCA 54; (1920) 28 CLR 129.
[178] On the voluminous decided cases on the Trade Practices Act 1974 (Cth) see Russell Miller, Miller’s Annotated Trade Practices Act (28th ed; 2007).
[179] Work Choices [2006] HCA 52; (2006) 229 CLR 1 at 125 (Kirby J).
[180] Work Choices [2006] HCA 52; (2006) 229 CLR 1 at 125, 127, 145–6, 162–3 (Kirby J), 186, 226, 247 (Callinan J). Justice Kirby’s attempt to distinguish the external affairs power from the corporations power, in this context, seems weak: at 154–6.
[181] The majority joint judgment is remarkably free of any discussion of underlying values and principles — in sharp contrast to the two dissenting judgments.
[182] Huddart, Parker [1909] HCA 36; (1909) 8 CLR 330 at 409.
[183] See also Huddart, Parker [1909] HCA 36; (1909) 8 CLR 330 at 348 (Griffith CJ).
[184] P H Lane, The Australian Federal System (1979) at 160.
[185] Among these justices, there is most clearly Gibbs CJ, Wilson and Dawson JJ (although see Dawson J in Re Dingjan [1995] HCA 16; (1995) 183 CLR 323 at 346 (adhering to the ‘significance’ test)). Also, to a lesser extent, there is Stephen and Brennan JJ. Note also the tendency of Barwick CJ, Menzies and Walsh JJ to limit their decisions to the precise issues raised in each case.
[186] For example, Tasmanian Dam [1983] HCA 21; (1983) 158 CLR 1 at 179 (Murphy, J); Re Dingjan [1995] HCA 16; (1995) 183 CLR 323 at 333–4 (Mason CJ), 365 (Gaudron J); Re Pacific Coal Pty Ltd; Ex parte CFMEU (2000) 203 CLR 346 at 375 (Gaudron J).
[187] Isaacs J was persistently in the minority in the cases prior to Engineers. See, for example, his dissenting judgments in R v Barger [1908] HCA 43; (1908) 6 CLR 41 and Huddart, Parker [1909] HCA 36; (1909) 8 CLR 330.
[188] Incorporation Case (1990) 169 CLR 482; Re Dingjan [1995] HCA 16; (1995) 183 CLR 323.
[189] See Re Dingjan [1995] HCA 16; (1995) 183 CLR 323 at 333–4 (Mason CJ), 336–7 (Brennan J), 353 (Toohey J), 364–5 (Gaudron J), 368–9 (McHugh J).
[190] Only s 127C(1)(b) of the Industrial Relations Act 1988 (Cth) was put in issue in Re Dingjan. This provision limited the operative provisions of the Act to contracts ‘relating to the business of a constitutional corporation’. Compare s 127C(1)(a), which limited the operative provisions of the Act to contracts ‘to which a constitutional corporation is a party’, and s 127C(1)(c), which limited the operative provisions of the Act to contracts ‘entered into by a constitutional corporation for the purposes of the business of the corporation’. Neither of these provisions was challenged in the case.
[191] See Anthony Mason, ‘Towards 2001 — Minimalism, Monarchism or Metamorphism?’ [1995] MonashULawRw 1; (1995) 21 Monash University Law Review 1 at 11.
[192] See Geoffrey Kennett, ‘Constitutional Interpretation in the Corporations Case’ (1990) 19 Federal Law Review 223; Rob McQueen, ‘Why High Court Judges Make Poor Historians: The Corporations Act Case and Early Attempts to Establish a National System of Company Regulation in Australia’ (1990) 19 Federal Law Review 245; A. R. Blackshield and George Williams, Australian constitutional law and theory: Commentary and materials (2nd ed, 1998), 636; Leslie Zines, The High Court and the Constitution (4th ed, 1997) at 99–100; Anthony Grey, ‘Precedent and Policy: Australian Industrial Relations Reform in the 21st Century using the Corporations Power’ [2005] DeakinLawRw 23; (2005) 10(2) Deakin Law Review 440.
[193] Work Choices [2006] HCA 52; (2006) 229 CLR 1 at 54–5, 55–6, 60; cf 132 (Kirby J), 220 n 993, 261 (Callinan J).
[194] Re Pacific Coal; Ex parte Construction, Forestry, Mining & Energy Union (2000) 203 CLR 346 at 375.
[195] In the United States, as in Australia, the absence of any explicit statement of the particular fields over which the States have reserved powers has enabled the courts of both countries to abjure the reserved powers doctrine. As Stone J famously once observed, delivering the opinion of the Court in United States v Darby: ‘Our conclusion is unaffected by the Tenth Amendment which provides: “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people”. The amendment states but a truism that all is retained which has not been surrendered.’ See United States v Darby [1941] USSC 49; 312 US 100 (1941) at 123–4 (emphasis added). Contrast, for example, the reasoning of the Privy Council in Bank of Toronto v Lambe [1887] UKLawRpAC 25; (1887) 12 App Cas 575 and, more recently, of the Supreme Court of Canada in Ontario Public Service Employees Union v AG Ont [1987] 2 SCR 2.
[196] Council for the Australian Federation, Communiqué, 9 February 2007 at 6 <http://www.greenhouse.nsw.gov.au/__data/assets/pdf_file/0016/6343/CAF_communique_9feb07.pdf> accessed 12 March 2008.
[197] Aroney, above n113 at 229–35, 249–51.
[198] In relation to State immunity from Federal laws, see State Banking Case [1947] HCA 26; (1947) 74 CLR 31; Austin v Commonwealth (2003) 215 CLR 185. In our view, this reworking should also be applied to Commonwealth immunity from State laws, notwithstanding the decision in Commonwealth v Cigamatic Pty Ltd (In Liq) [1962] HCA 40; (1962) 108 CLR 372, which was essentially retained in Re Residential Tenancies Tribunal of NSW; Ex parte Defence Housing Authority (1997) 190 CLR 410.
[199] Even the United Kingdom, which is not a federation, appoints a higher percentage of law lords from Scotland and Northern Ireland — indeed in terms of relative populations a significantly higher percentage — than are appointed in Australia to the High Court from the four small States of Western Australia, South Australia, Queensland and Tasmania.
[200] From the federation era, for example, most obviously Andrew Inglis Clark of Tasmania and Josiah Symon of South Australia. Clark was appointed to his State’s Supreme Court.
[201] Thus, in the context of their times, Griffith CJ, Gibbs CJ and Callinan J from Queensland, and Wilson J from Western Australia frequently favoured relatively narrower interpretations of federal powers; whereas Isaacs and Higgins JJ and later Knox CJ from New South Wales, Latham CJ from Victoria and, more recently, Mason CJ, Murphy, Deane and Gaudron JJ from New South Wales favoured national power in many of their decisions. But the picture is not altogether neat: Dixon CJ, Stephen and Aickin JJ from Victoria, Barwick CJ and Kirby J from New South Wales and Brennan CJ from Queensland are harder to classify. Moreover, just as Gavan Duffy J from Victoria had followed Griffith CJ and Barton and O’Connor JJ from New South Wales, so Dawson J, also from Victoria, tended to join with Gibbs CJ and Wilson J.
[202] In mid-2007, only Callinan J could be described as a committed federalist. Indeed his dissenting judgment in the Work Choices case is a strong argument for just that sort of position. The other members of the majority, Gleeson CJ, Gummow, Hayne, Heydon and Crennan JJ, all of them from either New South Wales or Victoria, upheld the law. Justice Callinan retired at the end of August 2007, replaced by Kiefel J, also from Queensland.
[203] The framers seriously considered, but decided against, making provision in the Constitution for the High Court to be ‘representative’ of the various States. See Convention Debates, Melbourne (1898) at 265–85.
[204] Murray Gleeson, ‘The Constitutional Decisions of the Founding Fathers’ (University of Notre Dame School of Law (Sydney) Inaugural Annual Lecture, 27 March 2007). See, also, Singh v Commonwealth [2004] HCA 43; (2004) 222 CLR 322 at 331–337.
[205] Michael Kirby, ‘Constitutional Interpretation and Original Intent: A Form of Ancestor Worship?’ [2000] MelbULawRw 1; (2000) 24 Melbourne University Law Review 1.
[206] See Jeffrey Goldsworthy, ‘Interpreting the Constitution in its Second Century’ [2000] MelbULawRw 27; (2000) 24 Melbourne University Law Review 677.
[207] See Goldsworthy, ‘Originalism’, above n38.
[208] Justice Heydon has recently argued that ‘literalism’ has never been advocated by judges of the High Court: Dyson Heydon, ‘Theories of Constitutional Interpretation: A Taxonomy’, Sir Maurice Byers Lecture (Sydney, 3 May 2007) at 73–6. It goes without saying that when we refer to clause-bound literalism, we have in mind the way in which the High Court has very clearly read the provisions of particular heads of power in isolation from their wider, federal context in the specific ways explained above. We do not claim that the High Court has not taken context into consideration in other senses or for other purposes.
[209] See references above n20, 23, 38, 40.
[210] See Allan, ‘Portia, Bassanio or Dick the Butcher’, above n17.
[211] See Grant Huscroft, ‘The Trouble with Living Tree Interpretation’ [2006] UQLawJl 2; (2006) 25 University of Queensland Law Journal 3.
[212] See, for example, George Williams, ‘Engineers is Dead, Long Live the Engineers’ [1995] SydLawRw 4; (1995) 17 Sydney Law Review 62.
[213] Compare Official Report of the National Australasian Convention Debates, Melbourne (1898) at 688–90; Official Report of the National Australasian Convention Debates, Adelaide (1897) at 1167.
[214] Australian Capital Television Pty Ltd v Commonwealth [1992] HCA 45; (1992) 177 CLR 106; Nationwide News Pty Ltd v Wills [1992] HCA 46; (1992) 177 CLR 1.
[215] See Aroney, above n16; Adrienne Stone, ‘The Limits of Constitutional Text and Structure’ [1999] MelbULawRw 26; (1999) 23 Melbourne University Law Review 668.
[216] H L A Hart, The Concept of Law (1961) at 119.
[217] See id at 131.
[218] See above n13, n83.
[219] US states may be less powerful than Canadian provinces, but they retain a great deal of autonomy in many areas (eg, education, health care, labour relations, criminal policy).
[220] See the discussion of the Shreveport Rate cases [1914] USSC 201; 234 US 342 (1914), United States v Wrightwood Dairy Co [1942] USSC 34; 315 US 110 (1942), Wickard v Filburn [1942] USSC 142; 317 US 111 (1942) and others in Airlines of New South Wales Pty Ltd v New South Wales (No 2) [1965] HCA 3; (1965) 113 CLR 54 at 113–4.