McConville, James; Smith, Darryl --- "Interpretation and Cooperative Federalism: Bond v R from a Constitutional Perspective" [2001] FedLawRw 4; (2001) 29(1) Federal Law Review 75
[*] BCom/LLB student; LLB student (respectively), Deakin University—Melbourne Campus. The authors wish to thank a number of people for their helpful suggestions and comments, in particular Professor George Williams (University of New South Wales), Professor George Winterton (University of New South Wales), along with Dr Danuta Mendelson and Richard Haigh, both of Deakin University. Of course, any errors or omissions are the responsibility of the authors alone.
[1] Re Wakim; Ex parte McNally (1999) 198 CLR 511 ('Re Wakim') at 556 per McHugh J. See also McHugh J's pertinent comment in McGinty v Western Australia [1996] HCA 48; (1996) 186 CLR 140 at 231-32:
"After the decision of this Court in the Engineers' Case, the Court had consistently held, prior to Nationwide News and Australian Capital Television Pty Ltd v The Commonwealth, that it is not legitimate to construe the Constitution by reference to political principles or theories that are not anchored in the text of the Constitution or are not necessary implications from its structure" (emphasis added).
For a discussion of the High Court's alternative "flexible" approach to constitutional interpretation, refer to J McConvill "The United Kingdom is a Foreign Power- Sue v Hill" (2000) 4(2) Deakin L R 151.
[2] B Galligan, "The Future of Australian Federalism" in S Prasser and G Starr (eds), Policy and Change: The Howard Mandate (1997) at 97; M Longo, "Co-operative Federalism in Australia and the European Union: Cross-Polluting the Green Ideal" (1997) 25 F L Rev 127 at 147; Deputy Commissioner of Taxation (NSW) v WR Moran Pty Ltd [1939] HCA 27; (1939) 61 CLR 735 at 774 per Starke J: "Cooperation on the part of the Commonwealth and the States may well achieve objectives that neither could achieve; that is often the end and the advantage of cooperation" (emphasis added); A de Costa, "The Corporations Law and Cooperative Federalism after The Queen v Hughes" [2000] SydLawRw 21; (2000) 22 Syd L R 451 at 465: "The implicit constitutional principle of cooperative federalism acknowledges that Australian governments may work together to produce results ... that could not be achieved by each acting alone" (citations omitted). See also the joint judgment of Gleeson CJ, Gaudron, Gummow, Hayne and Callinan JJ in The Queen v Hughes (2000) 171 ALR 155 at 167-168.
[3] Re Wakim; Ex parte McNally (1999) 198 CLR 511. Re Wakim was actually a sequel to an earlier High Court decision, Gould v Brown (1998) 193 CLR 346. In Gould v Brown, the Court was split 3:3 as to the question of whether cross-vesting legislation was constitutionally invalid. Because of this, the unanimous decision of the Federal Court of Australia upholding the validity of the legislation (BP Australia v Amann Aviation [1996] NSWSC 534; (1996) 137 ALR 447) was not disturbed.
[4] See J Kirk, "Constitutional Interpretation and a Theory of Evolutionary Originalism" (1999) 27 F L Rev 321, for criticism of the legalism applied in Re Wakim.
[5] G Williams, "Power to the people to alter constitutional flaws" Financial Review 24 March 2000 at 30-31. See also G Williams, "The Real Answer is Constitutional Reform" Financial Review 1 December 2000 at 41.
[6] Bond v R (2000) 169 ALR 607 at 608 ('Bond').
[8] Byrnes v R [1999] HCA 38; (1999) 199 CLR 1 at 38 per Kirby J ('Byrnes').
[10] Bond (2000) 169 ALR 607 at 610.
[11] Bond v R P57/1999 (Transcript, 4 February 2000).
[12] Bond (2000) 169 ALR 607 at 608.
[13] [1999] HCA 38; (1999) 199 CLR 1.
[14] Bond (2000) 169 ALR 607 at 612.
[15] In its reasoning, the Court could also have applied the rule of interpretation expressed in the maxim expressio unius est exclusio alterius ("the inclusion of the one is the exclusion of the other") to reach its decision, because s 17 mentions the power to prosecute but not the power to appeal. The expressio unius rule could not be applied when interpreting the WA Criminal Code, s 688(2) because, unlike s 17, it does mention appeals—but doesn't expressly state that the Commonwealth DPP has the authority to appeal. The expressio unius rule was not, however, mentioned once in the Court's unanimous judgment, and should not therefore be dealt with in this paper. It should be noted though that in Russell v Russell [1976] HCA 23; (1976) 134 CLR 495 at 539 the Court said that the expressio unius rule must always be used with caution. See also Re Wakim (1999) 198 CLR 511 at 605 in which Kirby J opined that a cautious application of the expressio unius rule is necessary especially when construing constitutional provisions.
[16] [1989] HCA 58; (1989) 168 CLR 227, ('Malvaso').
[17] [1989] HCA 58; (1989) 168 CLR 227 at 233 (emphasis added); cited in Bond (2000) 169 ALR 607 at 613.
[18] [1986] HCA 50; (1986) 161 CLR 119 at 128-129 (citations omitted).
[19] Bond (2000) 169 ALR 607 at 613, citing Everett v The Queen [1994] HCA 49; (1994) 181 CLR 295 at 299 per Brennan, Deane, Dawson and Gaudron JJ.
[20] The Court concluded that, due to s 91(5) of the WA Corporations Act, s 91(1) of that Act, which authorised the Commonwealth DPP to institute prosecutions for State offences, did not empower the Commonwealth DPP to institute an appeal against sentence, Bond (2000) 169 ALR 607 at 613–614.
[21] Bond (2000) 169 ALR 607 at 610, citing Byrnes [1999] HCA 38; (1999) 199 CLR 1.
[22] Bond (2000) 169 ALR 607 at 612.
[23] (2000) 169 ALR 616 ('Truth About Motorways').
[24] If it was the Commonwealth's intention for s 17 to empower the Commonwealth DPP to institute both prosecutions and appeals relating to State offences, even though s 17 does not mention appeals, then the Court's approach in Bond of reading down the provision is inconsistent with the 'purpose approach' to interpretation of Commonwealth legislation which the Acts Interpretation Act 1901 (Cth), s 15AA mandates. Section 15AA(1) of that Act reads:
'In the interpretation of a provision of an Act, a construction that would promote the purpose or object underlying the Act (whether that purposeor object is expressly stated in the Act or not) shall be preferred to a construction that would not promote that purpose or object.'
For a discussion on how s 15AA of the Acts Interpretation Act, and its Victorian equivalent (the Interpretation of Legislation Act 1984 (Vic), s 35(a)) is applied, see S Streets, Butterworths' Casebook Companions: Administrative Law (2nd ed, 2000) at 40-41.
[26] The enumerated legislative powers of the Federal Parliament under s 51 of the Constitution (including the corporations power, s 51(xx), which supports the Trade Practices Act), are expressed to be "subject to this Constitution", which includes the negative implications arising from Chapter III. Consider the comments of Dixon CJ, McTiernan, Fullagar and Kitto JJ in R v Kirby; Ex parte Boilermakers' Society of Australia [1956] HCA 10; (1956) 94 CLR 254 at 267 : "[T]o study Chapter III is to see at once that it is an exhaustive statement of the manner in which the judicial power of the Commonwealth is or may be vested. It is true that it is expressed in the affirmative but its very nature puts out of question the possibility that the legislature may be at liberty to turn away from Chapter III to any other source of power when it makes a law giving judicial power exercisable within the Federal Commonwealth of Australia."
[27] For a discussion of the meaning of "matter" in the context of Chapter III of the Constitution, see Australian Securities and Investments Commission v Edensor Nominees Pty Ltd [2001] HCA 1 (8 February 2001) ('Edensor') at [50]-[60] per Gleeson CJ, Gaudron and Gummow JJ. Edensor is an important decision in that it overcomes some of the problems resulting from Re Wakim. In Edensor, a majority of the High Court decided that the Australian Securities and Investments Commission (ASIC) was "the Commonwealth" for the purposes of the Judiciary Act 1903 (Cth), s 39B(IA)(a). Section 39B(IA)(a) of the Judiciary Act provides that the original jurisdiction of the Federal Court of Australia also includes jurisdiction in any matter "in which the Commonwealth is seeking an injunction or a declaration". The effect of the decision is Edensor is that the Federal Court has jurisdiction to hear and determine applications brought by ASIC for declarations and injunctions under the Corporations Law. Before Edensor, due to the Re Wakim decision the Federal Court could only hear and determine Corporations Law matters if it was decided that these matters came within its "accrued jurisdiction". With ASIC now meeting the description of "the Commonwealth" for the purposes of the Judiciary Act, s 39B(1A)(a) and the Constitution, s 75(iii) and s 77(i), the Federal Court may now have the power to hear and determine all Corporations Law matters (including winding up orders) when ASIC is a party to the dispute, thus dispensing with the need for a referral of power over corporations from the States to the Commonwealth. See further the comments of B Pheasant, "Federal Court's doors open again" Financial Review 16 February 2001 at 40; as to the operation of s 79 of the Judiciary Act 1903 (Cth) in the decision see A Kempton, "The Jurisdiction of the Federal Court in the Wake of Re Wakim" (2001) 42 Corporate Law Electronic Bulletin, http://cclsr.law.unimelb.edu.au/Bulletins.
[28] Sue v Hill [1999] HCA 30; (1999) 199 CLR 462 at 515 per Gaudron J; also M Allars, "Standing: the Role and Evolution of the Test" (1991) 20 F L Rev 83.
[29] Truth About Motorways (2000) 169 ALR 616 at 619 per Gleeson CJ and McHugh J.
[30] Truth About Motorways (2000) 169 ALR 616 at 649; see also Kirby J's similarly-themed statements in Truth About Motorways at 649: "[Sections 80 and 163A of the Trade Practices Act] are not cut down or restricted by a limitation on the power of the Parliament to enact laws, implied from the requirement that the jurisdiction of a Federal court may only be conferred in respect of a 'matter''', and at 653: "Subject to the Constitution, no attempt should be made to import unexpressed restrictions." (emphasis added)
[31] C Saunders, "Administrative Law and Relations Between Governments: Australia and Europe Compared" (2000) 28 F L Rev 263, as to the effectiveness of co-operative mechanisms between the Commonwealth and any one State.
[32] A de Costa, above n 2 at 465-66.
[33] R Dworkin, "The Arduous Virtue of Fidelity: Originalism, Scalia, Tribe, and Nerve" (1997) 65 Fordham L R 1249 at 1250.
[34] (1999) 198 CLR 511.
[35] For an explanation of the intricacies of the Wakim cross-vesting case, see I Turley, "The Implications of Re Wakim" (2000) 4(2) Deakin L R 159; N Lucarelli, "Re Wakim: Cross-Vesting and Back Again" (1999) 110 Victorian Bar News 23; D Lam, "Wakim" [2000] SydLawRw 7; (2000) 22(1) Syd L R 155; C Saunders, "In the Shadow of Wakim" (1999) 17 Company and Securities Law Journal 507; Edensor [2001] HCA 1 (8 February 2001) at [8]-[12] per Gleeson CJ, Gaudron and Gummow JJ. For a concise explanation of the legislative response of the Commonwealth and the States to the High Court decision in Re Wakim (and the more recent decision in The Queen v Hughes [2000] HCA 22), see M Heatherington, "Resolving the Company Law Crisis after the High Court's decision in The Queen v Hughes" (2000) 28(5) Australian Business Law Review 364 at 372-3; A de Costa, above n 2 at 466-7; D Rose, "The Hughes Case: The Reasoning, Uncertainties and Solutions" (2000) 29 UWALR 180; G Lyon, "R v Hughes: Shuffling the Decks on the Titanic?" (2001) 6(1) Deakin L R (forthcoming) (copy on file with authors).
[36] Re Wakim (1999) 198 CLR 511 at 554 (emphasis added).
[37] R Dworkin, above n 33.
[38] D Tucker, 'Textualism: An Australian Evaluation of the Debate between Professor Ronald Dworkin and Justice Antonin Scalia' (1999) 22 Syd L R 567 at 567-68.
[39] 'Swearing in of Sir Owen Dixon as Chief Justice' (1951-52) 85 CLR at xi.
[40] In Australian National Airways Pty Ltd v Commonwealth (ANA Case) [1945] HCA 41; (1945) 71 CLR 29 at 40 Rich J also was of the opinion that the convenience/effectiveness argument must be disregarded when undertaking the task of statutory and/or constitutional interpretation. His Honour wrote: "[I]t cannot be too clearly understood that this Court is not in the smallest degree concerned to consider whether such a project is politically, economically, or socially desirable or undesirable." See also Kirby J's comments as to the efficiency of a particular system under legal challenge in R v Hughes (2000) 171 ALR 155 at 173.
[41] Also consider the statement by McHugh J in McGinty v Western Australia [1996] HCA 48; (1996) 186 CLR 140 at 231-32.
[42] Re Wakim (1999) 198 CLR 511 at 548.
[43] See, for example, M Crock and R McCallum, "The Chapter III Courts: The Evolution of Australia's Federal Judiciary" (1995) 6 Public Law Review 187 at 188: "Despite a few problems, the Federal and State courts still work harmoniously together. This is due in the main to a long-standing cooperative approach by State and Federal judges and governments" (emphasis added). See also Re Wakim (1999) 198 CLR 511 at 602 per Kirby J: "Yet the agreement of all the democratically-elected legislatures of Australia that a system of cross-vesting is necessary to help avoid inconvenience and expense, and to remove injustices and uncertainties occasioned by jurisdictional conflict, provides at least persuasive evidence that the legislation serves a practical rational purpose."
[44] Re Wakim (1999) 198 CLR 511 at 556.
[45] Amalgamated Society of Engineers v Adelaide Steamship Co [1920] HCA 54; (1920) 28 CLR 129.
[46] Consider Kirby J's statement in R v Hughes (2000) 171 ALR 155 at 174: "The presumption remains that federalism and cooperation are not inconsistent" (citations omitted).
[47] See G Sawer, Australian Federalism in the Courts (1967) at 121: "The Constitution is on its face federal and is so described in the Covering Clauses" (emphasis added). See also W Rich, "Converging Constitutions: An Analysis of Constitutional Law in the United States and Australia" (1993) 21 F L Rev 202 at 203: "The constitutional histories of both the United States and Australia have been frequently reviewed, and it is accepted that the federal structure of the two constitutions have much in common." (emphasis added).
[48] A Mason, "The Role of a Constitutional Court in a Federation: A Comparison of the Australian and the United States Experience" (1986) 16 F L Rev 1 at 2-3.
[49] Consider, for example, Ha v New South Wales [1997] HCA 34; (1997) 189 CLR 465 in which the High Court's rather broad interpretation of what constitutes a duty of excise for the purposes of s 90 of the Constitution, contrary to the interests of the States, has resulted in greater vertical fiscal imbalance and horizontal fiscal inequality. See McMonnies, R, "Ngo Ngo Ha and the High Court v New South Wales: Historical Purpose in History and Law (1999) 27(3) F L Rev 471 at 493: "The difficulty with the current position of the High Court with regard to excise duties is that, although the reasoning in Ha represents an application of legal pragmatism based on substance, the decision produces a most undesirable result. The problem created by Ha, and indeed any broad judicial interpretation of s 90, arises out of the federal system of government in Australia and its objectives". See also D Meale, "The History of the Federal Idea in Australian Constitutional Jurisprudence: A Reappraisal" (1992) 8 Australian Journal of Law and Society 25.
[50] Re Wakim (1999) 198 CLR 511.
[51] M Longo, above n 2 at 146: "[F]or political expediency and matters relating to cost and duplication of administrative effort, cooperation and shared responsibility represent sound policy imperatives". See also C Saunders, above n 35 at 513: "The [cooperative] system assumes that each jurisdiction is substantially complete in itself."
[52] Since Amalgamated Society of Engineers v Adelaide Steamship Co [1920] HCA 54; (1920) 28 CLR 129, the High Court has been loath to read into the Constitution implications drawn from a general theory of federalism. In Engineers, Knox CJ, Isaacs, Higgins, Rich and Starke JJ concurred (Duffy J dissenting) in expressly disapproving of the general principles of immunity of instrumentalities and implied prohibitions established in High Court decisions relying on the US case of M'Culloch v Maryland 4 Wheat [1819] USSC 5; (17 US) 316 (1819). Therefore, if cooperative federalism as a concept was no more than an implication to be drawn from the principle of federalism underlying the Constitution, the Court may be considered justified in disregarding it when interpreting and applying the Constitution. See the comments of G Hill, "R v Hughes and the Future of Co-Operative Legislative Schemes" [2000] MelbULawRw 18; (2000) 24 MULR 478 at 499-500.
[53] Re Residential Tenancies Tribunal of NSW; Ex parte Defence Housing Authority (1997) 190 CLR 410 at 508 per Kirby J: "The development of a constitutional doctrine of mutuality, cooperation and interrelationship is much more in keeping with the nature of the federal polity established by the Australian Constitution." (emphasis added)
[54] Gould v Brown (1998) 193 CLR 346 at 477.
[55] [1983] HCA 29; (1983) 158 CLR 535 ('Duncan').
[56] Duncan [1983] HCA 29; (1983) 158 CLR 535 at 580.
[57] Ibid at 589. See also the dissenting judgment of Kirby J in Re Wakim (1999) 198 CLR 511 at 604: "There is therefore nothing inherent in the Australian Constitution which forbids the cooperative sharing and combination of governmental powers within the federation. On the contrary, the constitutional text contemplates various forms of inter-governmental cooperation [see, eg, s 51(xxiii)] and cooperation between the parliaments of the Commonwealth and of the States [see, eg, s 51(xxxviii)]" (emphasis added).
[58] L Claus, "Federalism and the Judges: How Americans made us what we are" (2000) 74(2) Australian Law Journal 107. Consider also S Pufendorf, Of the Law of Nature and Nations (4th edition 1729) at 107.
[59] Refer to Gould v Brown (1998) 193 CLR 346 at 478 per Kirby J: "A high measure of cooperation between the polities created by the Constitution is both necessary and desirable for the proper operation of the Constitution. This Court, within the requirements of the constitutional text and authority, should uphold and facilitate such cooperation as one of the objectives for which the Constitution was made." (emphasis added)
[60] Another recent High Court decision which considered the constitutional validity of a Commonwealth-State co-operative scheme was R v Hughes (2000) 171 ALR 155 (hereinafter 'Hughes'). However, in relation to the cooperative federalism debate, this case really did not add to what was decided in the earlier cases of Byrnes and Bond. In Hughes, the Court again accepted that the power of State legislatures to cooperate with the Federal Parliament in the enactment of complementary legislation "[e]xtends to empowering officers and authorities of the Commonwealth, States and Territories to enforce each others' laws..." (at 174-5) so long as this is supported by the Constitution. Moreover, the High Court also held in Hughes that the States can legislate for State offences (in this case, under the Corporations Law of Western Australia) to be "taken to be" Federal offences (and prosecuted by Commonwealth officers), so long as the Federal Parliament enacts complementary legislation and this complementary legislation is supported by a head of Federal legislative power under the Constitution. According to Kirby J, in his separate majority judgment in Hughes (at 189): "Under our Constitution, criminal liability and punishment, when provided in a Federal law, must be supported by demonstrable constitutional authority. Convenience and desirability are not enough if the constitutional foundation is missing" (emphasis added); see also the leading judgment of Gleeson CJ, Gaudron, McHugh, Gummow, Hayne and Callinan JJ in Hughes (at 167-8): "[F]or the Commonwealth to impose on an officer or instrumentality of the Commonwealth powers coupled with duties adversely to affect the rights of individuals, where no such power is directly conferred on that officer or instrumentality by the Constitution itself, requires a law of the Commonwealth supported by an appropriate head of power" (emphasis added). For a discussion of the reasoning in and implications of Hughes, see D Rose, above n 35, and G Lyon, above n 35.
[61] (1999) 198 CLR 511.
[62] Consider West v Commissioner of Taxation (NSW) [1937] HCA 26; (1937) 56 CLR 657 at 681, in which Dixon J (as he then was) rejected the "notion that in interpreting the Constitution no implication can be made. ... [Such] a method of construction would defeat the intention of any instrument, but of all instruments a written constitution seems the last to which it could be applied."
[63] Sir Owen Dixon, Jesting Pilate and Other Papers and Addresses (1965) at 165.
[64] M McHugh, "The Judicial Method" (1999) 73 Australian Law Journal 37. Also consider the original article by his Honour: M McHugh, "The Law-Making Function of the Judicial Process" (1988) 62 Australian Law Journal 15, and R v Young [1999] NSWCCA 166; (1999) 46 NSWLR 681 which clearly outlined the alternative methods of statutory interpretation.
[65] M McHugh, "The Judicial Method" (1999) 73 Australian Law Journal 37 at 42 (emphasis added)
[66] Malvaso v The Queen [1989] HCA 58; (1989) 168 CLR 227 at 233.
[67] M Kirby, "Constitutional Interpretation and Original Intent-A Form of Ancestor Worship" [2000] MelbULawRw 1; (2000) 24 MULR 1.
[68] Ibid at 14 (emphasis added). His Honour's statement relied on a similar comment by Windeyer J in Spratt v Hermes [1965] HCA 66; (1965) 114 CLR 226 at 272: "The Constitution is read by today's Australians to meet, so far as its text allows, their contemporary government needs." (emphasis added)
[69] (1998) 193 CLR 346 at 476 (emphasis added); also Kirby J's dissenting judgment in Re The Governor, Goulburn Correctional Centre; Ex parte Eastman (1999) 165 ALR 171 at 194: "It is time to return to the language and purpose of the Constitution" (emphasis added); and especially his Honour in Hughes (2000) 171 ALR 155 at 174, in which he contended that there was "[a] charter [inherent in the Constitution] for the entire government of the Australian Commonwealth ... to operate harmoniously and efficiently to achieve the constitutional objectives of "peace, order, and good government of the Commonwealth"
[70] Ibid at 599-600.
[71] Gould v Brown (1998) 193 CLR 346.
[72] Ibid at 486 (emphasis added).
[73] G Williams, above n 5.
[74] It must be noted, however, that some commentators presently consider that centralisation of power rather than cooperative federalism may be the best way to overcome Australia's corporations law problems: see, in particular, G Lyon, above n 35: "The ultimate means by which certainty can be achieved is by constitutional amendment. Yet as Kirby J commented in Hughes, the path of such amendment to enlarge the corporations power has been littered with failure. In this sense, Australia stands at the crossroads. The certainty of corporate regulation may best be achieved by the increase in centralisation, at the expense of co-operative federalism." (emphasis added).
[75] M Longo, above n 2 at 147.
[76] Re Wakim (1999) 198 CLR 511.
[77] Gould v Brown (1998) 193 CLR 346.
[78] Justice Kirby's decision to apply the Malvaso rule and read down s 17 of the Commonwealth DPP Act in Bond, with the outcome being that a prisoner was set free and his liberty preserved due to his increased sentence resulting from a Commonwealth DPP appeal not expressly authorised by law, may however be considered congenial to Kirby J's objective for the engagement of fundamental human rights by Australian domestic law. In Newcrest Mining v The Commonwealth [1997] HCA 38; (1997) 190 CLR 513 at 657-8 (restated in Kartinyeri v The Commonwealth [1998] HCA 22; (1998) 195 CLR 337 at 417-9) his Honour stated: "Where the Constitution is ambiguous, this Court should adopt that meaning which conforms to the principles of universal and fundamental rights rather than an interpretation which would involve a departure from such rights" (emphasis added). See also G Williams, Human Rights under the Australian Constitution (1999) Ch. 3, and J McConvill and D Smith, "Of War Crimes and Humanitarian Intervention" (2000) 25 Alternative Law Journal 151. Whether the promotion of cooperative federalism must prevail over the promotion of human rights, or vice versa, as Kirby J's overriding constitutional objective remains for his Honour to determine.
[79] For a recent example of Kirby J's application of his approach of shaping the Constitution to secure and promote good government, reconsider his statement in Truth About Motorways (2000) 169 ALR 616 at 653: "Subject to the Constitution, no attempt should be made to import unexpressed restrictions." (emphasis added).
[80] Hughes (2000) 171 ALR 155 at 170 (emphasis added).