StoriaGiornale di costituzionale n. 24 / II semestre 2012
The Commonwealth of Australia: Themes and Traditions in Australian Constitutional Law and History Il Commonwealth australiano: temi e tradizioni nella storia e nel diritto costituzionale australiano
eum > edizioni università di macerata Giornale di Storia costituzionale / Journal of Constitutional History Direttore responsabile n. 24 / II semestre 2012 Issue n° 24 / 2nd semester 2012 Angelo Ventrone Registrazione al Tribunale di Macerata n. 463 dell’11.07.2001
Chief Editors Editore / Publisher Luigi Lacchè, Roberto Martucci, Luca Scuccimarra Edizioni Università di Macerata International Board Via Carducci, 63/a – 62100 Macerata Bruce Ackerman (University of Yale), Vida Azimi (CNRS-Cersa, Paris T (39) 0733 2586081 – F (39) 0733 2586086 II), Bronislaw Backo (Université de Genève), Olivier Beaud (Université [email protected] Paris II, Panthéon-Assas), Giovanni Busino (Université de Lausanne), http://eum.unimc.it Bartolomé Clavero (Universidad de Sevilla), Francis Delperée Distribuited by PDE (University of Leuven), Alfred Dufour (Université de Genève), Dieter ISBN 978-88-6056-347-7 Grimm (Wissenschaftskolleg zu Berlin), António Manuel Hespanha ISSN 1593-0793 (Universidade Nova de Lisboa), Martti Koskenniemi (University of Helsinki), Lucien Jaume (CNRS-Cevipof, Paris), Peter L. Lindseth Tipografia / Printer (University of Connecticut), Martin Loughlin (London School of NonSoloStampa, Camerano (AN) Economics & Political Science), Heinz Mohnhaupt (Max-Planck Institut für Europäische Rechtsgeschichte, Frankfurt am Main), La rivista è pubblicata con un finanziamento del Ministero dei Beni Peter S. Onuf (University of Virginia), Michel Pertué (Université Culturali. Questo numero è stato finanziato con i fondi della ricerca d’Orléans), Jack Rakove (University of Stanford), Dian Schefold PRIN “La dimensione costituzionale della giustizia e i paradigmi del (Universität zu Bremen), Michael Stolleis (Max-Planck-Institut für processo politico nello Stato liberale” (2009 – prot. 2009LKRCFE_001). Europäische Rechtsgeschichte, Frankfurt am Main), Michel Troper This Journal is published thanks to the financial help of the Italian (Université de Paris Ouest-Nanterre-La Défense), Joaquin Varela Ministry of Culture. This issue was funded by the PRIN “La dimensione Suanzes-Carpegna (Universidad de Oviedo), H.H. Weiler (New York costituzionale della giustizia e i paradigmi del processo politico nello Stato University), Augusto Zimmermann (Murdoch University). liberale” (20o9 – prot. 2009LKRCFE_001).
Board of Editors In copertina: The Big Picture, the opening of the Parliament of Ronald Car, Ninfa Contigiani, Paola Persano, Monica Stronati Australia (9 May 1901, Melbourne). Painted by Tom Roberts (1853- Editors’ Assistant 1861) (Photo from Wikipedia) Antonella Bettoni Finito di stampare nel mese di dicembre 2012 Address Printed in the month of december 2012 Giornale di Storia costituzionale, Laboratorio di storia costituzionale Prezzo di un fascicolo / Single issue price “A. Barnave”, Università di Macerata euro 30 piazza Strambi, 1 – 62100 Macerata, Italy Arretrati / Back issues [email protected] euro 30 www.storiacostituzionale.it Abbonamento annuo (due fascico li) / Annual Subscription rates (two I testi inviati alla redazione sono sottoposti a referaggio anonimo issues) da parte di due esperti selezionati dalla Direzione sulla base delle Italy, euro 43; European Union, euro 56; U.S.A. and other countries, proprie competenze e interessi di ricerca. Responsabili del processo euro 82 di valutazione sono i Direttori della rivista. The papers submitted for publication are passed on two anonymous Gli abbonamenti possono essere sottoscritti tramite: referees (double-blind paper review), which are chosen by the bonifico bancario a Banca Marche, IBAN IT75 J060 5513 4010 0000 Chief Editors on the base of their expertise. The Chief Editors are 0018 563 BIC BAMAIT3AXXX responsible for the peer review process. Please remit amount due in Euro drawn on Banca delle Marche, IBAN I libri per recensione, possibilmente in duplice copia, vanno inviati IT75 J060 5513 4010 0000 0018 563 BIC BAMAIT3AXXX payable to alla Segreteria di redazione. La redazione si rammarica di non potersi Edizioni Università di Macerata impegnare a restituire i dattiloscritti inviati. Books for review should be submitted, if possible in two copies, to For further information, please contact: the Editors’ Assistants. The Editors regret the fact that they cannot [email protected] commit themselves to sending back received books and papers to the T (+39) 0733-258 6080 (Mon.-Fri.: 10am-1pm) authors. F (+39) 0733-258 6086
Il Giornale di Storia costituzionale è ind icizzato nelle seguenti banche Gli abbonamenti non disdetti entro il 31 dicembre si intendono dati / The Journal of Constitutional History is indexed in the following rinnovati per l’anno successivo. databases: Subscriptions which are not cancelled by the 31st of December are Scopus – Elsevier; Heinonline; Historical Abstracts – EBSCO; considered renewed for the next year. Summon by Serial Solutions (full-text dal 01.01.2005); Google Scholar; DoGi (Dottrina Giuridica) – ITTIG (Istituto di Teoria e Tecniche dell’Informazione Giuridica)-CNR; BSN (Bibliografia Storica Nazionale); AIDA (Articoli Italiani di Periodici Accademici); Catalogo Italiano dei Periodici – ACNP; Casalini Libri; EUM (Edizioni Università di Macerata). Contents / Sommario
giornale di storia costituzionale n. 24 / II semestre 2012 journal of constitutional history n. 24 / II semester 2012
The Commonwealth of Australia: Themes Directions and Traditions in Australian Constitu- tional Law and History / Il Commonwealth 49 The External Affairs Power in Australia and australiano: temi e tradizioni nella storia in Germany: Different Solutions, Similar e nel diritto costituzionale australiano Outcome? / Il potere degli Affari esteri in Australia e in Germania: diverse soluzioni, analogo risultato? jürgen bröhmer 5 Introduction: The Commonwealth of Australia / Introduzione. Il Commonwealth australiano 65 Engineers: The Case that Changed Austral- augusto zimmermann ian Constitutional History / Engineers: il caso che cambiò la storia costituzionale au- straliana michelle evans Foundations 81 The Power of the Purse: An Examination 23 ‘Una società di società’: Why Australia is a of Fiscal Federalism in Australia / Il potere Federation / ‘Una società di società’: perché della borsa: un esame del federalismo fiscale l’Australia è una federazione in Australia nicholas aroney lorraine finlay
35 Why Australia Does Not Have, and Does 95 The Australian Constitution and Expres- Not Need, a National Bill of Rights / Perché sive Reform / La Costituzione Australiana e l’Australia non ha, e non ha bisogno di avere, la qualità espressiva della riforma un Bill of Rights nazionale eric ghosh james allan Contents
117 Interpreting the Australian Constitution: Express Provisions and Unexpressed Gen- eral Principles / Interpretare la Costituzione Australiana: provvedimenti espressi e principi generali inespressi jeffrey goldsworthy
133 The Validity of Henry VIII Clauses in Aus- tralian Federal Legislation / La validità delle Clausole di Enrico VIII nella legislazio- ne federale australiana gabriël a. moens, john trone
145 Australian State Courts and Chapter III of the Commonwealth Constitution – In- terpretation and Re-Interpretation and the Creation of Australian Constitutional “Orthodoxy” / I Tribunali di Stato austra- liani e il Capitolo III della Costituzione del Commonwealth – Interpretazione e re-inter- pretazione e la creazione della “Ortodossia” costituzionale australiana sarah murray
159 Authors / Autori
161 Abstracts
4 Introduction: The Commonwealth of Australia / Introduzione. Il Commonwealth australiano
augusto zimmermann
This special issue of Journal of government of every colony in Australia the Constitutional History is focused on themes power to amend the common law received and traditions in Australia’s constitutional from England or to amend or repeal law and history. Written by leading English statutes that were in force in the Australian legal academics, the articles colony under the doctrine of reception. contained in this issue were especially The British Parliament could still legislate prepared for a European public who may for the colonies if it indicated that the law not be entirely familiar with the country’s was also to apply to them. rich constitutional history. Held between 1891 and 1899, Australia was colonised by Britain, and representatives of every colony in Australia its path towards independence was gradual. attended constitutional conventions It is not possible to identify a single event which agreed on the elaboration of a that marked the final break with the federal Constitution. Upon the request British Empire. Between 1855 and 1890, of these colonies, the ‘Constitution of responsible government was achieved, and the Commonwealth of Australia Act’ was the Governors of the several colonies were passed by the British Parliament on 5 July bound to invite the leader of the largest 1900, with Queen Victoria assenting to the party or coalition in Parliament to form the Bill four days later. In September 1900, the government. The majority party leader and Queen proclaimed that the Commonwealth the other members in his Cabinet remained of Australia would come into existence on 1 in office as long as they commanded the January 1901. support of Parliament. In 1931, the British Parliament passed In 1865, the British Parliament passed the Statute of Westminster, stating that the Colonial Laws Validity Act, giving the the Colonial Laws Validity Act would no giornale di storia costituzionale / journal of constitutional history 24 / II 2012 5 Introduction longer apply to the legislative powers of Inspired by the draft of the American the Commonwealth Parliament. Likewise, Constitution, the first three chapters the British Parliament would cease to of the Commonwealth Constitution are make laws relating to the Commonwealth, headed ‘The Parliament’, ‘The Executive unless explicitly requested to do so by the Government’, and ‘The Judicature’. federal Parliament. In 1942, the Statute of However, the relationship between Westminster Adoption Act (Cth) adopted the the legislative and the executive arms Statute of Westminster into Australian law reflects the British (Westminster) system with retrospective effect to 1939. of government and its conventions of Because the Statute of Westminster 1931 responsible government, whereby a (UK) did not apply to the Parliaments of the strict separation of powers between Australian states, the British Parliament the legislative and the executive is not 1 passed the Australia Act 1986 to remove its maintained . Responsible government is a powers to make laws for Australia. The system in which the Executive Government Colonial Laws Validity Act 1865 (UK), which (the Prime Minister and other Ministers) is had given no power to colonial (state) accountable to the House of Representatives, parliaments to pass legislation having an which is in turn accountable, under the extra-territorial effect, was repealed and principle of representative government, to the states finally received legislative power the electorate. In Nationwide News Pty v Wills to introduce extra-territorial laws. The (1992) 108 ALR 681, the High Court defined right of appeal from state courts to the representative government, together with Privy Council was also abolished. The right the federal system and the concept of of appeal from the High Court of Australia separation of powers, as ‘one of the three to the Privy Council had already been main general doctrines of government abolished by the Privy Council (Appeals from which underlie the Commonwealth the High Court) Act 1975 (Cth). Constitution and are implemented by its provisions’2. Whereas no rigid separation of powers exists between the legislative and executive Australia’s Constitutional Framework branches of government, the strict insulation of the judicial power from these two powers Australia has a federal system and a written comprises a fundamental element of the 3 (and rigid) constitution. Following the Commonwealth Constitution . Inspired American model, the Commonwealth once again by the American model, Constitution provides for a sharing of Section 76 of the Constitution allows legislative powers between the federal the Commonwealth Parliament to grant Parliament and the Parliaments of the original jurisdiction to the High Court in states. Each state has its own legislative any matter ‘arising under this Constitution, power to elaborate their constitutions, or involving its interpretation’. parliaments, governments and laws, Initially, the Constitution could be provided the explicit limitations in the amended either by Section 128 or by an Commonwealth Constitution are respected. Act of the Imperial (British) Parliament.
6 Zimmermann
The power of this Parliament to amend the Absence of Bill of Rights Constitution unilaterally was terminated by the Statute of Westminster 1931 (UK), Curiously, the Commonwealth Constitution which became operational in Australia is devoid of a bill of rights because only in 1942. Until 1986, the Constitution its framers believed that ‘a Federal could theoretically be amended by an Act Constitution, which brings about a division of the British Parliament upon request of of power in actual practice, is a more secure the Commonwealth Parliament. This has protection for basic political freedoms never happened, and such a provision was than a bill of rights’4. Since this federal repealed with the passage of the Australia Constitution is a document of limited Act 1986 (Cth) and (UK). powers, the federal government has only As it stands, the Constitution can the powers granted by this document, and only be amended in accordance with the no more. Arguably, a bill of rights could be mode of alteration provided by Section used as a pretext for the expansion of federal 128. To amend it in line with Section 128, power. Sir Anthony Mason, when he was the Commonwealth Parliament has to Chief Justice of the High Court of Australia, submit the proposed change to a popular commented: ‘The prevailing sentiment referendum in which the people must of the framers that there was no need to decide on whether to approve or reject the incorporate a comprehensive Bill of Rights proposed change. For the referendum to in order to protect the rights and freedoms pass successfully, the proposed change of citizens… was one of the unexpressed needs to receive the support a majority in assumptions on which the Constitution was the electorate as a whole as well as a majority drafted’5. of electors in a majority of states. It is true, however, that various sections of Since 1901, 44 proposals have been the Commonwealth Constitution recognise put to the Australian electorate. Only 8, or particular and specific forms of rights and 18 per cent, of them have been successful. freedoms, for example: jury trial (Section In the last constitutional referendum, in 80); religious freedom (Section 116); 1999, proposals for the establishment freedom from discrimination (Section 117); of a republic as well as adoption of a new right to property – acquisition of property preamble to the Constitution were soundly must be on just terms (Section 51); and rejected. Curiously, 26 of these questions freedom of trade (Section 92). But generally put to the people through referenda speaking, under the Australian model of involved an attempt to enlarge the powers constitutionalism, one proceeds on the of the central government at the expense assumption of full rights and freedoms, and of that of the states. Only two of such then turns to the law only to see whether proposals were carried, namely the social there are exceptions to the rule. This being services proposal and the proposal to delete the case, it has been said that ‘Australia is a a discriminatory reference to Aborigines in common-law country in which the State is 1967. This reveals the manifest will of the conceived as deriving from the law and not Australian people to resist the expansion of the law from the State’6. Commonwealth powers.
7 Introduction
Australia’s Federal System the federal government. Whereas this government is limited to such powers as Australia is a federation of six states and two given by the Constitution, the remaining self-governing territories, the Australian residue is left undefined to the states7. Capital Territory and Northern Territory. The rationale for this was given by the These states and territories have their own leading federalist Sir Samuel Griffith at constitutions, parliaments, governments, the first constitutional convention in 1891: and laws. Each state maintains essentially ‘The separate states are to continue as the same relationship with the federal autonomous bodies, surrendering only so government. For example, Section 7 much of their powers as is necessary to the provides equal representation for every establishment of a general government; to state in the Senate. Likewise, Section do for them collectively what they cannot 51 (ii) restricts the power of the central do individually for themselves, and which government over taxation ‘so as not to they cannot do as a collective body for discriminate between states or parts of themselves’8. States’. Finally, Sections 51 (iii) and 88 As can be seen, the framers’ intention impose uniformity to bounties and custom was to confer on the people of each Australian duties throughout the nation, and Section state the right to decide for themselves most 99 informs that ‘the Commonwealth shall of their legal issues through their own local not, by any law or regulation of trade, legislatures according to their own local commerce, or revenue give preference to wishes. Thus A.V. Dicey, in a late edition one State or any part thereof over another of Introduction to the Study of the British State or any part thereof’. Constitution, stated: ‘The Commonwealth is The areas of federal legislative power in the strictest sense a federal government. are listed in Sections 51 and 52 of the It owes its birth to the desire for national Commonwealth Constitution. In addition unity… combined with the determination to express concurrent (Section 51) on the part of the several colonies to retain and exclusive (Section 52) powers, the as states of the Commonwealth as large Commonwealth Parliament has express a measure of independence as may be and implied incidental powers to deal with found compatible with the recognition of areas related to its grants of power within Australian nationality’9. Section 51. Accordingly, the topics granted to federal legislative include areas such as marriage, quarantine and defence. And yet, other major areas such as health, education The High Court of Australia and industrial relations were not included in the list of federal powers. The High Court of Australia originally The states were left with all the comprised Chief Justice Samuel Griffith remaining legislative powers. Indeed, one and Justices Edmund Barton and Richard of the main features of the Commonwealth O’Connor. Griffith was the leader of the Constitution is the express limitation on convention of 1891 and Barton in 1897-
8 Zimmermann
1898; O’Connor was one of Barton’s closest associates. These judges sought to protect the federal nature of the Commonwealth Constitution by applying two basic doctrines: ‘implied immunity of instrumentalities’ and ‘state reserved powers.’ Whereas ‘implied immunity of instrumentalities’ ensured that both the central and state governments remained immune from each other’s laws and regulations, ‘state reserved powers’ provided that the residual legislative powers of the states should not be undermined by Sir Samuel Walker Griffith (1845-1920): Twice the pre- an expansive reading of federal powers. mier of Queensland, that state's Chief Justice and au- Such doctrine appears to be manifested in thor of its criminal code, he is best known for his piv- otal role in drafting agreements that led to Federation Section 107 of the Constitution, which states and for being new nation’s first Chief Justice. (Photo that every power that is not explicitly given from Wikipedia) to the Commonwealth shall ‘continue’ with (or be reserved for) the Australian states. Unfortunately, these doctrines of ‘state The drafters intended to provide the reserved powers’ and ‘implied immunity of states with ‘original powers of local self- instrumentalities’ began to be undermined government, which they specifically insisted when Justices Isaacs and Higgins were would continue under the Constitution, appointed to the High Court in 1906. Isaacs subject only to the carefully defined and and Higgins had participated at the 1891 limited powers specifically conferred and 1897-1898 conventions, but they were upon the Commonwealth’10. Because their often in the minority in most of the debates intention was to allow these powers to and had no formal role in shaping the final ‘continue,’ they opted for defining only the draft of the Constitution. Under Isaacs’s federal powers specifically. As such, it is leadership, those doctrines were overturned correct to infer that the continuation of state by the High Court. For Isaacs, Section 107 powers in Section 107 is logically before was not about protecting state powers but the conferring of powers on the federal about continuing its exclusive powers and Parliament in Section 51. As Nicholas protecting them by express reservation Aroney points out, ‘such a scheme suggests in the Constitution. Of course this is a that there is good reason to bear in mind misreading of Section 107, which basically what is not conferred on the Commonwealth confirms that the state parliaments should by s.51 when determining the scope of what is have continued to exercise full legislative conferred. There is a good reason, therefore, powers except for those exclusively given to to be hesitant before interpreting federal the federal Parliament at Federation. heads of power as fully and completely as their literal words can allow’11.
9 Introduction
Inconsistency provides the Commonwealth Parliament with the power to make laws with respect This leads to the matter of inconsistency to external affairs. The federal Executive of laws. When a state law is inconsistent has entered into thousands of treaties on with a federal law, as is the case with most a wide range of matters. These treaties of the concurrent grants of power within are often related to topics not otherwise Section 51, Section 109 resolves the conflict covered by the enumerated powers of the by stating that ‘the latter (i.e., federal law) Commonwealth. However, the High Court shall prevail, and the former (i.e., state law) has decided that the use of external affairs shall, to the extent of the inconsistency, be by the Commonwealth is not restricted to invalid’. This being the case, it may appear its power to make laws with respect to the that Section 109 confirms the supremacy of external aspects of the subjects mentioned 13 the Commonwealth over the states. And yet, in Section 51 . two things must be said about this. First, Together with the regular operation only federal powers are explicitly limited by of Section 109 (inconsistency), the the Constitution, not state powers. Second, external affairs power offers the potential it is only a valid federal law that prevails to ‘annihilate State legislative power in over a state law. Hence, no inconsistency virtually every respect’14. Such a possibility arises if the federal law goes outside was once recognised by Justice Daryl the explicit limits of the Constitution, Dawson, who saw a broad interpretation of since the matter here no longer becomes external affairs as having ‘the capacity to one of inconsistency but rather of the obliterate the division of power which is a invalidity of the federal law on grounds of necessary feature of any federal system and unconstitutionality. our federal system in particular’15. But a controversial ‘test’ has been Undoubtedly, one of the least satisfactory applied by the courts to resolve matters aspects of the federal system is its vertical of inconsistency. Such a test has been fiscal imbalance. While the drafters of the instrumental in expanding federal powers Constitution wished to secure the states at the expense of the states. Inconsistency with a privileged financial position and is said to arise when the Commonwealth, independence, the courts have allowed for either expressly or impliedly, evinces a dramatic expansion of Commonwealth the intention to ‘cover the field.’ First taxation powers. In 1901, only the states mentioned in Clyde Enginnering Co Ltd v levied income tax. In 1942, however, the Cowburn (1926), and then endorsed by federal government sought to acquire the High Court in subsequent cases, the exclusive control over the income tax adoption of such a test, as Sir Harry Gibbs system, which was then confirmed by the indicated, ‘no doubt indicates that the High Court in the First Uniform Tax Case Courts have favoured a centralist point of (1942)16, and subsequently in the Second view rather than a federal one’12. Uniform Tax Case (1957)17, where the court The Court’s centralist approach can confirmed the Commonwealth’s income tax also be observed, for instance, in the system and its power to impose whatever interpretation of Section 51(xxix), which conditions it saw fit in granting money to
10 Zimmermann the states. As a result, the states have become professori di diritto australiani, gli articoli heavily dependent on the Commonwealth for contenuti in questo numero sono stati pre- their revenue, so that any semblance of federal parati in special modo per un pubblico eu- balance has largely disappeared. ropeo che potrebbe non essere interamente familiare con la ricca storia costituzionale del paese. L’Australia fu colonizzata dalla Gran Final Comments Bretagna e il percorso verso l’indipenden- za fu graduale. Non è possibile identifica- This issue of Journal of Constitutional re un singolo evento che segni la rottura History has been conceived with the finale con l’Impero britannico. Tra il 1855 objective of discussing the overall structure, e il 1890 fu ottenuto un governo responsa- institutional arrangements, doctrines and bile, e i Governatori delle numerose colo- organising principles of the Australian nie erano tenuti a invitare il leader del più constitutional system and its most grande partito o coalizione nel Parlamento important rules, principles and concepts. a formare il governo. Il leader del partito di Accordingly, the articles that are present in maggioranza e gli altri membri del suo ga- this issue introduce principles of Australian binetto rimanevano in carica fino a quando constitutionalism, such as representative essi avevano l’appoggio del Parlamento. and responsible government, judicial Nel 1865, il Parlamento britannico ap- review, and separation of powers. They provò il Colonial Laws Validity Act (Legge also involve relevant discussions of di Validità dei Diritti Coloniali), dando al constitutional interpretation; state governo di ogni colonia in Australia il po- constitutionalism; Australia’s federal tere di modificare il common law ricevuto system, including distribution of legislative dall’Inghilterra o di modificare o cassare and fiscal powers between Commonwealth leggi inglesi che erano in vigore nella co- and the states; inconsistency of law; lonia sulla base della dottrina della ricezio- Commonwealth legislative powers; ne. Il Parlamento britannico poteva ancora limitations on governmental power; and legiferare per le colonie se avesse indicato whether or not Australia should adopt a che il diritto andava applicato anche ad national bill of rights. We hope you will esse. find these articles both interesting and Fra il 1891 e il 1899, i rappresentanti di enjoyable. ogni colonia in Australia parteciparono a assemblee costituzionali che concordarono l’elaborazione di una Costituzione federale. Su richiesta di queste colonie, la ‘Constitu- *** tion of the Commonwealth of Australia Act’ (Legge di Costituzione del Commonwealth Questo numero speciale del Giornale di Australiano) fu approvata dal Parlamen- Storia Costituzionale ruota intorno a temi to britannico il 5 luglio 1900, ottenendo e tradizioni del diritto e della storia costi- l’approvazione della regina Vittoria quat- tuzionale australiana. Scritti da eminenti tro giorni dopo. Nel settembre del 1900, la
11 Introduction regina proclamò che il Commonwealth au- Struttura costituzionale australiana straliano sarebbe entrato in vigore il primo gennaio 1901. L’Australia ha un sistema federale e una Nel 1931, il Parlamento britannico ap- costituzione scritta (e rigida). Seguendo provò lo Statute of Westminster (Legge di il modello americano, la Costituzione del Westminster), che affermava che il Colonial Commonwealth prevede una suddivisione Laws Validity Act non si sarebbe più appli- dei poteri legislativi tra il Parlamento fede- cato ai poteri legislativi del Parlamento del rale e i Parlamenti degli Stati. Ogni Stato ha Commonwealth. Parimenti, il Parlamen- il potere legislativo per elaborare la propria to britannico avrebbe cessato di produrre costituzione, parlamento, governo e diritto, norme relative al Commonwealth, a meno a condizione che i limiti espliciti previsti che non fosse stato espressamente richie- nella Costituzione del Commonwealth sia- sto di fare ciò dal Parlamento federale. Nel no rispettati. 1942, lo Statute of Westminster Adoption Act Ispirati dalla bozza della costituzione (Cth) (Legge di Adozione della Legge di americana, i primi tre capitoli della Costi- Westminster (Commonwealth)) recepì lo tuzione del Commonwealth sono intitolati Statute of Westminster nel diritto australiano ‘The Parliament’ (il Parlamento), ‘The Ex- con effetto retroattivo al 1939. ecutive Government’ (il Governo esecu- Poiché lo Statute of Westminster del 1931 tivo), e ‘The Judicature’ (la Magistratura). del Regno Unito non si applicava ai Parla- Comunque, la relazione tra legislativo e menti degli Stati australiani, il Parlamento esecutivo riflette il sistema di governo bri- britannico approvò la Australia Act (Legge di tannico (Westminster) e le sue convenzioni Australia) nel 1986 per abolire i suoi poteri di governo responsabile, dove una rigida se- di legiferare per l’Australia. Il Colonial Laws parazione di poteri tra legislativo e esecutivo Validity Act del 1865 del Regno Unito, che non è mantenuta18. Il governo responsabile non aveva dato potere ai Parlamenti colo- è un sistema nel quale il Governo esecutivo niali (degli Stati) di approvare leggi aventi (il Primo Ministro e altri ministri) rispon- un effetto extraterritoriale, fu cassato e gli de alla House of Representative (Camera Stati finalmente ottennero potere legisla- dei Deputati), che risponde a sua volta, sulla tivo per introdurre leggi extraterritoria- base del principio di governo rappresenta- li. Anche il diritto di appello dei tribunali tivo, all’elettorato. In Nationwide News Pty degli Stati al Privy Council (Consiglio della v Wills (1992) 108 ALR 681, la High Court Corona) fu abolito. Il diritto di appello della (Alta Corte) ha definito il governo rappre- High Court of Australia (Alta Corte d’Au- sentativo insieme al sistema federale e al stralia) al Privy Council (Consiglio della concetto di separazione di poteri, come Corona) era stato già abolito dal Privy Coun- ‘one of the three main general doctrines of cil (Appeal from the High Court) Act 1975 (Cth) government which underlie the Common- (Legge del Consiglio della Corona (Appello wealth Constitution and are implemented da parte della Alta Corte) del 1975 (Com- by its provisions’19. (una delle tre principali monwealth)). dottrine generali di governo che sottostan- no alla Costituzione del Commonwealth e sono realizzate attraverso le sue norme).
12 Zimmermann
Dato che non esiste una rigida separa- Dal 1901 44 proposte di modifica sono zione di poteri tra i rami legislativo e ese- state sottoposte all’elettorato australiano. cutivo del governo, lo stretto isolamento del Solo 8, o il 18 per cento, di esse hanno ot- potere giudiziario da questi due poteri com- tenuto approvazione. Nell’ultimo referen- prende un elemento fondamentale della dum costituzionale, nel 1999, proposte per Costituzione del Commonwealth20. Ispirato stabilire una repubblica e per adottare un nuovamente al modello americano, l’artico- nuovo preambolo alla Costituzione furo- lo (section) 76 della costituzione consente al no respinte pesantemente. Curiosamen- Parlamento del Commonwealth di concede- te 26 di queste questioni poste al popolo re giurisdizione originale alla High Court su attraverso referendum comportavano un ogni questione ‘arising under this Consti- tentativo di allargare i poteri del governo tution, or involving its interpretation’ (che centrale a scapito di quello degli Stati. Solo sorgesse sotto questa Costituzione o com- due di tali proposte furono realizzate, pre- portante la sua interpretazione). cisamente la proposta di servizi sociali e la Inizialmente la Costituzione poteva es- proposta per cancellare un riferimento di- sere modificata o sulla base dell’articolo scriminatorio agli Aborigeni nel 1967. Ciò 128 o mediante una legge del Parlamento rivela il volere manifesto del popolo austra- imperiale (britannico). Il potere di questo liano di resistere all’espansione dei poteri Parlamento di riformare la Costituzione del Commonwealth. unilateralmente terminò con lo Statute of Westminster 1931 (UK), che entrò in vigore in Australia solamente nel 1942. Fino al 1986, la Costituzione poteva teoricamente esse- Assenza di un Bill of Rights (Carta dei Diritti) re emendata da una legge del Parlamento britannico su richiesta del Parlamento del Curiosamente, la Costituzione del Com- Commonwealth. Ciò non è mai successo e monwealth è priva di una carta dei diritti tale norma fu abrogata con l’approvazione perché i suoi compilatori credettero che ‘a dell’Australia Act 1986 (Cth) and (UK). Federal Constitution, which brings about Così come promulgata, la Costituzione a division of power in actual practice, is a può essere modificata solamente secondo more secure protection for basic politi- il modo di alterazione previsto dall’articolo cal freedoms than a bill of rights’21. (una 128. Per modificarla in linea con l’articolo Costituzione federale, che stabilisce una 128, il Parlamento del Commonwealth deve divisione dei poteri nella pratica effettiva, sottoporre la proposta di modifica a un re- è una più sicura protezione per le libertà ferendum popolare nel quale il popolo deve politiche basilari di una carta di diritti). decidere se approvare o respingere la mo- Poiché questa Costituzione federale è un difica proposta. Affinché il referendum sia documento di poteri limitati, il governo approvato con successo, la modifica propo- federale ha solamente i poteri concessi da sta deve ottenere il supporto di una mag- questo documento e nessun altro. Presumi- gioranza dell’elettorato nella sua interezza, bilmente una carta di diritti potrebbe esse- così come di una maggioranza di elettori re usata come un pretesto per l’espansione nella maggioranza degli Stati. del potere federale. Sir Anthony Mason,
13 Introduction quando era giudice supremo della High tralian Capital Territory (Territorio della Court of Australia (Alta Corte d’Australia), Capitale australiana) e il Northern Territory commentò: ‘The prevailing sentiment of (Territorio Settentrionale). Questi Stati e the framers that there was no need to in- Territori hanno le loro proprie costituzio- corporate a comprehensive Bill of Rights in ni, parlamenti, governi e diritti. Ogni Stato order to protect the rights and freedoms of mantiene essenzialmente la stessa rela- citizens… was one of the unexpressed as- zione con il governo federale. Per esempio sumptions on which the Constitution was l’articolo 7 attribuisce ad ogni Stato ugua- drafted’22. (Il sentimento prevalente degli le rappresentanza in Senato. Similmente, estensori che non ci fosse bisogno di incor- l’articolo 51 (ii) limita il potere del governo porare un’estesa carta dei diritti per pro- centrale per quanto concerne la tassazione teggere i diritti e le libertà dei cittadini… fu ‘so as not to discriminate between States uno dei presupposti inespressi sui quali la or parts of States’ (in modo da non discri- Costituzione fu redatta). minare tra Stati e parti di Stati. Infine gli È comunque vero che vari articoli della articoli 51 (iii) e 88 impongono uniformi- Costituzione del Commonwealth ricono- tà a premi e imposte doganali in tutta la scono particolari e specifiche forme di di- nazione, e l’articolo 99 informa che ‘the ritti e libertà, per esempio: processo con Commonwealth shall not, by any law or reg- giuria (articolo 80); libertà religiosa (arti- ulation of trade, commerce, or revenue give colo 116); libertà da discriminazione (arti- preference to one State or any part thereof colo 117); diritto alla proprietà – l’acquisi- over another State or any part thereof’ (il zione di proprietà deve avvenire in termini Commonwealth non deve, mediante legge o equi (articolo 51); e libertà di commercio regolamento di scambio, commercio, o im- (articolo 92). In termini generali, secondo poste, dare preferenza ad uno Stato o ad una il modello australiano di costituzionalismo, parte di esso rispetto ad un altro Stato o ad si procede all’assunzione di pieni diritti e una parte di esso). libertà, e poi tocca al diritto verificare se ci Le aree del potere legislativo federale sono eccezioni alla regola. Essendo questo sono elencate negli articoli 51 e 52 della Co- il caso, è stato detto che ‘Australia is a com- stituzione del Commonwealth. In aggiunta mon-law country in which the State is con- ai poteri espressi concorrenti (articolo 51) ceived as deriving from the law and not the e esclusivi (articolo 52), il Parlamento del 23 law from the State’ . (l’Australia è un paese Commonwealth ha poteri accessori espres- di common law in cui la Stato è concepito si o impliciti per gestire le aree correlate ai come derivante dal diritto e non il diritto poteri concessigli dall’articolo 51. Confor- dallo Stato). memente, i settori concessi al potere legi- slativo federale includono aree quali il ma- trimonio, la quarantena e la difesa. Eppure altre aree rilevanti come salute, istruzione e Il sistema federale australiano relazioni industriali non sono state incluse nella lista dei poteri federali. L’Australia è una federazione di sei Stati e di Agli Stati sono stati lasciati i rimanenti due territori dotati di autogoverno, l’Aus- poteri legislativi. Infatti una delle princi-
14 Zimmermann pali caratteristiche della Costituzione del monwealth è, nel suo significato più stretto, Commonwealth è di esprimere i limiti al un governo federale. Deve la sua nascita al potere del governo federale. Mentre que- desiderio di unità nazionale… combinato sto governo è limitato a quei poteri che gli con la determinazione da parte delle nu- sono dati dalla Costituzione. Il residuo ri- merose colonie di mantenere come Stati manente è lasciato indefinito per gli Stati24. del Commonwealth la più ampia misura di La ragione per ciò venne data dal leader del indipendenza che può essere trovata com- movimento federalista Sir Samuel Griffith patibile con il riconoscimento della nazio- alla prima assemblea costituzionale nel nalità australiana). 1891: ‘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 govern- L’High Court of Australia (Alta Corte ment; to do for them collectively what they d’Australia) cannot do individually for themselves, and which they cannot do as a collective body L’High Court of Australia (Alta Corte d’Au- 25 for themselves’ . (Gli Stati separati de- stralia) originalmente comprendeva il Giu- vono continuare come corpi autonomi, ri- dice Supremo Samuel Griffith e i Giudici nunciando solo a quel tanto di potere che è Edmund Barton e Richard O’Connor. Grif- necessario per la costituzione di un governo fith era il leader della assemblea del 1891 e generale; affinché faccia per loro collettiva- Barton nel 1897-98; O’Connor era uno dei mente quello che essi non possono fare in- più vicini collaboratori di Barton. Questi dividualmente per se stessi, e che essi non giudici cercarono di proteggere la natura possono fare come corpo collettivo per se federale della Costituzione del Common- stessi). wealth applicando due dottrine basilari: Come si può vedere, l’intenzione degli ‘implied immunity of instrumentalities’ estensori fu di conferire al popolo di cia- (immunità implicita degli enti) e ‘state re- scuno Stato australiano il diritto di decide- served powers’ (poteri riservati dello Stato). re per se stessi la maggior parte delle que- Mentre l’‘implied immunity of instru- stioni giuridiche attraverso la loro propria mentalities’ (immunità implicita degli legislazione locale secondo i loro propri enti) garantiva che i governi sia centrali che desideri locali. Così A.V. Dicey, in una delle degli Stati rimanevano immuni dai diritti e ultime edizioni dell’Introduction to the Study regolamenti gli uni degli altri, gli ‘state re- of the British Constitution, affermò: ‘The served powers’ (poteri riservati dello Stato) Commonwealth is in the strictest sense a facevano sì che i poteri residuali degli Stati federal government. It owes its birth to the non dovessero essere minati da una lettura desire for national unity… combined with espansiva dei poteri federali. Tale dottrina the determination on the part of the several è resa manifesta nell’articolo 107 della Co- colonies to retain as states of the Common- stituzione che afferma che ogni potere che wealth as large a measure of independence non è dato esplicitamente al Commonwe- as may be found compatible with the recog- alth deve permanere negli (o essere riser- nition of Australian nationality’26. (Il Com- vato agli) Stati australiani.
15 Introduction
Sfortunatamente queste dottrine di continuazione dei poteri degli Stati prevista ‘state reserved powers’ (poteri riserva- all’articolo 107 logicamente precede il con- ti dello Stato) e ‘implied immunity of in- ferimento dei poteri al Parlamento federale strumentalities’ (immunità implicita degli contenuto nell’articolo 51. Come Nicholas enti) cominciò ad essere intaccata quando Aroney indica ‘such a scheme suggests that i Giudici Isaacs a Higgins furono nomi- there is good reason to bear in mind what is nati alla High Court (Alta Corte) nel 1906. not conferred on the Commonwealth by s.51 Isaacs e Higgins avevano partecipato alle when determining the scope of what is con- assemblee del 1891 e 1897-98, ma essi era- ferred. There is a good reason, therefore, no spesso in minoranza nella maggior parte to be hesitant before interpreting federal dei dibattiti e non ebbero nessun ruolo for- heads of power as fully and completely as male nella costruzione del progetto finale their literal words can allow’28 (tale sche- della Costituzione. Sotto la guida di Isaacs, ma suggerisce che c’è una buona ragione queste dottrine furono ribaltate dalla High per considerare che cosa non è conferito al Court (Alta Corte). Per Isaacs l’articolo 107 Commonwealth dall’articolo 51 quando si non concerneva la protezione dei poteri de- determina lo scopo di che cosa è conferito. gli Stati, ma la continuazione dei suoi poteri C’è dunque una buona ragione per esitare esclusivi e la loro protezione attraverso la prima di interpretare l’insieme dei poteri riserva espressa nella Costituzione. Certa- federali così pieni e completi come le paro- mente questa è una lettura errata dell’arti- le letteralmente possono consentire). colo 107, che fondamentalmente conferma che i parlamenti degli Stati avrebbero do- vuto continuare ad esercitare pieni poteri legislativi ad eccezione di quelli esclusiva- Incompatibilità mente attribuiti al parlamento federale al momento della Federazione. Ciò conduce alla questione delle incompa- Gli estensori intesero fornire gli Stati di tibilità dei diritti. Quando un diritto degli ‘original powers of local self-government, Stati è incompatibile con un diritto federa- which they specifically insisted would con- le, come accade nel caso delle concessioni tinue under the Constitution, subject only concorrenti di potere all’interno dell’ar- to the carefully defined and limited powers ticolo 51, l’articolo 109 risolve il conflit- specifically conferred upon the Common- to affermando che ‘the latter (i.e., federal wealth’27. (poteri originali di autogoverno law) shall prevail, and the former (i.e., state locale, che essi specificamente insistettero law) shall, to the extent of the inconsisten- sarebbero continuati sotto la Costituzione, cy, be invalid’ (quest’ultimo (cioè il diritto soggetti solamente ai poteri attentamente federale) deve prevalere, e il primo (cioè il definiti e limitati specificamente conferiti diritto degli stati) deve, nella misura in cui al Commonwealth). In quanto la loro in- è incompatibile, essere invalido). Questo tenzione era di consentire a questi poteri essendo il caso, può apparire che l’articolo di ‘continuare’, essi optarono di definire 109 conferma la supremazia del Common- solamente i poteri federali in modo spe- wealth sugli Stati. Eppure, due cose devono cifico. Pertanto è corretto desumere che la dirsi a questo proposito. Primo, solamente
16 Zimmermann i poteri federali sono esplicitamente limi- Insieme al regolare funzionamento tati dalla Costituzione, non i poteri statali, dell’articolo 109 (incompatibilità), il po- Secondo, è solamente un diritto federale tere degli affari esteri offre il potenziale di valido che prevale sopra il diritto degli Sta- ‘annihilate State legislative power in vir- ti. Per cui, nessuna incompatibilità sorge tually every respect’31 (annullare il potere se il diritto federale supera i limiti espliciti legislativo statale virtualmente sotto ogni della Costituzione, poiché qui non è più una rispetto). Tale possibilità fu una volta ri- questione di incompatibilità, ma piuttosto conosciuta dal Giudice Daryl Dawson, che di invalidità del diritto federale sulla base vide una interpretazione estesa degli affari della sua incostituzionalità. esteri come avente ‘the capacity to oblite- Però un ‘esame’ controverso è stato ap- rate the division of power which is a neces- plicato dalle corti per risolvere questioni sary feature of any federal system and our di incompatibilità. Tale esame è stato stru- federal system in particular’32 (la capacità mentale per l’espansione dei poteri fede- di obliterare la divisione di potere che è un rali a discapito degli Stati. Incompatibilità carattere necessario di ogni sistema fede- si dice sorge quando il Commonwealth, rale e del nostro sistema in particolare). espressamente o implicitamente, manifesta Indubbiamente, uno dei meno sod- l’intenzione di ‘coprire il campo’. Dappri- disfacenti aspetti del sistema federale è ma menzionata in Clyde Enginnering Co Ltd il suo squilibrio fiscale verticale. Mentre v Cowburn (1926), e poi avallata dalla High gli estensori della Costituzione desidera- Court (Alta Corte) in casi successivi, l’ado- rono garantire gli Stati con una posizione zione di tale esame, come Sir Harry Gibbs e indipendenza finanziaria privilegiata, indicò, ‘no doubt indicates that the Courts le corti hanno consentito una drammati- have favoured a centralist point of view ca espansione dei poteri di tassazione del rather than a federal one’29. (senza dubbio Commonwealth. Nel 1901, soltanto gli Stati indica che le Corti hanno favorito un punto imponevano imposte sul reddito. Nel 1942, di vista centralista piuttosto che federale). comunque, il governo federale cercò di ac- L’approccio centralista della Corte quisire controllo esclusivo sul sistema di può anche essere osservato, per esempio, tassazione sul reddito, che fu poi conferma- nell’interpretazione dell’articolo 51 (xxix), to dall’High Court (Alta Corte) nel First Uni- che attribuisce al Parlamento del Common- form Tax Case (1942)33, e successivamente wealth il potere di legiferare rispetto agli nel Second Uniform Tax Case (1957)34, dove affari esteri. L’Esecutivo federale è entrato la corte confermò il sistema di tassazio- a far parte di migliaia di trattati concernenti ne del reddito del Commonwealth e il suo una vasta gamma di questioni. Questi tratta- potere di imporre qualsivoglia condizione ti sono spessi collegati a temi non altrimenti che considerava idonea a assegnare denaro coperti dai poteri elencati del Commonwe- agli Stati. Come risultato, gli Stati sono di- alth. Comunque l’High Court (Alta Corte) ha ventati pesantemente dipendenti dal Com- deciso che l’uso degli affari esteri da parte monwealth per le loro entrate, in modo tale del Commonwealth non è ristretto al suo po- che ogni sembianza di equilibrio federale è tere di legiferare riguardo agli aspetti esteri largamente scomparsa. delle materie menzionate nell’articolo 5130.
17 Introduction
Commenti finali Stati; il sistema federale australiano, com- presa la distribuzione di poteri legislativi e Questo numero del Giornale di Storia Co- fiscali tra il Commonwealth e gli Stati; in- stituzionale è stato concepito con l’obiet- compatibilità di diritto; poteri legislativi tivo di discutere la struttura generale, gli del Commonwealth; limitazioni ai poteri accordi istituzionali, le dottrine e i principi di governo; e se l’Australia debba adottare che organizzano il sistema costituzionale oppure no una carta dei diritti nazionale. australiano e le sue più importanti regole, Speriamo che possiate trovare questi arti- principi e concetti. Di conseguenza, gli ar- coli interessanti e piacevoli da leggere. ticoli che sono presenti in questo numero introducono principi del costituzionalismo australiano, come governo responsabile e rappresentativo, revisione giudiziale, e se- parazione dei poteri. Essi includono anche discussioni rilevanti sull’interpretazione costituzionale; il costituzionalismo degli
1 Victorian Stevedoring & General Sydney, Official Report of the (Industrial Relations Act) (1996) Contracting Co Pty Ltd & Meakes v National Australasian Convention 187 CLR 416, p. 9. Dignan (1931) 46 CLR 73. Debates, 1891, pp. 31-32. 16 South Australia v Commonwealth 2 Nationwide News Pty v Wills (1992) 9 A.V. Dicey, Introduction to the (1942) 65 CLR 373. 108 ALR 681, p. 721, per Deane Study of the Constitution (1885), 17 Victoria v Commonwealth (1957) and Toohey JJ. Indianapolis, Liberty Fund, 1982, 99 CLR 575. 3 New South Wales v Commonwealth p. 387. This edition is a reprint of 18 Victorian Stevedoring & General (Wheat Case) (1915) 20 CLR the eighth edition published by Contracting Co Pty Ltd & Meakes v 54. See also: R v Kirby; Ex parte MacMillan in 1915. Dignan (1931) 46 CLR 73. Boilermakers’ Society of Australia 10 N. Aroney, Constitutional Choices 19 Nationwide News Pty v Wills (1992) (Boilermakers’ case) (1956) 94 CLR in the ‘Work Choices’ Case, or What 108 ALR 681, p. 721, per Deane 259. Exactly is Wrong with the Reserved and Toohey JJ. 4 H. Gibbs, A Constitutional Bill of Powers Doctrine, in «Melbourne 20 New South Wales v Commonwealth Rights, in K. Baker, An Australian University Law Review», vol. 31, (Wheat Case) (1915) 20 CLR Bill of Rights: Pro and Contra, n. 1, 2008, p. 15. 54. See also: R v Kirby; Ex parte Melbourne, Institute of Public 11 N. Aroney, The Ghost in the Boilermakers’ Society of Australia Affairs, 1986, p. 325. Machine: Exorcising Engineers, (Boilermakers’ case) (1956) 94 CLR 5 Australian Capital Television Pty Sydney, Samuel Griffith Society, 259. Ltd v The Commonwealth (1992) 2002, p. 69,
18 Zimmermann
24 M. Cooray, A Threat to Liberty, 27 N. Aroney, Constitutional Choices n. 1, 1994, p. 18. in K. Baker (edited by), An in the ‘Work Choices’ Case, or What 30 R v Burgess; Ex parte Henry (1936) Australian Bill of Rights: Pro and Exactly is Wrong with the Reserved 55 CLR 608, p. 641. Contra, Sydney, Institute of Public Powers Doctrine, in «Melbourne 31 Gibbs, The Decline of Federalism? Affairs, 1986, p. 35. University Law Review», vol. 31, cit., p. 5. 25 S.W. Griffith, Convention Debates, n. 1, 2008, p. 15. 32 Victoria v Commonwealth (Industrial Sydney, Official Report of the 28 N. Aroney, The Ghost in the Relations Act) (1996) 187 CLR 416, National Australasian Convention Machine: Exorcising Engineers, p. 9. Debates, 1891, pp. 31-32. Sydney, Samuel Griffith Society, 33 South Australia v Commonwealth 26 A.V. Dicey, Introduction to the 2002, p. 69,
19
Foundations
‘Una società di società’: Why Australia is a Federation*
nicholas aroney
political systems in this way also sheds light [La repubblica federativa] una società di società on how we understand systems that are not che ne formano una nuova, la quale si può in- grandire con altri associati1. ordinarily classified as federal, such as the aggregation of the Member States into the It is commonplace these days to draw a European Union3, and the dis-aggregation distinction between aggregative and dis- of political authority in the United King- aggregative federal systems2. Aggregative dom through processes of devolution to systems come about when previously in- Scotland, Northern Ireland and Wales4. dependent political communities agree But if the distinction between aggre- to pursue a set of shared goals usually by gation and disaggregation is illuminating, establishing a set of shared institutions it can also be somewhat oversimplifying, through which those goals will be pursued. for the categories of aggregation and dis- Disaggregative systems come into being aggregation are like Weber’s ideal types: when a single political community decides they function as abstract conceptual forms in certain respects to relinquish the unified to which particular empirical systems con- determination of its political goals in fa- form in varying degrees. Or, to put it an- vour of a set of smaller political communi- other way: the sharpness of the distinction ties, the institutions of which it establishes. between aggregation and disaggregation This commonplace distinction between depends upon a strict view of the basis upon aggregation and disaggregation helps us to which a collection of separate political understand both the similarities and the communities agree to aggregate, or a single differences between classically aggregative political community decides to disaggre- federal systems, such as the United States gate. Typically, this involves an ascription and Switzerland, and disaggregative ones, of “sovereignty” to the relevant constituent such as Spain and Belgium. Thinking about political community or communities. This giornale di storia costituzionale / journal of constitutional history 24 / II 2012 23 Foundations
jected by several Cantons and yet imposed upon them8. Similarly, the proposition that devolution in the United Kingdom derives simply from an exercise of sovereign legis- lative authority by the British Parliament, while plainly suggested by the legislative form of the devolution statutes, is under- mined at least to some degree by the asser- tion of a kind of political sovereignty in the name of the Scottish people9. And again, similar observations can be made about the assertion of self-constituting authori- ty by the ancient regions of Catalonia, the Basque Country and elsewhere in Spain10. It is even possible to consider decentralisa- tion within Italy in a comparable light11. No system is purely aggregative or disaggrega- tive essentially because sovereignty itself is never pure; its purity can only be sustained as a narrow juristic doctrine that has only Sir Edmund Barton (1849-1920): Australian politi- cian and judge, served as the first Prime Minister of a “more or less” relationship to the actu- Australia and became a founding justice of the High al exercise of political power and effective Court of Australia. (Photo from Wikipedia) legal authority12. It is in the complex rela- tionship between law and politics13 that the aggregative and disaggregative dynamics of is relatively easy to assert in relation to the specific federal systems are characteristi- European Union, for despite the “trans- cally embedded. Here, the particular char- formative constitutionalisation” that is acteristics of the Australian and Canadian said to have occurred5, the Union is clearly federal systems are especially illuminating. founded upon a series of treaties between For if the United States and Switzerland lie the Member States, the presupposition at one end of the aggregation/disaggrega- of which is the equal sovereignty of each tion spectrum, and Spain and Belgium at state at international law6. But the matter the other, Australia and Canada surely lie is somewhat less straightforward in the somewhere in the middle. For in formal case of the United States, where the orig- juristic doctrine, both of the latter federa- inal sovereignty of the constituent states tions came into being as a consequence of is sometimes challenged by the view that Imperial statutes enacted by virtue of the independence from Britain was actually sovereign authority of the British Parlia- secured by them collectively as “the Unit- ment14. Yet both federal systems, and es- ed States”7, and it is likewise somewhat pecially the Australian, came about as the difficult in the case of Switzerland, where result of activity and initiative within the the Constitution of 1848 was actually re- constituent colonies15.
24 Aroney
The British authorities long had hopes colonies (that is, all except Western Aus- that the Australian colonies would one tralia) in the 1850s17. By the mid-1860s, day be united along federal lines16. Such a this included the power to amend their own scheme had many advantages from an Im- constitutions18. Thus, when the British au- perial point view. It would simplify the task thorities began pressing for some form of of imperial administration; it would enable federal union among the colonies around the colonies to be more efficiently organ- this time, it was understandably resisted ised into a common defence; and it would by the colonists as being contrary to the encourage free trade among the colonies. principle of local self-government. Having However, for a long time the political lead- recently acquired such powers of self-gov- ers of the several Australian colonies re- ernance, local politicians and voters were sisted these overtures. The reasons were not about to acquiesce in the loss of those several. When Australia was first settled rights to a consolidated national govern- by Britain in the late eighteenth century, ment. Samuel Griffith, then Premier of the British colonial interests were originally colony of Queensland, went so far as to say organised around the single colony of New that the Australian colonies had been “ac- South Wales, which at one point in time ex- customed for so long to self-government” tended over approximately two-thirds of that they had “become practically almost the entire Australian continent — a truly sovereign states, a great deal more sover- massive administrative unit, much larger eign states, though not in name, than the than any single colony located anywhere in separate States of America”19. If the colo- the world. Moreover, the entire colony was nies were to be federated, it would have to governed centrally from the major settle- be with their agreement and upon a basis ment at Sydney Cove. And because it was that fully respected their autonomy. Rev Dr originally established as a penal colony, it John Dunmore Lang, Head of the Presbyte- was also governed autocratically. Howev- rian College in Sydney and a member of the er, over the course of time, two important N.S.W. Parliament — whom Charles Duffy changes occurred. First, the colonies were said had “reared a generation of students increasingly occupied by free settlers, who destined to become public men” — fervent- resented being governed by an autocratic ly believed in a federation of the Australi- state, and demanded the right to self-gov- an colonies as “separate and independent ernment. Second, separate settlements communities” under “the law of nature and were established in Port Phillip Bay (mod- the ordinance of God”. Lang particular- ern Melbourne), Moreton Bay (Brisbane), ly derived inspiration from the American Swan River (Perth) and Adelaide. While Union “as exemplified in the New England Melbourne and Brisbane were still techni- States”, a system under which the states en- cally within New South Wales, they resent- joyed “complete independence; that is, the ed being governed from such a distance entire control of all matters affecting their and demanded separation as independent interests, as men and as citizens, in every colonies. possible way”. Lang urged that the Austral- Parliamentary responsible government ian colonies should “combine” into a sim- was accordingly granted to the five major ilar form of federation in order to secure a
25 Foundations greater “weight or influence in the family of extensively about the United States, John nations”. He further desired that the con- Bourinot about Canada, and Adams and stituent states not merely retain a “munic- Cunningham about Switzerland21. Another ipal independence” in “little matters”, but important scholar, Edward Freeman, who should actively secure “the entire control of undertook a close study of the federations all matters affecting their interests”20. of the ancient Greek city states, wrote of It was not until the 1880s, however, that “the absolute perfection of the Federal ide- an openness to federation began to con- al” and observed that “the full ideal of Fed- solidate among the colonies. At an inter- eral Government… in its highest and most governmental meeting held in 1890, the elaborate development, is the most finished colonial leaders agreed to the holding of a and the most artificial production of polit- convention of delegates chosen by the co- ical ingenuity”22. Distinguished historians lonial parliaments to negotiate the terms of such as Henry Maine and Otto von Gierke a federal constitution for the colonies. This also drew attention to a kind of “federal- convention met in 1891 and, after long ne- ism” even within the Holy Roman Empire gotiations, formulated a draft constitution and the current German Empire23. Moreo- that was submitted to the colonial Parlia- ver, celebrated political writers like Baron ments for their consideration. However, in de Montesquieu and Alexis de Tocqueville the minds of several political leaders, the had long argued that federalism enjoyed time for federation had not yet arrived. A the strengths, and avoided the weaknesses, second convention was eventually held in of small, independent republics and large, 1897-1898 at which another draft consti- consolidated empires24. And luminaries as tution was formulated, again submitted to diverse as Thomas Jefferson, David Hume the Parliaments and eventually approved and Pierre-Joseph Proudhon had cham- by the voters in referendums held in each pioned very similar, federalistic ideals25. colony. The British Parliament enacted the Images and symbols such as these pro- Australian federal constitution into law on foundly shaped Australian conceptions of this basis in 1900. federalism26. For the Australians, the Unit- Federation was seen by the coloni- ed States Constitution was undoubtedly the al leaders as a means to several ends. One paradigm of federal constitutions27. When was a more effective defence. Another was prominent writers like Bryce, Freeman and a guarantee of inter-colonial free trade. A A.V. Dicey wrote about federalism and the third was to consolidate an emergent sense federal state, it was the American system of Australian national identity. But un- that they pre-eminently had in mind. And derlying all of these rationales was a belief as Bryce taught the Australians, the Ameri- that a federal form of government would can Constitution embodied neither a loose best enable Australians to participate in compactual league nor a unitary national their own local self-government. The Aus- government, but rather ‘a Commonwealth tralians were influenced in this respect by of commonwealths, a Republic of republics, leading constitutional writers who under- a State which, while one, is nevertheless took extensive studies of the existing feder- composed of other States even more essen- ations of the day: James Bryce had written tial to its existence than it is to theirs’28.
26 Aroney
Central to the lessons that the American however, was that it showed the Australians Constitution presented to the Australians how a specifically federal system might be were the formative processes by which the adapted to a monarchical and parliamen- separate American states had integrated tary system operating within the British themselves into a “federal republic”, the Empire. institutions that enabled the peoples of the The Australians thus made use of a wide states and the people of the nation to be variety of fundamental ideas, some of them represented in the federal legislature, the derived from a rather eclectic range of manner in which federal legislative power sources. In order to understand and make was distributed, and the means by which use of these models, the Australians had to the entire arrangement could be amended. rely on a wide range of works that explained The Swiss Constitution reinforced these their intricacies. Each interpreter of feder- lessons, for it showed that these aspects of alism injected into his description of each the American system could be reproduced system his own particular orientations, elsewhere. Switzerland also contributed conceptions and theories. As far as ideas ideas of its own. In particular, it provided about federalism were specifically con- an example of a non-presidential model of cerned, a close analysis of the debates in executive government suitable to a federa- the federal conventions of the 1890s as well tion, and it demonstrated how federalism as the writings of the most influential par- could be integrated with direct, popular ticipants in the debate about federation30 participation by way of referendum. As it suggests that the most significant influenc- happened, the Australians would repro- es upon the Australians were the writings duce many of the most conspicuous fea- of James Madison, James Bryce, Edward tures of the American and Swiss Constitu- Freeman, A.V. Dicey and John Burgess. tions, including the general structure of the Madison in particular, in his celebrated federal legislature (the Senate and House Federalist No. 39, presented the Australians of Representatives) and the pattern of dis- with an analysis of the United States consti- tributing only specific powers to the federal tution which emphasised five interlocking legislature, as well as the peculiarly Swiss characteristics31. First, he emphasised, the idea of the dual referendum as the stipulat- proposed constitution was founded upon a ed mechanism for ratifying constitutional genuinely “federal” agreement among the amendments. The United States and Swit- peoples and governments of the several zerland were, however, republics29, and constituent states, expressed through rati- the Australians recognised that a federa- fying conventions held in each of the states. tion of the Australian colonies would have Secondly, Madison observed that the rep- to be instituted under the Imperial Crown resentative institutions of the American and the authority of the Parliament at West- federation combined two principles: that minster. The Australians naturally drew on of the representation of the states as “co- their own political experience when it came equal societies” in the Senate, and that to the exercise of representative and re- of the representation of the people of the sponsible government within the context of United States as a whole in the House of the British Empire. Canada’s importance, Representatives. Relatedly, the President
27 Foundations would be chosen through an electoral col- cations. The Swiss model of a referendum lege in which voting power would be appor- was thus adopted both for the ratification of tioned partly among the states again as co- the constitution and its future amendment: equal societies and partly in proportion to ratification required unanimous referen- the national population. Thirdly, Madison dums in each state; and amendment would pointed out that the powers of the federal require a majority of voters in the nation as government were limited to specific topics, a whole as well as a majority of voters in a while the powers of the states were original majority states32. Likewise, the Canadian and plenary, subject only to validly enacted model of adapting federal institutions to a federal laws. Fourthly, the reach of feder- British Imperial context and the Westmin- al laws was unique among federal systems ster tradition of parliamentary responsible at the time, for they applied directly to the government was adopted33, but again not citizens, and did not rely upon the states to without adaptation, for the Canadian model apply or enforce them. Lastly, the amend- was seen as too centralist and not federalist ment clause was likewise a “compound” of enough. In particular, the Australians in- “federal” and “national” elements in so far sisted that the constituent colonies should as it required, neither a national majori- be regarded as self-constituting “states”, ty, nor a unanimous vote of the states, but and not merely as subordinate “provinc- a special majority of the states, expressed es”34, and that the Senate, representing the through the state legislatures or state con- people of the states35, should have near- ventions. equal powers with the House of Represent- Madison’s account of the logic of the atives, including the power to refuse supply American system had a profound influ- to the government36. This was a power that ence upon the Australians. They saw in it potentially involved the capacity to bring a principled conceptual model that could down a government: a fact that the framers readily be adapted to Australian circum- recognised37, and which the Senate actually stances. Although there was certainly dis- exercised in 1975 in controversial circum- agreement over the details, there was a stances38. strong consensus among the framers of the In constructing a federal system of this Australian constitution that the federation kind, the Australians deliberately wished would have to be founded upon the unan- to preserve the capacity of the people of imous consent of the people of each of the the states to participate in their own local constituent states, and that this principle self-government – first, in their locali- of ratification by the people of each state ties39; secondly, in their respective states; should be carried through into the insti- and thirdly, through the institutions of the tutions of the federation, including the federation as a whole. For, as John Cock- bicameral structure of the Parliament, the burn saw it: “local government, self gov- configuration of legislative, executive and ernment, and government by the people judicial power, and the process for amend- are analogous terms… [C]entralization is ment of the constitution as a whole. Here, opposed to all three, and there can be no the American model was profoundly influ- government by the people if the Govern- ential, but not without important qualifi- ment is far distant from the people”40. On
28 Aroney this view, federation would strengthen this money, determine expenditure and make capacity at each level of government and financial grants to the states45. Fourth- enable Australians secure increasing polit- ly, the federation was vested with powers ical and constitutional independence from necessary to enable it to function, in due the United Kingdom. This was recognised course, as an independent government in by key leaders of the time. One of them, the world; these powers included defence Andrew Inglis Clark, thus observed that he and external affairs, and went so far as to and others include the exercise all of the powers of the British Imperial Parliament in relation knew what they were doing. They went to work 46 with their eyes open; and he claimed part of the to Australia . When the federation legis- responsibility, or glory, or whatever they might lated in these fields, its laws would prevail call it. They told the Convention what they were over any inconsistent state laws47, but apart doing, and it agreed with them. He had quoted from this, the underlying principle was that Sir Samuel Griffith’s words at the Convention, the people of the states would continue to and surely they did not shirk the question. They 48 did not hold anything back. They faced the posi- regulate and govern themselves as before . tion that they were going in for absolute legisla- Pursuant to this fundamental principle tive independence for Australia as far as it could of local self-government, it was expected possibly exist consistent with the power of the that the states would continue to be polit- Imperial Parliament to legislate for the whole ical communities in which their respec- Empire when it chose41. tive peoples would participate in their own There were, as a consequence of this self-government and that the limited pow- general outlook, four important categories ers granted to the Commonwealth would of legislative powers that were dealt with be recognised. For the first twenty years under the new constitution. The first cate- of the federation this principle was large- gory concerned the original, plenary pow- ly respected49. The High Court, under the ers of the constituent states. The general leadership of three leading framers, Sam- principle was that these powers would con- uel Griffith, Edmund Barton and Richard tinue42, subject only to a small number of O’Connor, interpreted the scope of feder- topics that were to be exclusively vested in al legislative powers in a way that ensured the federal parliament, such as the govern- that the general competences intended to ance of federal territories and federal gov- be reserved to the states were preserved. ernment departments43. The second cat- However, in 1920 a watershed occurred. egory concerned those powers that would A new group of judges, led by Isaac Isaacs be transferred to the federal government and Henry Bournes Higgins (both of whom and parliament. They included the pow- had been among the framers but had been er regulate such things as interstate trade, consistently outvoted during the federal banking, insurance, trading and financial conventions), reversed the Griffith-Bar- corporations and intellectual property44. ton-O’Connor approach by giving interpre- A third category concerned matters that tive priority to federal powers in a way that would enable the new federation to oper- deliberately excluded any consideration of ate as an independent government; these the original and general powers reserved to included powers to impose taxes, borrow the states50. The consequences of this fun-
29 Foundations damental shift in method has led over the generalised to the interpretation of federal last ninety years to a gradually expanding legislative powers generally, could help to field of federal legislative power, mostly at rebalance the Court’s interpretation of the the expense of the states. Thus, the exter- constitution. However, the prospects that nal affairs power, originally understood to this might occur are not great. In order to concern the regulation of matters that were see a better rebalancing of the federation, inherently external in nature, has been the states themselves need to be more as- extended by the High Court to include the sertive in their relationships with the fed- contents of any international treaty that the eral government. Australian national government happens One radical means to this latter end, the to enter, whatever the topic51. The power author has argued, is for the state govern- with respect to trading and financial cor- ments themselves to initiate a process by porations, originally understood to con- which the state constitutions would be sub- cern only corporations whose predominant mitted to the their respective peoples for purposes were trading or financial, and to ratification and approval by referendum54. encompass only the regulation of the trad- While there are no present prospects of this ing and financial activities of those kinds of happening in the foreseeable future, such corporations, has been extended to the reg- an initiative has the potential to reinvigor- ulation of any corporation which engages in ate the role and constitutional standing of a sufficiently significant degree of trading the states within the federation. This is be- or financial activities, and also to extend cause, at present, only the federal consti- to any activities of such a corporation, in- tution has been popularly ratified, and the cluding its internal relations with its em- democratic foundations of the federation ployees52. The examples can be multiplied. have been one of the underlying reasons Only in certain specific areas has the High why the High Court has given interpretive Court resisted this tendency — and here its priority to the powers of the federation in efforts are to be commended. Recently, it preference to those of the states. While the held that the spending power of the federal interpretive implications of such a change government is in principle limited to topics cannot be predicted with absolute certain- upon which the federal parliament has leg- ty, if the state constitutions were ratified islative power and has legislated53. This has by their respective peoples, it would give led to the conclusion that a range of federal the Court reason to consider the states as spending programs have been unconstitu- locations of constitutional, democratic tional, and that the federal government will self-governance at least as fundamental need to cooperate with the states in order to the federation as the government of the to pursue those financial policies in the fu- federation as a whole. And to do so would be ture. It is not clear where this latter line of recover, at least to some degree, the orig- cases will lead, although it is significant that inal understanding and intention of the in the very most recent decision, the Court framers of the constitution, which was to referred to the regulation of schools as a create what Montesquieu called a ‘società matter that properly falls within the prov- di società’55 and what Bryce said amounted enance of the states—an observation that, if to ‘a Commonwealth of commonwealths,
30 Aroney a Republic of republics, a other States even more es- State which, while one, is sential to its existence than nevertheless composed of it is to theirs’56.
* The support of Australian Research balances of power between Brit- stract issue of sovereignty […] ‘a Council grant FT100100469 is ain and the American colonies compleat supremacy somewhere gratefully acknowledged. are in certain important respects is not necessary in every society’”. 1 Ch.-L. de S. de Montesquieu, De better understood as “negotiated See M. Zuckert, Federalism and the l’esprit des lois, translated as Lo authorities”: J.P. Greene, Negoti- Founding: Toward a Reinterpreta- spirito delle leggi, with an intro- ated Authorities: Essays in Colonial tion of the Constitutional Conven- duction by R. Deranthé, Milano, Political and Constitutional History, tion, in «Review of Politics», vol. Rizzoli, 1989, Pt. II, Bk. IX, ch. I, Charlottesville, University Press 48, 1986, p. 166. p. 283 – quoted by L. Lacchè, ‘Un of Virginia, 1994. 13 See N. Aroney, Politics, Law and italiano a Ginevra, alla ricerca 8 J.-F. Aubert, Traité de Droit Consti- the Constitution in McCawley’s della patria comune’, in P. Rossi tutionnel Suisse, Neuchâtel, Ides et Case, in «Melbourne University (edited by), Per la Patria comune, Calendes, 1967, pp. 30-32. Law Review», vol. 30, n. 3, 2006, Manduria, Piero Lacaita Editore, 9 Stephen Tierney, “We the Peoples”: p. 605. 1997, p. XII. Constituent Power and Constitu- 14 British North America Act 1867; 2 Eg, K. Lenaerts, Constitutionalism tionalism in Plurinational States, Commonwealth of Australia Consti- and the Many Faces of Federalism, in M. Loughlin and N. Walker tution Act 1900. in «American Journal of Com- (edited by), The Paradox of Consti- 15 The next section in this article parative Law», vol. 38, 1990, p. tutionalism, Oxford, Oxford Uni- draws extensively from N. Aron- 205. versity Press, 2008, p. 229. ey, The Constitution of a Federal 3 R. Schütze, From Dual to Coop- 10 C. Colino, Constitutional Change Commonwealth: The Making and erative Federalism: The Changing without Constitutional Reform: Meaning of the Australian Constitu- Structure of European Law, Oxford, Spanish Federalism and the Revi- tion, Cambridge, Cambridge Uni- Oxford University Press, 2009. sion of Catalonia’s Statute of Auton- versity Press, 2009, chs. 3 and 4. 4 S. Tierney, Federalism in a Unitary omy, in «Publius», vol. 39, n. 2, Those studying the origins of the State: A Paradox Too Far?, in «Re- 2009, p. 262. Australian constitution should gional & Federal Studies», vol. 11 M. Keating and A. Wilson, Feder- also consult J.A. La Nauze, The 19, n. 2, 2009, p. 237. alism and Decentralisation in Italy, Making of the Australian Constitu- 5 J. Weiler, The Transformation of Paper presented at the PSA Con- tion, Melbourne, Melbourne Uni- Europe, in «Yale Law Journal», ference, Edinburgh, 2010. versity Press, 1974, and H. Irving, vol. 100, 1991, p. 2403. 12 Thus, in relation to the found- To Constitute a Nation: A Cultural 6 B. de Witte, Rules of Change in In- ing of the American federation, History of Australia’s Constitution, ternational Law: How Special Is the Michael Zuckert has pointed out Cambridge, Cambridge Universi- European Community?, in «Neth- that among the framers “[t]here ty Press, 1997. erlands Yearbook of International were some – notably Luther Mar- 16 A.J. Brown, One Continent, Two Law», vol. 25, 1994, p. 299. tin on the federal side, Hamilton Federalisms: Rediscovering the 7 In fact, throughout the revolu- and perhaps Gouverneur Morris Original Meanings of Australian tionary era claims to indepen- on the national side – who clung Federal Ideas, in «Australian dence were made by the American to the view that sovereignty must Journal of Political Science», vol. states both jointly and severally. reside somewhere, in one gov- 39, n. 3, 2004, p. 485. See, eg, G.S. Wood, The Creation ernment or the other. These few 17 See Australian Constitutions Act of the American Republic, 1776-1787, delegates insisted that one or (No. 2) 1850 (U.K.), and the dis- Chapel Hill, University of North the other must be sovereign, but cussion in W.G. McMinn, A Con- Carolina Press, 1969, p. 355; J.N. the main thrust of the delegates’ stitutional History of Australia, Rakove (edited by), Interpreting the thought was away from such a Melbourne, Oxford University Constitution: The Debate over Origi- drastic either/or. Madison, both Press, 1979, chs. 2-3; A.C.V. Mel- nal Intent, Boston, Northeastern at the Convention and later, felt bourne, Early Constitutional De- University Press, 1990, p. 2. The that too much was made of the ab- velopment in Australia, Brisbane,
31 Foundations
University of Queensland Press, (1777), in Essays, Moral, Political, (1788), in C. Rossiter (edited by), 1963, Pt. V, ch. VI and 443-445; and Literary, Indianapolis, Lib- The Federalist Papers, New York, R.D. Lumb, The Constitutions of the erty Fund, 1987; P.-J. Proudhon, New American Library of World Australian States (5th ed.), Bris- The Principle of Federation (1863), Literature, 1961. bane, University of Queensland Toronto, University of Toronto 32 Australian Constitution, section Press, 1992, chs. 1-2, and ch. 4. Press, 1979. 128. 18 Colonial Laws Validity Act 1865 26 For more detail, see N. Aroney, 33 The conventions of parliamenta- (UK). A Commonwealth of Common- ry responsible government were 19 Official Record of the Proceedings wealths: Late Nineteenth-Century obliquely recognised in the re- and Debates of the Australasian Conceptions of Federalism and Their quirement that a Minister of the Federation Conference, Melbourne, Impact on Australian Federation, Crown could not hold office for a Government Printer, 1890, p. 10. 1890-1901, in «Journal of Legal period of more than six months 20 T. Just, Leading Facts connect- History», vol. 23, n. 3, 2002, pp. without holding a seat in the par- ed with Federation, Hobart, The 253; N. Aroney, ‘Althusius at the liament: Australian Constitution, Mercury Office, 1891, pp. 35-37, Antipodes: The Politica and Austra- section 64. reproducing J. Dunmore Lang, lian Federalism, in F. Carney, H. 34 Commonwealth of Australia Con- The Coming Event, or Freedom and Schilling and D. Wyduckel (edited stitution Act 1900, section 6. Independence for the Seven United by), Jurisprudenz, Politische Theorie 35 Australian Constitution, section Provinces of Australia, Sydney, J.L. Und Politische Theologie, Berlin, 7. Sherriff, 1870. Duncker & Humblot, 2004, p. 36 Australian Constitution, section 21 A.V. Dicey, Introduction to the 529; N. Aroney, The Influence of 53. Study of the Law of the Constitu- German and Swiss State-Theory 37 Official Report of the National tion (5th ed.), London, Macmil- on Late Nineteenth Century British, Australasian Convention Debates, lan, 1897; J. Bryce, The American American and Australian Concep- Sydney, 2 March to 9 April, 1891, Commonwealth (3rd ed.), London, tions of Federalism, in «Inter- Sydney, Acting Government Macmillan, 1893; J. Bourinot, A national and Comparative Law Printer, 1891; reprinted Sydney, Manual of the Constitutional Histo- Quarterly», vol. 59, 2010, p. 669. Legal Books, 1986, pp. 442-444; ry of Canada, Montreal, Dawson, 27 Sir Owen Dixon, Chief Justice of H.B. Higgins, Essays and Address- 1888; F.O. Adams and C.D. Cun- the High Court of Australia, 1952- es on the Australian Commonwealth ningham, The Swiss Confederation, 1964, observed that the American Bill, Melbourne, Atlas Press, London, Macmillan, 1889. Constitution was for the Austra- 1900, pp. 16-17; J. Bryce, Stud- 22 E.A. Freeman, History of Feder- lians an “incomparable model” ies in History and Jurisprudence, 2 al Government in Greece and Italy which both “fascinated” them and vols., Oxford, Clarendon Press, (2nd ed.), London, Macmillan, “damped the smoldering fires of 1901, vol. I, pp. 515-518. 1893, pp. 1-3, and pp. 7-8. Free- their originality”: O. Dixon, The 38 L.J.M. Cooray, Conventions, the man continued: “It is hardly pos- Law and the Constitution, in Jesting Australian Constitution and the Fu- sible that federal government can Pilate, Melbourne, Law Book Co, ture, Sydney, Legal Books, 1979. attain its perfect form except in a 1965, p. 44. 39 Albeit that local government was highly refined age, and among a 28 Bryce, The American Common- then, as now, regarded as a crea- people whose political education wealth cit., vol. I, pp. 12-15, and ture of the states. has already stretched over many p. 332. 40 Convention Debates, Adelaide, generations”. 29 See J. Hutson, The Sister Republics: 1897, pp. 338-339. 23 H.S. Maine, Ancient Law: Its Con- Switzerland and the United States 41 J. Reynolds, A.I. Clark’s American nection with the Early History of from 1776 to the Present, Washing- Sympathies and his Influence on Society, and its Relation to Mod- ton, Library of Congress, 1991. Australian Federation, in «Austra- ern Ideas, London, John Murray, 30 I refer here to the published re- lian Law Journal», vol. 32, 1958, 1861, p. 109; Freeman, Federal cords of the Australasian Fed- p. 66. Government; J. Bryce, The Holy eration Conference and Federal 42 Australian Constitution, sections Roman Empire (4th ed.), London, Conventions held in 1890, 1891 106 and 107. Macmillan, 1895. and 1897-1898, and include the 43 Australian Constitution, section 24 Montesquieu, Spirit of Laws cit.; Hansard records of the Imperial 52. A. de Tocqueville, Democracy in Parliament and the several colo- 44 Australian Constitution, section America (1835-1843), London, nial legislatures, as well as the nu- 51(i), (xiii), (xiv), (xx), (xviii). Oxford University Press, 1959. merous Australian books, articles 45 Australian Constitution, sections 25 Letter from Jefferson to Cabell and speeches published outside 51(ii) and 96. (2 February 1816); D. Hume, The these formal venues. 46 Australian Constitution, section Idea of a Perfect Commonwealth 31 J. Madison, Federalist No. 39 51 (vi), (xxix), (xxxviii).
32 Aroney
47 Australian Constitution, section 50 Amalgamated Society of Engineers v 2012, p. 210. 109. Adelaide Steamship Co Ltd (1920) 55 Montesquieu, Lo spirito delle leggi 48 See Aroney, Constitution of a Fed- 28 CLR 129. cit., p. 283. eral Commonwealth, chs. 9 and 10. 51 Commonwealth v Tasmania (1983) 56 Bryce, American Commonwealth 49 For more detail on these points, 158 CLR 1. cit., vol. I, p. 332. see J. Allan and N. Aroney, An 52 New South Wales v Commonwealth Uncommon Court: How the High (2006) 229 CLR 1. Court of Australia Has Undermined 53 Pape v Commissioner of Taxation Australian Federalism, in «Sydney (2009) 238 CLR 1; Williams v Com- Law Review», vol. 30, 2008, p. monwealth [2012] HCA 2. 245; N. Aroney, Constitutional 54 N. Aroney, Popular Ratification of Choices in the Work Choices Case, or the State Constitutions, in P. Kil- What Exactly Is Wrong with the Re- dea, A. Lynch and G. Williams served Powers Doctrine?, in «Mel- (edited by), Tomorrow’s Federa- bourne University Law Review», tion: Reforming Australian Govern- vol. 32, n. 1, 2008, p. 1. ment, Sydney, Federation Press,
33
Why Australia Does Not Have, and Does Not Need, a National Bill of Rights
james allan
1. Introduction In fact, they copied key aspects of that US model, albeit in the context of the in- Although my main topic in this article will herited British Westminster model — or if be the absence of any sort of national bill of you prefer, in the context of a parliamen- rights in Australia, I think that topic is best tary model where you choose your Prime approached circuitously, or at least from Minister and Cabinet from the elected the side. Put more bluntly, readers in con- legislature unlike in the US. Indeed on key tinental Europe may well need some back- issues the Australian drafters consistently ground and context in order to understand preferred the US model to the Canadian why Australia lacks such an instrument and one, both being in front of them1. why, in my view, the absence of a bill of You can see this immediately when you rights is a very good thing indeed. consider the sort of bicameralism chosen To start, and this will be surprising to in Australia with its potent, elected Upper some, Australia is one the oldest democra- House Senate, something unknown then in cies in the world and its written constitu- Canada and still unknown in Canada, and tion is likewise one of the oldest continuous the United Kingdom, and New Zealand. As democratic written constitutions. More- in the US each Australian State, regardless over, the biggest influence in drafting the of its population, is given the same num- Australian Constitution was the US Consti- ber of Senators2. And again mimicking the tution. Back in the late nineteenth century American model, only a proportion of Sen- the men who devised, argued over, debat- ators contest each election as their terms ed about and eventually crafted Australia’s run longer than those of legislators elected written Constitution were extremely well to the Lower House who contest every elec- acquainted with the American model. tion3. giornale di storia costituzionale / journal of constitutional history 24 / II 2012 35 Foundations
The American influence on the form of tory purposes, though, I need only clarify Australian bicameralism is plain for all to what I said last paragraph. see. The Australian Constitution is remarka- The same can be said for federalism. bly democratic7. It took those aspects of the The Canadian model was rejected in fa- US Constitution that increased the input of vour of the American one. So the Austral- representatives accountable to the voters ian drafters opted for a list of enumerated (like an elected rather than an appointed powers for the central government alone or hereditary Upper House), blended them (the residue going to the states), rather into an inherited Westminster system with than the Canadian style option of enumer- parliamentary sovereignty at its core, and ating the powers of both the centre and the then, well aware of the US Constitution and 8 provinces4. after much debate , rejected the most obvi- Again, Australia left the choosing of the ously aristocratic or counter-majoritarian or anti-democratic aspect of the US Con- top State court judges to the States, as in the 9 US, it did not give that power to the centre, stitution, namely its Bill of Rights . This as in Canada. lack of a bill of rights is the most obvious Australia even copied the US in opting to way in which the Australian Constitution differs from the US Constitution. create a national capital city from scratch5. Moreover, the omission was in no sense If space allowed I think one could make an oversight. The decision not to include a a powerful case that Australia’s written bill of rights was made after careful consid- constitution is the closest copy of the US eration, discussion and debate and on the one in existence, the Philippines possibly assumption that the panoply of social poli- excepted, and it is certainly the most suc- cy, line-drawing decisions affected by a bill cessful one that owes much to the American of rights – almost all of them being ones predecessor. Indeed I would go so far as to over which smart, well-informed, even nice generalise in this way: Australia took the US people can and do disagree10 — was better Constitution as a model, copied chunks of left to elected, accountable-to-the-voters it, and then made it better while fitting the legislators (with bicameralism and federal- copied bits into a Westminster parliamen- ism safeguards) rather than to a very small tary framework. number of unelected top judges. Indeed, Of course there are important features the consensus was that such line-drawing of Australia’s written Constitution that do decisions were better left to the elected leg- not resemble their American counterparts. islators even where the issues underlying 6 The Swiss inspired amending provision these decisions had been translated into is perhaps the second most important of the language of rights. those non-US resembling features, and Let me round off these prefatory re- as will be seen below it is a provision that marks by noting that the highly democratic bears on our topic of the lack of a nation- credentials of Australia’s Constitution were al bill of rights insofar as no constitutional arguably even further buttressed when the bill of rights can come into existence with- Commonwealth Parliament legislated to out asking the voters. For these introduc- move to compulsory voting in 1924 and, for
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Lower House of the Commonwealth Par- John Howard’s right-of-centre Coalition liament elections, to preferential voting government lost, the Labor Party did not or ATV six years before that in 1918. This have as part of its manifesto any pledge to combination of voting systems is unique in bring in a statutory bill of rights. That said, the world. it was certainly true that the Labor Par- ty looked more likely to try to do this than the opposition Coalition Parties, though even Labor was known to have a significant 2. Why Australia Does Not Have a National body of sceptics and opponents amongst its Bill of Rights11 top ranks as far as bills of rights were con- cerned. Various attempts have been made to try to Then, midway through 2009 and rath- bring in a bill of right nationally in Austral- er out of the blue, the Labor government’s ia since that initial decision to reject one Attorney General Robert McClelland, an at federation in 1901. In 1944 and again avowed proponent of a statutory bill of in 1988 Australians were asked in section rights, announced the establishment of 128 constitutional amendment referenda a National Human Rights Consultation whether they wanted constitutionalised Committee (hereinafter ‘the NHRCC’). bills of rights. Both times the answer was an The chair of this committee was to be the emphatic ‘no’12. Indeed, in the more recent Jesuit priest and legal academic Father of these held only 24 years ago there was not Frank Brennan, who was trumpeted by the a single Australian State in which the ma- Attorney General as a ‘fence-sitter’ when jority of voters was in favour, with no State it came to the question of a bill of rights. recording more than 37 percent in favour of In truth, though, however much Brennan even the most popular of the four proposed might have been described (and described new rights for entrenchment. himself) as a fence-sitter as regards a bill of Against that backdrop and after those rights, he had in fact been on the record, in results, many Australian bill of rights pro- print, more than once before his appoint- ponents had something of a Damascene ment, as favouring a statutory bill of rights. conversion. Entrenched, constitutional- On top of that, there was not a single ised bills of rights were no longer for them. known bill of rights sceptic or opponent Instead, what was needed was a nice mod- appointed to the NHRCC. est little statutory bill of rights, or so they Without going as far as saying that the tended to put it. The attraction of this al- whole NHRCC process was a foregone con- ternative, of course, at least to those of a clusion as soon as it was set up, one could slightly cynical disposition, is that any stat- certainly say that the NHRCC had little utory option could bypass the need to put seeming legitimacy for those who opposed the proposal to the Australian people in a the enactment of a statutory bill of rights referendum. The legislature could do this (or constitutionalised one, for that matter). without asking, as it were. Or perhaps one might just observe that no Entering into the 2007 federal elec- disinterested outside observer, agnostic tion, the one that then Prime Minister as to the substantive merits at play here,
37 Foundations would consider this to be a good process for ty power in the hands of the High Court, a sounding out the views of Australians. That need for statements of compatibility before disinterested observer would label this a Third Reading, and mention of the ‘dia- terrible process for accurately attempting logue’ model. to assess what actual Australians thought In the next section of this paper I will about a statutory bill of rights. Worse, it outline briefly why this NHRCC call for smacked (whether fairly or not) of being a statutory bill of rights along these lines something of a sham, where the conclusion would have enervated parliamentary de- is a foregone one. Certainly it appeared to mocracy (in the procedural sense noted fall noticeably short of some of the more above) in Australia. For the purpose of this extravagant and triumphal claims of its de- section’s account of why no national bill fenders along the lines that this was a per- of rights exists in Australia, though, what fectly acceptable form of democratic con- followed after the NHRCC report was re- sultation. leased was a political battle in the newspa- Leaving aside these deficiencies relat- pers, within the Labor Party, and between ed to process, the NHRCC’s main recom- the political parties. Surprising for many, mendations were unsurprising. It came including some opposed to these instru- out in favour of enacting a statutory bill of ments, the pro bill of rights lobby lost the rights. (Recommendation 18). It opted to ensuing political battle. give a power to the judges of the High Court First off, some senior figures in the La- to make declarations of incompatibility. bor Party spoke out against any sort of bill (Recommendation 29). The NHRCC also of rights, and they spoke out strongly and wanted its recommended statutory bill of vigorously. Former New South Wales Labor rights to include a reading down provision, Premier Bob Carr (who has subsequently an interpretive provision analogous to sec- become Australia’s Foreign Minister) was tion 3 of the UK’s Human Rights Act and probably the most prominent and vocifer- to section 6 of New Zealand’s Bill of Rights ous of the Labor Party opponents13, but he Act, although in this Recommendation 28 was far from alone in being a left-wing crit- the NHRCC did not actually provide any ic of the proposal. And the federal Cabinet draft version of an interpretive provision clearly was divided on the issue. In addi- that would satisfy its own requirements. tion, some senior judges, including former Two more of the main recommenda- High Court Justice Ian Callinan and the tions of the NHRCC are worth mention- current Chief Justice of Queensland, went ing. The Committee urged that statements public with their opposition to any sort of of compatibility be required for all Bills. bill of rights. (Recommendation 26). The NHRCC also The fact the government sat on the re- urged that any statutory bill of rights be port and did not act immediately also al- based on the ‘dialogue’ model. (Recom- lowed opponents to organise and write mendation 19). Together with the earlier books against the mooted bill of rights14, NHRCC recommendations that gives us a the anti case slowly gaining support from statutory bill of rights with a reading down the churches (who came to the conclu- provision, a declaration of incompatibili- sion that their interests would likely not
38 Allan prevail in any contest between freedom of 3. Why Australia Does Not Need a Bill of religion and equality rights, at least where Rights they would be adjudicated on by judges). The one-sided composition of the NHRCC In the preceding section I briefly recounted probably did not much help either. And the why Australia does not have a national bill daily newspaper commentary pieces that of rights. In this section I will argue that the ran giving the anti side may have helped absence is a good thing, that Australia is move public opinion too15. better off without one17. Add to that the fact the Opposition Co- Of course many of those pushing for alition Party early on signalled it was im- some form or other of a bill of rights instru- placably opposed to this and the difficulties ment like to point to the fact that Australia grew. In addition, Labour did not control is one of the very few democracies – de- the Senate (meaning it would probably have pending on how you look at the Basic Laws to fight an election where a bill of rights in Israel and the judiciary’s unwillingness was, or would be made, a major issue) so to make much of what they have in Japan it could not ensure the proposal’s quick and a few other non-common law coun- and easy passage into law. This was mag- tries, perhaps the only one – without a na- nified by the reality that the union wing of tional bill of rights. On its own, of course, the Labor Party tended to dislike this bill of such a ‘we differ from everyone else’ type of right proposal, or at least was much, much argument tells us nothing. The real ques- more sceptical of it than was what might be tion is not whether Australia should emu- described as the lawyers’ wing of the Labor late others but whether a bill of rights is a Party. And, of course, the fact the Coalition good idea in its own right. Would having Party was recovering in the polls also added one deliver better outcomes than Australia to the difficulties for proponents within the achieves without one? government. My answer is an emphatic and resound- In the end, on April 21st, 2010, the At- ing ‘no’. Here is why. To start, notice that torney General called a press conference any sort of bill of rights enumerates a list of and announced that the government would vague, amorphous – but emotively appeal- not be proceeding with any sort of bill of ing – moral entitlements in the language of rights, just as it would not be inserting any rights. It operates at a sufficiently high lev- sort of reading down provision into other el of abstraction or indeterminacy that it is legislation16. For the foreseeable future the able to finesse most disagreement. Ask who campaign to enact a statutory bill of rights is in favour of ‘freedom of expression’ or in Australia, at the national level, looked to ‘freedom of religion’ or a ‘right to life’ and be dead or in forced hibernation. The same virtually everyone puts up his or her hand. was probably true of any such campaigns in And of course this is where bills of rights all the States that also lacked one, meaning are sold, up in the Olympian heights of dis- all of them except Victoria – which is the agreement-disguising moral abstractions only State jurisdiction to have enacted one. and generalities. Nevertheless, that is not where these instruments have real effect. People do not spend hundreds of thousands
39 Foundations of dollars going to court to oppose ‘freedom soning of the dissenting judgments, or that of speech’ in the abstract. they made more frequent reference to J.S. Bills of rights have real, actual effect Mill or Milton or the International Cove- down in the quagmire of social-policy de- nant on Civil and Political Rights. Only the cision-making where there is no consen- size of the franchise differs. sus or agreement across society at all about None of this deters bill of right propo- what these indeterminate entitlements nents from talking repeatedly about how mean. Rather, there are smart, reasonable, such an instrument ‘protects fundamental well-informed, even nice people who sim- human rights’, as though these things were ply disagree about where to draw the line mysteriously or magically self-defining and when it comes to campaign finance rules or self-enforcing. They are not. They simply hate speech provisions or defamation re- transfer the power to define what counts as, gimes or whether Muslim girls can or can- say, a reasonable limit on free speech over not wear veils to school or whether to sanc- to committees of ex-lawyers (who have no tion gay marriage and so much more. One greater access to a pipeline to God on these could sit around in groups, holding hands, moral and political issues than anyone else, singing ‘Kumbaya’, and chanting ‘right to but who are immune from being removed free speech’ or ‘right to freedom of religion’ by the voters for the decisions they reach). for as long as one wanted and it would help Nor are statutory bills of rights of the not at all in drawing these contentious, de- sort recommended by the NHRCC immune batable lines. from this criticism. Of course on one level What a bill of rights does is to take con- it is true that non-entrenched, non-consti- tentious political issues – and I will delib- tutionalised, statutory bills of rights do not erately say this again, issues over which allow judges to invalidate or strike down there is reasonable disagreement between reasonable people – and it turns them into legislation. Instead the transfer of power to pseudo-legal issues which have to be treat- the judiciary is done more indirectly. ed as though there were eternal, timeless The main tool for increasing the pow- right answers. Even where the top judges er of the judiciary under a statutory bill of break 5-4 or 4-3 on these issues, the judg- rights is the reading down provision. No es’ majority view is treated as the view that is provision has more potential to transmog- in accord with fundamental human rights. rify the powers available under statutory The effect, as can easily be observed versions into something approaching those from glancing at the United States, Can- under constitutionalised versions. Indeed ada and now New Zealand and the United (and here is what proponents downplay Kingdom, is to diminish politics and (over in the time when they are pushing for the time) to politicize the judiciary. Meanwhile, enactment of a statutory bill of rights), if the irony of the fact that judges resolve their judges take such reading down provisions disagreements in these cases by voting is to be Spike Lee-like licences ‘to do the right generally missed. The decision-making thing’, then these provisions leave open rule in all top courts is simply that 5 votes the possibility of affording judges scope to beat 4, regardless of the moral depth or rea- do what the disinterested observer would
40 Allan characterise as an out-and-out rewriting or will be, is a question of fact. In the United redrafting of other statutes. Kingdom we have to look to see how the Consider the reading down provision in top judges in the House of Lords (now Su- the UK’s Human Rights Act 1998 which reads preme Court) – judges who a decade or two to start: ago were widely considered to be the most interpretively conservative judges in the So far as it is possible to do so, primary legislation and subordinate legislation must be read and giv- Anglo-American common law world – have en effect in a way which is compatible with Con- used the section 3 reading down provision vention rights18. to alter their former approach to interpre- tation. The danger with these sort of reading And so let us turn to the Ghaidan case, down provisions – these directions to give the leading UK case on the section 3 read- the words of other statues a meaning that ing down provision. What is remarkable in you, the point-of-application interpreter, that case is not what the judges did, but what happen to think is more moral and more they were prepared openly and explicitly to in keeping with your own sense of the de- admit they believed they could now do with mands of fundamental human rights – is the section 3 reading down provision in that just about any statutory language (how- place. When interpreting all other statutes ever clear in wording and intent) might they could “depart from the intention of… possibly be given some other meaning or Parliament”21. They could do so when “the reading. meaning admits of no doubt”22. They could Here is how I framed the danger, the “read in words which change the meaning scope for abuse, of these provisions in an of the enacted legislation”23. They could earlier article: assert that “[t]he word ‘possible’ in s.31(1) Put differently, reading down provisions such as is used in a different and much stronger these throw open the possibility of ‘Alice in Won- sense”24. They could imply that anything derland’ judicial interpretations; they confer an short of outright ‘judicial vandalism’ is now ‘interpretation on steroids’ power on the une- within their purview at the point-of-ap- lected judges. So although there is no power to 25 invalidate or strike down legislation, the judges plication . They could even use this new can potentially accomplish just as much by re- interpretive power to overrule one of their writing it, by saying that seen through the prism own House of Lords authorities – a case on (that is, their own prism) of human rights, ‘near the meaning of exactly the same statutory black’ means ‘near white’ or ‘interim order be- comes a final order’ means ‘interim order does provision, an authority under four years not become a final order’19. They can make bill of old, and one that had held the meaning of rights sceptics half long for the honesty of judg- that same statute to be clear26. es (under constitutionalised bills of rights) who I could go on. I could note again that strike down legislation rather than gut it of the this Ghaidan approach to using the reading meaning everyone knows it was intended to have (rule of law values notwithstanding)20. down provision is no outlier and continues to be affirmed and re-affirmed in the UK Whether that characterization is alarm- and that the top judges there now see them- ist or not, indeed how different the judi- selves operating under “ a new legal or- cial approach to interpreting other statutes der”27 – one in which their views on a host
41 Foundations of political and moral line-drawing exer- 4. What Australia Does Have cises are significantly more influential than before. Or I could explore the Rule of Law We have now seen that Australia has a long implications of this new Ghaidan approach established written constitution with very to interpretation – how citizens’ knowledge strong democratic credentials but no nation- of what any statute means becomes wholly al bill of rights, neither an entrenched, con- and inextricably linked to judges’ views of stitutionalized one nor a UK-style statutory the scope, range, content and reasonable one. To finish this article I will briefly outline limits on human rights, all or which are two ways in which a focus on rights does play contentious and debatable and give rise to a role in Australia. The first is parochial, and reasonable disagreement amongst smart, applies only in one of the six states of Aus- well-informed and even nice people. Put tralia, namely in the State of Victoria. This bluntly, this new Ghaidan approach to in- is that State’s Charter of Human Rights and terpretation, whatever other sins it might Responsibilities Act 2006, or statutory bill of have, most assuredly magnifies uncertain- rights. The second is nationwide, though of ty from the citizen’s vantage and hence a fairly bracketed or contained scope of ap- lessens the ability of all non-judges to know plication. This is the series of constitutional what the law demands of them and to be cases dating from the early 1990s decided able to shape their conduct and expecta- by the High Court of Australia which discov- tions accordingly. ered or created (depending on one’s theory Or I could even note the other ways stat- of what qualifies as a defensible approach utory bills of rights empower judges, most to constitutional interpretation) an implied obviously by means of the Declarations of freedom of political communication. Incompatibility and Statements of Incom- The State of Victoria’s Charter is an amal- patibility powers28. gam of the UK’s Human Rights Act 1998 and However, for our present purposes I New Zealand’s Bill of Rights Act 1990. It has need only here note that the NHRCC rec- a reading down provision (section 32) that ommended type of statutory bill of rights borrowed slightly more from the UK Act’s does have the effect of clearly enhancing section 3 than from the NZ Act’s section 6. the scope for judicial decision-making at It has a Declaration of Inconsistent Inter- the expense of decision-making that would pretation provision (section 36) that is a re- otherwise be made by the elected repre- worked version of the UK’s Act’s section 4. sentatives of the people. It would, to some Unlike the UK Act, but copying the NZ Act, extent, have diminished democracy. it has an abridging or ‘reasonable limits’ And having been understood in those provision (section 7)29. And as with both terms, and in the context of a country like of the predecessor statutes it was mimick- Australia with superb democratic creden- ing, the Victorian Charter has a Statements tials, the push for a national statutory bill of Compatibility provision (section 28) re- of rights not only did fail, it was also a good quiring at Second Reading that the relevant thing that it failed in my opinion. Minister30 make a statement to the legisla- Australia does not need a bill of rights. ture that a Bill is, or is not, compatible with the enumerated rights31.
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To date there is only one High Court of date part of the statute in that case. Howev- Australia decision interpreting the Victo- er, also notice that the justices were and are rian Charter. This is the 2011 case of Mom- still clear that this implied freedom does cilovic v The Queen32. This decision split the not amount to a personal free speech type seven High Court Justices in various shift- right vesting in the individual citizen39. ing permutations across the range of Char- Since then this implied rights jurispru- ter issues raised33, but the main ruling for dence has not expanded very widely, and our purposes was that the leading UK case indeed has only very rarely led to statutes of Ghaidan34 was emphatically rejected as being struck down or invalidated40. It has, regards the meaning of Victoria’s reading however, been used as the basis for what down provision. might be thought of as a limited implied At the time of writing no other State right to vote jurisprudence41. seems likely to try to enact a statutory bill of Nevertheless, the effects of this implied rights in the near term. rights case law on parliamentary sovereign- As for Australia’s so-called ‘implied ty are considerably less than those of a UK- rights’ jurisprudence35, there is no need style statutory bill of rights, and less so again to canvas this in detail. Suffice it to say that than those of a Canadian or US-style en- beginning in 1992, most notably in what is trenched, constitutionalized bill of rights. known as the ACTV case36, the High Court of Australia arrived at the conclusion that the Australian Constitution — one that explicit- ly and deliberately left out any US-style bill 5. Concluding Remarks of rights or First Amendment free speech entitlements and protections opting, after There is little prospect in the near term of much debate and discussion amongst the Australia entrenching a constitutionalized Founders, to leave these social policy bal- bill of rights or even of enacting a statutory ancing exercises to the elected Parliament UK or NZ-style bill of rights nationally. In — nevertheless implicitly created an im- this article I have set out not only how that plied freedom of political communication. has come about, but also why I believe that The first step in that reasoning, the only one absence is a good thing. that drew on the actual text of the Constitu- Whether or not the reader agrees with tion itself, notes that the Australian Con- that normative position of mine, what is stitution provides that elected Members of not disputable is that Australia has a writ- Parliament are to be ‘directly chosen by the 37 ten Constitution that copied much from its people’ . After a series of further infer- US predecessor, though not the more coun- ences the majority Justices concluded that ter-majoritarian or anti-democratic fea- there was an implied freedom of political 38 tures of that predecessor. communication . Indeed Australia’s Constitution is a re- The practical effect of discovering this markably democratic one, in the letting- implied freedom of political communica- the-numbers-count or ‘right to participate’ tion was that the High Court of Australia sense. justices could then strike down or invali-
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1 See N. Aroney, The Constitution 11 Parts of this section I have taken “Whenever an enactment can be of a Federal Commonwealth: The from my article: J. Allan, You given a meaning that is consistent Making and Meaning of the Aus- Don’t Always Get What You Pay For: with the rights and freedoms tralian Constitution, Cambridge, No Bill of Rights for Australia, in contained in this Bill of Rights, Cambridge Universty Press, «New Zealand Universities Law that meaning shall be preferred to 2009, ch. 3, inter alia p. 70. See Review», vol. 24, 2010, p. 179. any other meanings”, (section too C. Saunders, The Constitution 12 See Parliamentary Library De- 6, italics mine). And the reading of Australia: A Conceptual Analysis, partment of Parliamentary Ser- down provision in the Australian Oxford, Hart Publishing, 2011, p. vices, Parliamentary Handbook State of Victoria’s Charter of Rights 16. of the Commonwealth of Aus- reads: “So far as it is possible 2 It is currently 12 for each of the six tralia, 42nd Parliament, 2008, to do so consistently with their States. p. 396 and pp. 407-408, at purpose, all statutory provisions 3 There are 12 Australian Senators
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was modelled on section 1 of the batable what the answer is, every- 38 See, for instance, the five step Canadian Charter of Rights and thing depending on how you read reasoning process of Mason CJ in Freedoms. Justice Heydon’s judgment. ACTV at para. 138. 30 In New Zealand it is the Attor- 34 Ghaidan v Godin-Mendoza [2004] 39 See the University of Queensland ney-General. 2 AC 557 (HC). Law Journal special issue dedicat- 31 For a full analysis of the Victorian 35 I have discussed the cases under- ed to the 20th anniversary of this Charter see: J. Allan, The Victo- lying this jurisprudence a num- jurisprudence in the volume 30, rian Charter of Human Rights and ber of times including in Oh That 2011 issue for considerable detail Responsibilities: Exegesis and Crit- I Were Made Judge in the Land, in and analysis of these cases. icism’, in «Melbourne University «Federal Law Review», vol. 30, 40 Ibid. Law Review», vol. 30, 2006, p. 2002, p. 561; J. Allan, Paying for 41 See Roach v Electoral Commission- 906. the Comfort of Dogma, in «Sydney er (2007) 233 CLR 162 and Rowe v 32 [2011] HCA 34. Law Review», vol. 25, 2003, p. 63; Electoral Commissioner (2010) 273 33 For instance, the Declaration of and J. Allan, Implied Rights and ALR 1. Inconsistent Interpretation pow- Federalism: Inventing Intentions er was held to be valid at the State While Ignoring Them, in «Univer- level (4-3) but not nationally (7- sity of Western Australia Law Re- 0), while the question of whether view», vol. 34, 2009, p. 228. the s.7 abridging provision affects 36 Australian Capital Television Pty the s.32 reading down provision Ltd v Commonwealth (1992) 177 split the Justices in a way that CLR 106. makes it highly contestable or de- 37 See sections 7 and 24.
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Directions
The External Affairs Power in Australia and in Germany: Different Solutions, Similar Outcome?
jürgen bröhmer
1. Introduction liament’s legislative portfolio in Section 51 (xxix). Indirectly it is the prerogative power Australia and Germany are both consti- of the executive in Section 61, which gov- tutionally organized federal states. That is erns the horizontal aspect of the external a significant communality but should not affairs power and attributes it to the exec- disguise the fact that the models of feder- utive branch of government. In Germany it alism practiced in the two countries are is mainly Articles 32 and 59 of the Basic Law quite distinct. The Australian model, for that deal with the external affairs power. example, is predicated largely around the jurisdictional allocation of substance mat- ter powers to the centre and, by default, to the states and allocates far more substantive 2. Sovereignty matters to the states than is the case in Ger- many. The German federalist model, while The Commonwealth Constitution is a Brit- also following an enumerative approach as ish statute passed by the British Parliament far as substance matters are concerned is on 5 July 19001 after having successfully much stronger institutionally because of cleared the hurdle of several referenda in the direct institutional involvement of the the Australian colonies between 1898 and states in the federal law making process. In 1900. The creation of an Australian fed- both countries the external affairs power is eration under a common constitution did, regulated in the constitution. In Australia however, not create a fully independent and that is achieved by two words only, the nam- sovereign state. The building of a sovereign ing of „external affairs“ as one of the pow- nation continued through several steps, ers attributed to the Commonwealth Par- such as the Statute of Westminster 1931 and giornale di storia costituzionale / journal of constitutional history 24 / II 2012 49 Directions the Statute of Westminster Adoption Act tion 1 unequivocally states: 19422 and was only and finally completed No Act of the Parliament of the United Kingdom with the Australia Act 1986 (Cth), which passed after the commencement of this Act shall finally put an end to the still existing doc- extend, or be deemed to extend, to the Common- trine of repugnancy under which British wealth, to a State or to a Territory as part of the law prevailed in the several states. law of the Commonwealth, of the State or of the The new constitutional entity created a Territory. partially autonomous „self-governing Do- There has been some controversy as to 3 minion“ from the previously six colonies . when Australia became fully independ- In essence the six colonies had merged into ent. Geoff Lindell pointed out that the right 4 one and hence the principal relationship to terminate dependencies and the actu- with the United Kingdom had not changed. al exercise of this right are two different In particular the „doctrine of repugnancy“ matters. Hence Australia could have, at its in Section 2 of the Colonial Law Validity Act own will, become fully independent with 1865 continued to apply. According to this the passage of the Statute of Westminster. „doctrine“ – and similar to Article 31 of the Consequently it does not matter much that German Basic Law - any colonial law stand- Australia chose to do so only later10. That ing in conflict with British law was null and is an interesting observation and relevant 5 void . This situation continued until the in other contexts as well. International law 6 passage of the Statute of Westminster . In does not preclude a sovereign state from Section 2 this statute terminated the appli- transferring sovereign powers to another cation of the Colonial Law Validity Act 1865 entity yet remain a sovereign state none- for „the Commonwealth of Australia“ (Sec- theless. The example of the European Un- tion 1). Section 4 limited the prevalence ion is an impressive illustration. of British legislation to such acts that were The development of the legal relation- passed at the behest of or subsequently au- ship between Australia – and other Domin- 7 thorized by the Dominion . However, the ions – to the United Kingdom is also inter- power to repeal or amend the Constitution esting with regard to the European Union remained with the United Kingdom even and its legal relationship with the member 8 then and according to Section 9 the Statute states and vice versa. The British Parlia- of Westminster was applicable only to the ment is obviously able, to permanently ter- federation but not to the several States. The minate sovereign rights both territorially latter were still bound by the Crown Laws and pertaining to substance matter. That Validity Act and hence the prevalence of is a remarkable difference to the powers British law. It remained legally possible for of the German parliament under the Ger- the House of Commons in London to pass man Basic Law, where the German Consti- legislation binding on the Australian states tutional Court, culminating in its decision even against their will, notwithstanding the on the constitutionality of the Lisbon de- fact that it was accepted that this authority cision11, has set out significant thresholds 9 would not be used . and limitations for such transfers of sover- Full legislative independence was eignty to other entities12. achieved with the Australia Act 1986. Sec-
50 Bröhmer
3. The Relationship between International plies not only to treaties but also to cus- Law and Domestic Law in Australia tomary international law. In the “Stolen Generations” case plaintiffs claimed that Australia is an example of a strictly dual- the Aboriginals Ordinance 1918 (NT), ist country, i.e. a country that regards in- which authorized the forced removal of ternational law, i.e. international treaties Aboriginal children from their families and customary international law, as sep- and culture, was unconstitutional because arate legal spheres outside the domestic it amounted to “cultural genocide” with- legal system and with no direct impact on in the means of the genocide convention, the latter. International law can only gain which was in force in Australia since 1951. effectiveness within the domestic legal or- The plaintiffs argued that this prohibition der if Parliament legislates accordingly, in was already part of customary international which case it is precisely not the interna- law well before Genocide Convention be- tional law norm that as such becomes part came effective in 1951. Dawson J was not of domestic law but a norm of domestic law convinced. To the effect of the Genocide that reflects the content of the internation- Convention he stated: al norm. The difference is important be- In any event, the Convention has not at any time cause if the international norm disappears, formed part of Australian domestic law. As was the domestic norm still remains unless it recently pointed out in Minister for Immigration too is rescinded. and Ethnic Affairs v Teoh, it is well established that The dualistic approach was not without the provisions of an international treaty to which Australia is a party do not form part of Australi- alternative when the Commonwealth Con- an law unless those provisions have been validly stitution was drafted. An earlier draft ver- incorporated into our municipal law by statute. sion contained a different clause: Where such provisions have not been incor- porated they cannot operate as a direct source The Constitution established by this Act, and all of individual rights and obligations. However, laws made by the Parliament of the Common- because of a presumption that the legislature wealth in pursuance of the powers conferred by intends to give effect to Australia’s obligations the Constitution, and all treaties made by the under international law, where a statute or sub- Commonwealth, shall, according to their tenor, ordinate legislation is ambiguous it should be be binding on the courts, judges, and people of construed in accordance with those obligations, every State, and of every part of the Common- particularly where they are undertaken in a treaty wealth, anything in the laws of any State to the to which Australia is a party. Such a construction contrary notwithstanding; and the laws and is not, however, required by the presumption treaties of the Commonwealth shall be in force where the obligations arise only under a treaty on board of all British ships whose last port of and the legislation in question was enacted be- clearance or whose port of destination is in the fore the treaty, as is the situation in the present Commonwealth13. case15. This language was later amended and However, the Court also spelled out a all references to treaty law removed on the powerful tool for the “indirect” application grounds that under English law treaties of international law within the domestic le- could not directly impact the municipal gal order. Statutory interpretation requires legal order14. The High Court has affirmed that domestic law be interpreted inter- this dualistic approach consistently. It ap- national law friendly. Whenever statutory
51 Directions provisions leave room for interpretation, and the several States and Territories have and they almost always do, and a lege artis no external power at all. That is true both interpretation yields more than one result for treaty making and for treaty implemen- of which one is in compliance with interna- tation. tional law and the others are not, the courts must chose the one which honours Aus- tralia’s international obligations. Justices Mason and Deane explained why that is so: 4.1. Historical Development Rather, ratification of a convention is a positive statement by the executive government of this As shown above the creation of an Australi- country to the world and to the Australian people an Federation had not led to the immediate that the executive government and its agencies creation of an independent state and thus will act in accordance with the Convention. That positive statement is an adequate foundation for not to the creation of a new entity with (full) 17 a legitimate expectation, absent statutory or ex- international personality . The former ecutive indications to the contrary, that admin- colonies, now the states, never possessed istrative decision-makers will act in conformity 18 16 sovereignty under international law . with the Convention . Only the Crown could act internationally, notwithstanding the fact that even before full independence was achieved consulta- tion procedures had been put in place and 4. The External Affairs Power in the the participation of the colonies in treaties Commonwealth Constitution negotiated by the Crown was not automat- ic19. It was not until after World War I that The allocation of power in a federal system the Dominions generally began to exercise has two aspects, a federal (vertical) aspect greater powers in the area of external af- and a horizontal aspect. The former is con- fairs. Australia was separately represented cerned with the allocation of a certain pow- at the Versailles Peace Conference, signed er between the centre and the constituent the Versailles Peace Treaty and, for exam- entities and the latter is concerned with the ple, became an independent member of the distribution of power between the various League of Nations and the International La- organs of government at a specific level of bour Organization (ILO) in 1919 and hence government. exercised at least partial international per- Horizontally the power to enter into sonality20. At the Imperial Conference in treaties is a Commonwealth executive pow- 1923 it was recognized that the different er under s. 61 of the Constitution (prerog- Governments of the Empire had the right to ative power). The aspect of treaty making is make treaties with foreign powers, subject to be distinguished from treaty implemen- to a duty to consider any potential effect tation. If an international treaty requires on other parts of the Empire, and a duty to domestic legislative action it is for the Par- inform other Empire Governments of their liament to legislate. intentions. The Imperial Conference 1926 Vertically, the external affairs power is concluded with the Balfour Declaration, wholly attributed to the Commonwealth which stated:
52 Bröhmer
They [the Dominions] are autonomous Commu- The lack of international personality nities within the British Empire, equal in status, is irrespective of the substance matter to in no way subordinate one to another in any as- be addressed in a treaty and the domestic pect of their domestic or external affairs, though allocation of legislative powers pertaining united by a common allegiance to the Crown, and freely associated as members of the British Com- to this particular substance matter. Hence monwealth of Nations.. even if the substance matter to be ad- dressed in an international treaty belongs The Statute of Westminster 1931 – and to the purview of state powers the states its implementation by the Statute of West- are still unable to act internationally. That minster Adoption Act 1942 (Section 3) – fi- stands in stark contrast to Article 32.3 of nalized this development by declaring that the German Basic Law, which allows the the Dominions, and thus the Common- states to enter into international treaties wealth of Australia, had full power to make with foreign subjects of international law laws having extra-territorial operation21. in matters which domestically constitute exclusive powers of the Länder23, such as schools and universities. However, there have been efforts to in- 4.2. Treaty Making and the States tegrate the states into the whole process at least to some degree. The Council of Aus- tralian Governments (COAG)24 agreed on The Australian States did not gain any new 14.6.1996 to the establishment of a Trea- powers with Federation and hence they ties Council consisting the Prime Minister have no power to enter into treaties. Sec- of the Commonwealth and all Premiers and tion 2 (2) of the Australia Act 1986 explic- Chief Ministers of the states and territo- itly states: ries. The objective of the Treaty Council is It is hereby further declared and enacted that the to improve information and consultation legislative powers of the Parliament of each State procedures concerning treaties and other include all legislative powers that the Parliament international instruments of sensitivity or of the United Kingdom might have exercised be- importance to the States and Territories. fore the commencement of this Act for the peace, According to the principles of the Treaty order and good government of that State but Council the Commonwealth will inform nothing in this subsection confers on a State any ca- pacity that the State did not have immediately before the States and Territories of international the commencement of this Act to engage in relations instruments covering matters of sensitivity with countries outside Australia. and importance to the States and Territo- ries. Not included in this undertaking are Consequently, whatever agreements treaties concerning matters of national se- states and territories enter into with other curity. The Commonwealth will “seek and countries cannot be treaties under inter- take into account the views” of the States national law as the states do not possess in- and Territories in formulating Australian ternational personality – neither from the negotiating policy before becoming a par- perspective of international law nor from a ty to a treaty or instrument. However, the domestic constitutional perspective22. procedure has not really gained traction
53 Directions and the Treaties Council has only ever met suggested, and it is not the law, that such an ex- once in 1997. One possible reason could be pression of approval operates as law, or that in that its potential role has been largely sub- law it precludes the assenting Parliament, or any subsequent Parliament, from refusing to give its sumed by the Standing Committee on Trea- sanction to any legislative proposals that may ties (SCOT) also established by COAG in subsequently be brought before it. Parliament, 199625. SCOT consists of senior Common- no doubt, as the Chief Justice points out, has a wealth and State and Territory officers who constitutional control over the executive: but it meet twice a year, or more often if required, cannot be disputed that the creation of the ob- ligations undertaken in treaties and the assent to to identify treaties and other international their form and quality are the function of the ex- instruments of sensitivity and importance ecutive alone. Once they are created, while they to the States and Territories. bind the State as against the other contracting parties, Parliament may refuse to perform them and so leave the State in default26.
As a result the Commonwealth Parlia- 4.3. Treaty Making, Treaty Implementation ment has no formal role in the treaty making and the Role of Parliament process27. Negotiation, signing and ratifi- cation of international treaties are matters The fact that external affairs are allocated to for the executive branch. Ratification of the executive is a traditional characteristic international treaties is consequently lim- of Westminster based systems as is the con- ited to its international law meaning as the sequential distinction between treaty mak- step by which the country declares that it ing and treaty implementation. The Privy is now bound by the treaty in question. In Council has quite succinctly summarized Australia the term ratification does not this position in a 1937 decision: have an additional domestic, constitutional meaning of parliamentary assent to a trea- It will be essential to keep in mind the distinction between (1.) the formation, and (2.) the perfor- ty as is the case for example in the United mance, of the obligations constituted by a treaty, States, where the US-Senate must consent using that word as comprising any agreement to any treaty with a two-thirds majority28 or between two or more sovereign States. Within in Germany under Article 59.2 of the Basic the British Empire there is a well-established Law, which requires assent by both houses rule that the making of a treaty is an executive act, while the performance of its obligations, of parliament, Bundestag and Bundesrat. if they entail alteration of the existing domes- The 1996 reforms mentioned above in tic law, requires legislative action. Unlike some the context of the participation of the states other countries, the stipulations of a treaty duly also sought to improve the involvement of ratified do not within the Empire, by virtue of the Parliament in the treaty making process. treaty alone, have the force of law. If the national executive, the government of the day, decide to To that end the “Joint Standing Committee incur the obligations of a treaty which involve on Treaties (JSCOT) was introduced with alteration of law they have to run the risk of ob- the objective to improve the openness and taining the assent of Parliament to the necessary transparency of the treaty making process statute or statutes. To make themselves as secure as possible they will often in such cases before in Australia. All treaty actions proposed final ratification seek to obtain from Parliament by the Government are tabled in Parlia- an expression of approval. But it has never been ment for a period of at least 15 sitting days
54 Bröhmer before action is taken that will bind Aus- whether the Commonwealth Parliament tralia internationally unless the Minister requires a specific substance matter pow- for Foreign Affairs certifies that a treaty is er enumerated in the Constitution (espe- particularly urgent or sensitive because it cially Section 51). In other words, is the involves significant commercial, strategic Commonwealth Parliament empowered to or foreign policy interests. The government legislate under the external affairs power of will provide a text of the treaty and “nation- Section 51 (xxix) even if it otherwise had no al interest analysis” (NIA) spelling out key power to legislate and, if yes, are there any information on the treaty such as effect, other limitations for the Commonwealth legal obligations, implementation or cost. Parliament when legislating under the ex- In recent years JSCOT has increased its ac- ternal affairs power? tivities significantly29. It is not surprising Within the High Court the question was that these reports will not necessarily lead addressed for the first time when the im- to a uniform view of the matter but rather plementation of the Versailles Peace Treaty reflect the various political views held on into Australian law by the Treaty of Peace the matter30. Act (1919) was upheld by one Justice on However, the fact remains that from a the basis of the external affairs power31. In legal perspective the role of Parliament in 1936 the High Court upheld the Common- treaty making is very limited. That is not to wealth Air Navigation Act (1920) on the say that the executive branch is hindered in bases of the external affairs power because involving the legislative branch in this pro- it gave effect to the Paris 1919 Internation- cess. The executive is, however, under no al Convention for the Regulation of Aerial obligation to do so. Navigation32. In particular it did not matter that the underlying facts of the case were entirely situated in New South Wales and in that sense had no international bearing 4.4. Parliament and Treaty Implementation whatsoever33. Instead another limitation was used: the domestic provisions legislat- The fact that Parliament only has a small ed on the basis of the external affairs power role in treaty making does not mean that to implement an international treaty were Parliament has no role at all. Whenever held to be invalid because they were not performance of an international treaty ob- sufficiently in line with the provisions of ligation requires legislation to be passed that underlying treaty34. domestically, it is for the Parliament to act. In the Burgess Air Navigation case there As shown the external affairs power is ex- was consensus that the matter regulated clusively a power of the Commonwealth, by the treaty was of international concern. the Parliament to act can only be the Com- Consequently it remained unclear whether monwealth Parliament. The main question the external affairs power could be utilised that has arisen in this context is whether if the subject matter were found not to be the external affairs power of the Common- of international concern but had nonethe- wealth is a sufficient basis of power for the less been dealt with internationally. Dixon J Commonwealth Parliament to legislate or pointed out the potential for abuse. He ex-
55 Directions plained that “it would be an extreme view” cern. On a question of this kind the Court cannot that the Commonwealth should be able to substitute its judgment for that of the Executive Government and Parliament. The fact of entry legislate internally based on the external into, and of ratification of, an international con- affairs power when the only internation- vention, evidences the judgment of the Execu- al nexus of the matter is the fact that the tive and of Parliament that the subject matter of government has engaged in a treaty on the the convention is of international character and matter35. The matter resurfaced almost 50 concern and that its implementation will be a benefit to Australia41. years later in regard to the Racial Discrim- ination Act36 which implemented the 1966 Mason J saw no criteria against which International Convention on the Elimina- one could measure whether something was tion of All Forms of Racial Discrimination. of international concern or not. One could, Stephen J reemphasized the need for a bo- of course, have taken the opposing view, na-fide limitation of the external affairs namely that the benefit of the doubt goes power to combat possible abuse: against the Commonwealth. That would […] that to fall within power, treaties must be not have stifled international cooperation bona fide agreements between states and not in- of the Commonwealth. It would have cur- stances of a foreign government lending itself as tailed the Commonwealth’s implemen- an accommodation party so as to bring a particu- tation power of any such treaty and hence lar subject-matter within the other party’s treaty have required the Commonwealth to seek power; and that to fall within power a treaty must consensus by the states upon which sub- deal with a matter of international rather than merely domestic concern37. sequent legislative implementation would then have depended. However, as in the Burgess case the an- The question of whether something is of swer could be avoided because the sub- “international concern” can also be raised ject-matter of the prohibition of racial dis- apart from treaty implementation. It was crimination was regarded as sufficiently of only coincidental that in both the Koowar- international concern38. ta and the Tasmania Dam cases interna- The High Court took what appeared to tional treaties existed as nexus points. The be a more centralistic view in the Tasmania Tasmania Dam decision insofar only reaf- Dam case39. The case concerned a highly firmed that the presence of an international controversial interference of the federal treaty renders the question of whether the government based on the World Heritage substance of that treaty is of “internation- Properties Conservation Act 198340 against al concern” moot42. Not surprisingly, the plans in the state of Tasmania to dam the Tasmania Dam decision has given rise to Franklin River. In a practical application of criticism that it essentially gives the Com- what elsewhere might be referred to as the monwealth unlimited power to legislate political question doctrine or judicial re- if only a treaty partner can be found. One straint, Mason J wrote: might caution that the “good faith” prin- ciple would in all probability and could be In any event, as I observed in Koowarta, at p. 651, the Court would undertake an invidious task if it brought forward if the federal level abused were to decide whether the subject matter of a this power and were to construe a treaty for convention is of international character or con- the sole reason of creating legislative pow-
56 Bröhmer ers43. That notwithstanding, the Common- dressed the external affairs power in this wealth power has been construed broadly context and their opinions point in the di- and the states have largely been taken out of rection of a limitation of the external affairs treaty implementation44. power were the Commonwealth to legislate based solely of recommendations or other non-binding expressions by international bodies47. 4.5. Parliament and International Recom- mendations
The further question is whether the ex- 4.6. Conclusion ternal affairs power can be invoked as a basis for legislation regardless of whether In Australia, the High Court has broadened a treaty requires implementation or not. the potential scope of the external affairs In R v Sharkey the High Court considered power significantly. Ithas been construed a criminal norm in the Commonwealth as a stand-alone power without systematic Crimes Act, which made it a crime “to ex- limitations with regard to the powers oth- cite disaffection against the Government erwise attributed to the States. Interesting- or Constitution of any of the King’s Do- ly Mason J explained in Tasmania Dam what minions”, to be an intra vires exercise of could be referred to as a reverse “living in- 45 the external affairs power . The issue also strument” interpretation approach, name- arises in the context of non obligating legal ly that the meaning of the Constitution (in acts emanating from treaties, for example this case of the term ‘external affairs’) does recommendations by international organ- not change merely because the practical re- izations, or from intergovernmental rec- alities have changed: ommendations or attempts to coordinate certain policy actions. A prominent exam- It is, of course, possible that the framers of the ple of this was the decision in Pape v Com- Constitution thought or assumed that the ex- ternal affairs power would have a less extensive missioner of Taxation. In 2009 Pape had operation than this development has brought challenged a fiscal stimulus package by the about and that Commonwealth legislation by way Commonwealth Government under which of implementation of treaty obligations would be every Australian received a tax bonus of infrequent and limited in scope. The framers of up to AUD 900 on the basis that the Com- the Constitution would not have foreseen with monwealth had no power to legislate46. The any degree of precision, if at all, the expansion in international and regional affairs that has oc- Commonwealth had based the underlying curred since the turn of the century, in particular legislation on several powers, the external the cooperation between nations that has result- affairs power being one of them. The Com- ed in the formation of international and regional monwealth argued that the G-20 group of conventions. But it is not, and could not be, sug- nations as well as the IMF and the OECD gested that by reason of this circumstance the power should now be given an operation which had recommended to their members to conforms to expectations held in 1900. For one undertake fiscal stimulus to combat the fi- thing it is impossible to ascertain what those nancial crisis. Only three of the judges ad- expectations may have been. For another the
57 Directions
difference between those expectations and sub- However, the text also makes it clear sequent events as they have fallen out seems to that the German federation, from its own have been a difference in the frequency and vol- ume of external affairs rather than a difference constitutional perspective, attributes par- in kind. Only if there was a difference in kind tial international legal personality to the could we begin to construct an argument that Länder, which are able under Article 32.3 the expression “external affairs” should receive to conclude international treaties with for- a construction which differs from the meaning that it would receive according to ordinary prin- eign states, albeit with the consent of the 49 ciples and interpretation48. Federal Government , in areas where the constituent Länder have retained the – ex- The external affairs power, though not clusive – power to legislate50. limitless, will go a long way to support cen- The language suggests a conflict be- tral action and lock out the states from a tween sections 1 and 3 of Article 32 as far substantive role. The various limitations as the power to conclude international could be summarized as bona fide limita- treaties is concerned. If this power be- tions, i.e. as limitations that by and large longed exclusively to the centre, as Article would only curtail attempts to employ the 32.1 would suggest, there would be no room external affairs power in what effectively for the application of Article 32.3 and any would amount to a circumvention of other- treaties concluded by the Länder. However, wise applicable limitations of central legis- the rules of statutory interpretation imply, lative powers. by contrast, not to interpret a provision in such a way that another provision is ren- dered useless. The Länder must therefore at least retain a concurring power to conclude 5. The External Affairs Power in Germany treaties where they possess respective powers domestically, i.e. the treaty making The vertical aspect of the external affairs power is shared by both the federation and power, i.e. its distribution between the the constituent Länder and can be exercised federal level and the Länder is addressed in by the Länder as long as the federation has Article 32 of the Basic Law: not acted. 1. Relations with foreign states shall be conduct- The next question is whether the fed- ed by the Federation. eration’s treaty making is limited to those 2. Before the conclusion of a treaty affecting the special circumstances of a Land, that Land shall areas where the Basic Law has attributed be consulted in timely fashion. powers to the federation under the enu- 3. Insofar as the Länder have power to legislate, meration principle. Where above the ques- they may conclude treaties with foreign states tion was whether Article 32.1 provides for with the consent of the Federal Government. a exclusive treaty-making powers for the The text makes it clear that the Feder- federation, the question now is whether ation as a whole is the one conducting the Article 32.3 provides for exclusive trea- foreign affairs, lining up the international ty-making powers for the Länder in the concept of “state” and the domestic alloca- areas left to them. Three approaches were tion of the external affairs power. initially discussed51.
58 Bröhmer
Australian Coat of Arms. (Source: Wikipedia)
The centralistic “Berlin solution” solu- treaty implementing power of the federa- tion proposed that the federal level should tion to those areas covered by the legisla- have full treaty-making power while ac- tive powers attributed to the federation by knowledging the concurrent rights of the the Basic Law. In other words the external Länder under Article 32.3 of the Basic Law. powers were to follow the internal powers. It also proposed that the legislative pow- This approach also keeps treaty making and ers necessary to implement a treaty should treaty implementation aligned but limits follow the treaty-making power in essence the ability of the federation to act inter- giving the federation full powers to make nationally. In fact in its pure form it would and implement treaties and keeping the often require mixed treaties where both treaty making and treaty implementing the federation and the Länder conclude the powers aligned. The “Berlin solution” is same treaty simultaneously52. The middle thus very similar to the Australian solution ground is held by so-called “North-Ger- of the problem. The second approach, re- man” approach under which the federation ferred to as the “South-German federalist has full treaty-making power but the im- solution” because it was mainly pushed by plementation follows the general attribu- the more federally oriented states in the tion of legislative power. The downside is south such as Bavaria and Baden-Württem- that treaty making and treaty implementa- berg, limited both the treaty making and the tion are separated.
59 Directions
Somewhat untypically for open ques- mines the legal situation and the Basic Law tions in German constitutional law, the cannot be amended by agreement between issue has never been clarified by the Ger- the Federation and the Länder. The inter- man Constitutional Court. Instead a prac- pretation of the Basic Law is the domain of tical solution has been found in 1957 that the Federal Constitutional Court but as long has become known as the Lindau Agreement as no challenge is brought to the Court, the between the Federation and the Länder53. Lindau Agreement will stand as it has for the Under this agreement the Federation will past 55 years. have comprehensive treaty making powers, i.e. even with regard to matters otherwise falling to the Länder. In exchange, if a trea- ty touches upon matters of exclusive pow- 6. Conclusion ers of the Länder, the Federation accepted an obligation to seek the agreement of the The Commonwealth Constitution and the Länder before entering into an interna- German Basic Law approach the distri- tional obligations and the Länder will also bution of power between the centre and be informed as early as possible about any the constituent entities in external affairs matter of concern to them. Institutionally matters from opposite directions. In the the collaboration was secured by the cre- end, in both cases a compromise of sorts, ation of a “Permanent Treaty Commission an institutional modus vivendi, has been of the Länder” where the Länder will coor- found in trying to balance the interests of dinate their position on treaty issues and the federation with those of the constitu- communicate the outcomes to the Federa- ent entities by improving information and tion54. communication between the two levels and It is noteworthy that the German debate by involving and listening to the constitu- and the practical solution in the Lindau ent entities. Agreement is about treaty making and not However, the position of the German about treaty implementation. The cen- Länder in external affairs is considera- tralistic approach – comprehensive trea- bly stronger than that of their Australian ty-making and implementation powers counterparts. Whereas both participate for the federation – did not prevail. Treaty through treaty commissions in the treaty implementation in all areas where the Län- making process, only the German Länder der have jurisdiction to legislate they will have a decisive role to play in the (constitu- also be responsible to afford the necessary tional) ratification of important, so-called implementation. Their procedural inte- political, treaties under Article 59.2 of the gration through the Treaty Commission is Basic Law. Such treaties must be passed by therefore not a polite offer to inform but a both houses of Parliament, the Bundestag necessity for the federal actors if they want and by the state chamber, the Bundesrat. to achieve their policy goals. The latter consists of members (ministers It should also be noted that the Lindau and premiers) of the executive government Agreement is a practical solution only and of the Länder and is as such a truly federal not a legal solution. The Basic Law deter- organ55. In addition, the Länder retain the
60 Bröhmer implementation power in areas where they Länder, to determine that Germany will not have legislative jurisdiction. be represented in the Council by a minister There is a further reason why the Länder of the Federal Government but will instead enjoy considerably more power in external be represented by a delegate to be chosen affairs that Australian States, at least if one by the Länder in the Bundesrat. Whereas the is willing to regard matters concerning the Article 23 regime is clearly an indication of European Union as external affairs. Germa- the potentially strong position of the Länder ny is a member state of the European Union in external affairs, it is also an indication of and the representation of Germany in the the degree to which European Union mat- Council of Ministers of the EU, its main ters have evolved into a sui generis relation- legislative body, is dealt with separately in ship and which can no longer be regarded Article 23 of the Basic Law. The details of as merely a subset of traditional external this regime are beyond the scope of this pa- affairs even if they cannot be regarded as per. Suffice it to say that the participation domestic affairs either. of the Länder can go as far as being entitled, if matters are legislated on the European Union level, which internally would con- stitute an exclusive legislative power of the
1 The Commonwealth of Australia pendent nation was an inevitable read subject to such Act, order, or Constitution Act 1900. progression, clearly adumbrated regulation, and shall, to the extent 2 L. Zines, The High Court and the by the grant of such powers as the of such repugnancy, but not oth- Constitution (5th ed.), Sydney, power with respect to defence and erwise, be and remain absolutely Federation Press, 2008, p. 376. external affairs. Section 61, in en- void and inoperative”. 3 China Ocean Shipping Co v South abling the Governor-General as 6 Statute of Westminster 1931, ch. 4 Australia (1979) 145 CLR 172, in truth a Viceroy to exercise the (Regnal. 22 and 23 Geo 5). How- para. 21. executive power of the Common- ever, under Section 10 this statute 4 New South Wales v Commonwealth wealth, underlines the prospect of only became effective after the (Seas and Submerged Lands case) independent nationhood, which Statute of Westminster Adoption (1975) 135 CLR 337 (373), para. the enactment of the Constitu- Act 1942 had been passed. This 49 (“A new colonial polity was tion provided. That prospect in happened in 1942 and took ret- brought into existence”) and due course matured, aided in that rospective effect on 3.9.1939, the para. 52: “Whilst the new Com- behalf by the Balfour Declaration beginning of World War II. This monwealth was upon its creation and the Statute of Westminster sequence of events shows that the Australian colony within the and its adoption”. there was certainly no immediate Empire, the grant of the power 5 Colonial Laws Validity Act 1865. pressure in the Australian politi- with respect to external affairs Section 2 states: “Any colonial law cal sphere to formally ensure full was a clear recognition, not mere- which is or shall be in any respect sovereignty and independence. ly that, by uniting, the people of repugnant to the provisions of any 7 See Copyright Owners Reproduction Australia were moving towards Act of Parliament extending to Society Ltd v EMI (Australia) Pty nationhood, but that it was the the colony to which such law may Ltd (1958) 100 CLR 597, where Commonwealth which would in relate, or repugnant to any order the High Court held, that the new due course become the nation or regulation made under au- British Copyright Act 1956 could state, internationally recognized thority of such Act of Parliament, have no effect in Australia because as such and independent. The or having in the colony the force enactment thereof had not been progression from colony to inde- and effect of such Act, shall be “requested or consented to”.
61 Directions
8 Section 8 of the Statute of West- under the authority of the United al Agreements and the Australian minster states: “Nothing in this States, shall be the supreme law of Treaty Power, in «Australian Year Act shall be deemed to confer any the land; and the judges in every Book of International Law», vol. power to repeal or alter the Con- state shall be bound thereby, an- 4, 1968-1969, pp. 87-88, who stitution or the Constitution Act ything in the Constitution or laws raises the question with a com- of the Commonwealth of Australia of any State to the contrary not- parative look to Canada and states or the Constitution Act of the Do- withstanding”. that at any rate “[t]he Australian minion of New Zealand otherwise 15 Kruger v Commonwealth (“Stolen States have appeared to acqui- than in accordance with the law Generations case”) (1997) 190 esce in the fact that they have no existing before the commence- CLR 1, the decision referred to locus standi in negotiations be- ment of this Act”. was rendered by the High Court tween international states”. That 9 G. Winterton, The Acquisition of in the case Minister of State for something is not an international Independence, in R. French, G. Immigration & Ethnic Affairs v Ah treaty in the sense of the Vienna Lindell, C. Saunders (edited by), Hin Teoh (“Teoh’s case”) (1995) Convention on the Law of Treaties Reflections on the Australian Con- 183 CLR 273. Teoh was a convict- (or any customary international stitution, Sydney, The Federation ed drug dealer who was denied law not codified in that Conven- Press, 2003, p. 31 referring to the permanent residence in Australia tion) does not necessarily mean decision of the Supreme Court of and who was to be deported. The that there can only be a private Victoria in Ukley v Ukley (1977) deportation would have breached contractual arrangement. For ex- VR 121, pp. 129-130. the rights of his four children in ample, the German Federal Con- 10 G. Lindell, Further Reflection on the Australia under the Convention stitutional Court had to decide Date of the Acquisition of Australia’s on the Rights of the Child (CRC) whether the ‘Agreement Between Independence, in French, Lindell, but the CRC had not been incor- the Land Baden and the Port Au- Saunders (edited by), Reflections porated into Australian law. tonome de Strasbourg’ concerning on the Australian Constitution cit., 16 Kruger v Commonwealth (“Stolen the Joint Administration of the p. 51. Generations case”) (1997) 190 CLR Port of Kehl (‘Kehl Agreement’) 11 BVerfG, 2 BvE 2/08 of 30.6.2009 1. was an international agreement (BVerfGE 123, 267). See also the 17 Fn. 1 supra and subsequent text. in the sense of Article 32 of the decision of 7.9.2011 regarding 18 New South Wales v Commonwealth Basic Law between the then ex- the European sovereign debt (1975) 135 CLR 337, p. 373, para. isting Land Baden and the French crises and related rescue efforts, 51 (Seas and Submerged Lands local authority. The fact that it was BVerfG, 2 BvR 987/10. case). The legal term ‘colony’ not only meant, in this particular 12 It is not quite clear where exactly refers to an entity without legal context, that the arrangement did the boundaries lie and whether personality and hence without not need the consent of the feder- they are absolute and hence only sovereignty, see, for example, A. al government. See I. Couzigou, surmountable by revolutionary Aust, Handbook of International Kehl Hafen Case, in R. Wolfrum act (Article 79.3 of the Basic Law) Law (2nd ed.), Cambridge, Cam- (edited by), The Max Planck En- or whether these boundaries bridge University Press, 2010, p. cyclopedia of Public International could be overcome by framing 30. Law, Oxford University Press, a new constitution under Ar- 19 Victoria v Commonwealth (“Indus- 2008-, online edition,
62 Bröhmer
ties: Australia and the Internation- 32 R v Burgess; ex parte Henry 55 manian Dam case) (1983) 158 CLR al Legal Order, in «Sydney Law CLR 608 (1936). 1, Mason J para. 11. Review», vol. 25, n. 4, p. 423. 33 Henry had been charged with 42 See Dawson J: “The Tasmanian 26 The Attorney General of Ontario piloting a small aircraft without Dam Case does, I think, provide (Appeal No. 105 of 1936) v The Attor- the necessary license in Austral- an answer in the present case be- ney General of Canada and others ia, when there was no chance for cause whatever else it decided, it [1937] UKPC 11, pp. 5-6. him to cross any borders. The did decide that the legislative im- 27 See also Nielsen and Claire, The Court nonetheless stated: “If, plementation of an international Executive Treaty-Making Prerog- however, it should be thought treaty concluded in good faith is ative: A History and Critique, in that before a subject can legiti- within the ambit of the external «New Zealand Yearbook of In- mately be dealt with under this affairs power”. Richardson v For- ternational Law», vol. 4, 2007, p. heading it should possess some estry Commission (1988) 164 CLR 173. characteristics which make it 261, para. 4. 28 Article II Section II, Clause 2 of specially proper to be dealt with 43 Gibbs CJ expressed doubts as to the United States Constitution: on an international basis, there the effectivity of the bona fides “He shall have Power, by and with can be little room for doubt that limitation referring to it as “at the Advice and Consent of the aviation is such a subject. Aircraft best, ‘a frail shield’”), Koowarta Senate, to make Treaties, pro- pass rapidly from one country to v Bjelke-Petersen (1982) 153 CLR vided two thirds of the Senators another, and the subject of their 168, para. 30. present concur; […]”. regulation and control not only is 44 The High Court confirmed its 29 JSCOT tabled 12 reports in 2011 suitable for international agree- broad interpretation of external and 2012 (as of 1st August 2012), ment but almost imperatively affairs with regard to treaty im-
63 Directions
it is difficult to see any justifica- identified the means chosen in education (schools, universities), tion for treating the content of the legislation as one of the ways in cultural affairs, broadcasting, po- phrase „external affairs“ as crys- which parties to the treaty are to lice (but only the preventive and tallised at the commencement of pursue some commonly held as- institutional part, not criminal federation, or as denying it a par- piration expressed in the treaty. procedure and criminal law) are ticular application on the ground In the present case, however, it the main ones. The Basic Law also that the application was not fore- is not necessary to examine these differentiates between legislative seen or could not have been fore- questions. It is sufficient to ob- and administrative powers and seen a century ago”, id. at para. 25 serve that neither the Declaration the administrative powers do not (Brennan CJ, Toohey, Gaudron, by the leaders of the G-20, nor the follow the legislative powers and McHugh and Gummow JJ). recommendations of either the are attributed separately, again 45 R v Sharkey (1949) 79 CLR 121. IMF or the OECD, imposed any with the Länder being responsible 46 Pape v Commissioner of Taxation obligation on Australia to take ac- unless otherwise provided. Ger- (2009) 238 CLR 1. The case is and tion of the kind now in question”. man federalism is not so much will remain highly relevant for 48 Commonwealth v Tasmania (Tas- predicated on the allocation of some time to come. Whereas Bry- manian Dam case) (1983) 158 CLR substantive legislative power an Pape, then a Senior Lecturer 1, para. 13. See also Zines, The High but more on the still far-reach- at the University of New England Court and the Constitution cit., p. ing institutional involvement of School of Law, lost the case, he 389. the Länder in federal law making won on some crucial points per- 49 The situation under international through the second chamber, the taining to the scope of legislative law is more complicated. Articles Bundesrat. See Bröhmer, Jürgen, powers of the Commonwealth 1 and 7 of the Vienna Conven- The Federal Element of the Ger- on which the underlying Tax tion on the Law of Treaties only man Republic - Issues and Devel- Bonus For Working Australians mention “states” as the term opments, in J. Bröhmer (edited Act (No 2) 2009 (Cth),
64 Engineers: The Case that Changed Australian Constitutional History
michelle evans
1. Introduction Engineers, in which the High Court irrepa- rably altered the balance of power between In Australia, the framers of the the Commonwealth and the states by inter- Constitution1, by adopting a federal system preting the Constitution literally, or in oth- of government, intended to protect state er words, as a statute of the British Parlia- power and autonomy against centralisation. ment, devoid from any historical intentions The Commonwealth Constitution that or federal implications. In the words of resulted from the Constitutional Craven: ‘Since the decision in the Engineers Convention Debates of the 1890s limits case in the 1920s, the High Court has been central powers; provides for the continued strongly, institutionally, anti-federal’2. existence of the states, their Constitutions In fact, federalism in Australia has and powers; and consequently, mandates been compromised to such an extent a federal balance between the central and that Australia can no longer be seen as an state governments. Central to a federal authentic federation3. This trend towards system of government, such as Australia’s, centralisation has gradually worsened, is the ideal of maintaining the powers and culminating in decisions such as New South autonomy of the states so that decisions Wales v Commonwealth of Australia (‘Work can be made, and problems solved locally Choices’ case). In Work Choices, a majority wherever possible. of the High Court affirmed that the federal Despite the federal origins and balance is not relevant when interpreting intentions of the framers of the the Constitution and endorsed a very broad Commonwealth Constitution, the interpretation of the Commonwealth Australian federal landscape has become Parliament’s corporations power. This increasingly centralised. The turning point greatly expanded the Commonwealth towards centralisation was the decision in Parliament’s legislative powers in that area giornale di storia costituzionale / journal of constitutional history 24 / II 2012 65 Directions and paved the way for further expansions. their legislative or executive powers4. The An example of the states’ loss of financial doctrine was a necessary implication in or- autonomy occurred after the decision in Ha der to preserve and protect the federal divi- v New South Wales (‘Ha’), in which the High sion of powers between the Commonwealth Court affirmed a broad interpretation of and the states. excise duties resulting in a loss of $5 billion At the same time as they implied the per annum to the states because s 90 of doctrine of implied intergovernmental im- the Constitution provides that only the munities, the High Court, prior to Engineers Commonwealth can levy duties of excise. also implied the ‘reserved powers doctrine’ When one looks at how the High Court or ‘reserved state powers doctrine’, once interpreted the Constitution before En- again on the basis of the federal nature of gineers, the extent of the Engineers High the Constitution. It provided that the legis- Court’s departure from precedent and lative powers of the Commonwealth pre- tradition can be seen as nothing less than scribed by the Constitution should be read radical, and to use more modern termi- narrowly so as not to detract from the power nology, it could be said to amount to judi- of the states ‘reserved’ by s 107 of the Com- cial activism. In decisions regarding the monwealth Constitution5. Section 107 pro- extent and delineation of Commonwealth vides that the states will retain their powers and state powers after federation, the High after federation, except to the extent that Court developed two interpretive doctrines they had been given exclusively to the Com- that were implied from the federal nature monwealth, or otherwise withdrawn from of the Constitution. These were the ‘im- the states, by the new Constitution. munity of instrumentalities doctrine’ and This paper will examine and critique the the ‘reserved state powers doctrine’. This Engineers decision in detail, outlining how approach to constitutional interpretation it radically departed from these earlier in- became known as ‘originalism’ because it terpretive doctrines employed by the High sought to give effect to the original intent of Court to protect the federal balance of pow- the framers of the Constitution. er between state and Commonwealth gov- The ‘immunity of instrumentalities ernments. In the latter part of this paper, doctrine’, also known as the ‘implied inter- the application of precedent by the High governmental immunities doctrine’, was Court will be examined, in order to explain an implication developed and applied by why the Engineers’ High Court was so readi- the early High Court that was based on the ly able to depart from it. Some observations federal nature of the Constitution. It rec- will be made as to why the decision has ognised that the Commonwealth and state proven to be so enduring, despite being so governments were independent entities, ill-conceived. and consequently, could not legislate so as to interfere with the operation of each oth- er’s affairs. This meant that both the Com- monwealth and states were immune from the operation of each other’s legislation if that legislation impinged on the exercise of
66 Evans
2. The Engineers Case – Disregarding the wealth Arbitration Court. The Conciliation Federal Balance and Arbitration Act 1904 (Cth) gave the Court jurisdiction to prevent and settle industrial The Engineers decision was handed down on disputes that extended beyond the limits of 31 August 1920 in Melbourne. In Engineers, any one state. The types of disputes that the a 5-1 majority of the High Court rejected Court was empowered to resolve included the immunity of instrumentalities doc- those where the Commonwealth, state or trine, and in passing, also rejected the re- any Commonwealth or state public author- served powers doctrine. Engineers was, and ity was an employer. remains, a controversial decision sparking Included in the list of 844 employers considerable debate. This was primarily who were parties to the dispute were sever- because, as noted above, it completely re- al public authorities of the state of Western versed the approach taken by the early High Australia. These were the Western Aus- Court by endorsing an expansive interpre- tralian Minister for Trading Concerns, the tation of Commonwealth powers, and with- Western Australian State Implement and out limitation by any concept of a federal Engineering Works and the Western Aus- balance, unless expressly stated in the Con- tralian State Sawmills. Western Australia stitution. The lack of logic and reasoning in argued that they should be exempt from the the joint majority decision, attributed to operation of the Conciliation and Arbitration the authorship of Isaacs J and delivered by Act 1904 (Cth) on the basis of the immuni- him, was noted by Sawer who stated, ‘The ty of instrumentalities doctrine. In other joint judgment is one of the worst written words, they argued that the conciliation and organised in Australian judicial his- and arbitration power in s 51(xxxv) of the tory. Isaacs was given to rhetoric and rep- Constitution should not allow the Common- etition, and here he gave these habits full wealth to legislate for the regulation of the rein’6. Despite this, Engineers has proved states as employers. To do so, they argued, to be a lasting constitutional precedent that would contravene the immunity of instru- has even recently been used to justify cen- mentalities doctrine. As this argument tralisation7. raised constitutional issues, the President of the Commonwealth Arbitration Court referred the case to the High Court, pursu- ant to s 18 of the Judiciary Act 1903 (Cth)8. 2.1. The Facts
The Amalgamated Society of Engineers (‘the Union’) was a Trade Union represent- 2.2. Summary of the Decision ing workers throughout Australia. The Un- ion served a log of claims on 844 employers A 5-1 majority of the High Court held that throughout Australia claiming improved the conciliation and arbitration power in wages and conditions for its members. s 51(xxxv) was wide enough to allow the When the Union’s demands were not met, it Federal Parliament to make laws with re- commenced proceedings in the Common- spect to state government employers and
67 Directions employees. Additionally, the state was not This is then justified by the joint majority immune from interference by the Com- in a somewhat self-satisfying manner when monwealth on the basis of any immunity they state that it was their ‘manifest duty’ implied from the federal nature of the Con- to give ‘earnest attention’ to the interpre- stitution. The majority, consisting of Knox tation of the Constitution in order ‘to give CJ, Isaacs, Rich and Starke JJ wrote a joint true effect to the relevant constitutional judgment (‘the joint majority’). Higgins J, provisions’13, because this had not been also in the majority, delivered a separate done previously. The joint majority harsh- judgment which was consistent with that of ly criticised the previous line of federalist the joint majority on its central arguments. decisions, stating: ‘The attempt to deduce Powers J, for unknown reasons did not sit any consistent rule from them has not only to hear the case9. failed, but has disclosed an increasing en- tanglement and uncertainty, and a conflict both with the text of the Constitution and with distinct and clear declarations of law 14 2.3. Willingness to Depart from Existing by the Privy Council’ . Authorities Again, this highly critical approach was echoed by Higgins J in his separate majori- Such a result was somewhat unexpected ty judgment, stating at the beginning of his when contrasted with the original argument judgment, ‘it is our duty to reconsider the put forward by Robert Menzies, Counsel subject, and to obey the Constitution and the for the Union. His initial argument was to Act rather than any decision of this Court, if the decision be shown to have been mistak- distinguish the application of the implied 15 intergovernmental immunities doctrine en’ . The confidence in which these state- on the basis that Western Australian em- ments were made was arguably an attempt ployees were engaged in ‘trading activities’, to mislead potential critics of the Engineers rather than ‘governmental activities’10. decision away from its activist nature by However, after Starke J asserted that this accusing previous justices of judicial ac- line of argument was ‘a lot of nonsense’, tivism when they upheld the federal nature Menzies asserted that he could put forward of the Constitution. Further comment will a ‘sensible argument’ if allowed to chal- be made in the following section about the lenge the previous line of authorities which arbitrariness of this literalist approach, de- had affirmed and applied the implied in- spite its outward appearance of objectivity. tergovernmental immunities doctrine11. Menzies’ ‘sensible argument’ was enthu- siastically accepted and endorsed in the joint majority judgment, and in the major- 2.4. A Literal, yet Expansive Approach ity judgment of Higgins J. In fact, the joint majority judgment in Engineers commenc- The Engineers majority advocated a new es with criticism of previous decisions of method of constitutional interpretation the High Court which it claims are incon- from the previous line of decisions which sistent and based on ‘personal opinion’12. is known as ‘literalism’. The joint major-
68 Evans ity stated that the words of the Constitu- itation or restriction upon the power, to indicate 21 tion must be interpreted in their ‘natural it in the Constitution . sense’16 and by utilising ‘the ordinary lines 17 Higgins J also noted the lack of express of statutory construction’ . That is, the limitation on the legislative powers of the Constitution was to be interpreted as if it was Federal Parliament in the conciliation and a statute, with its words being given their arbitration placitum22, concluding that the literal and widest possible meaning. Quot- Federal Parliament could bind the states ing from the English authority of Hodge v The 18 unless the express wording of the Constitu- Queen , the joint majority commented that tion excluded it: grants of Commonwealth power should be construed as ‘plenary’ and ‘ample… as the My view is that, on the true construction of sec Imperial Parliament in the plenitude of its 51, the State activities which are not distinctly 19 excluded from the Federal powers by the Consti- power possessed and could bestow’ . This tution are subject to the Federal laws, to the full method of interpretation was also adopted extent of their meaning; and that there is no ex- by Higgins J in his majority judgment: emption from Federal Acts unless and until they pass beyond the limits of the Federal powers on The question is, what does the language mean; their true construction23. and when we find what the language means, in its ordinary and natural sense, it is our duty to obey By characterising the conciliation and that meaning, even if we think the result would arbitration power generally and expansive- be inconvenient or impolitic or improbable. Words limiting the power are not to be read into ly, the majority sanctioned the enactment by the statute if it can be construed without a limi- the Federal Parliament of legislation that in- tation. […] The Parliament is given a power here terfered with state government employers24. to make any law which, as it thinks, may conduce One of the many problems with this to the peace, order and good government of Aus- new, supposedly value-neutral, literal ap- tralia on the subject of pl. xxxv., ‘subject to this Constitution.’ There is no limitation to the power proach to interpretation adopted by the En- in the words of the placitum; and unless the limi- gineers majority was that it failed to achieve tation can be found elsewhere in the Constitution, objectivity. Gageler notes: it does not exist at all20. The difficulty is that a purely judge-based inter- Like Higgins J, the joint majority also pretation of the wording of constitutional powers noted that enumerated Commonwealth and restraints is necessarily open to the same criticism as was employed in the Engineers’ case legislative powers were to be interpreted to consign the old doctrines to oblivion. That is as extensively as possible unless they were not to suggest that legalism is a mere cloak for limited by express provision in the Consti- blatantly political action. […] It is simply to say tution. They stated: that legalism is incapable of fulfilling its own agenda: that a neutrally based a priori approach It is undoubted that those who maintain the au- to constitutional line drawing is in its own terms thority of the Commonwealth Parliament to pass impossible and that the High Court’s acknowl- a certain law should be able to point to some enu- edged readiness to depart from old doctrine merated power containing the requisite author- where it considers it misconceived or inappro- ity. But we also hold that, where the affirmative priate means that the choice between any num- terms of a stated power would justify an enact- ber of reasonable alternative positions assumes ment, it rests upon those who rely on some lim- an air of arbitrariness25.
69 Directions
have been widely criticised by commenta- tors such as Walker who noted that a ‘literal meaning’ means something very different from ‘the widest literal meaning’28 or ‘the widest (that is, most centralist) meaning that the words can possibly bear’29. In ad- dition, as Walker explains, the Court disre- garded the fact that a broad reading of one power may make another power ‘redundant or meaningless’30. Craven has also fiercely criticised the majority’s literal approach in Engineers because it undermines the ‘cen- tral character’ of the Constitution as fun- damentally federal, oversimplifying the Constitution, and ignoring the ‘complex range of historic intentions’ behind the document as fundamentally and incontro- vertibly federal31. Instead, Craven (perhaps rather cynically) points out that: ‘The es- sence of literalism is thus that the Constitu- tion may be read in much the same way as a telephone directory or the instructions to a Sir Isaac Isaacs (1855-1948): Australian judge and model aeroplane kit, with the assistance of politician, the third Chief Justice of the High Court, 32 ninth Governor-General of Australia and the first a dictionary, but not much else’ . born in Australia to occupy that post. He is the only person ever to have held both positions of Chief Justice of the High Court and Governor-General of Australia. (Photo from Wikipedia) 2.5. Rejection of Implications Based on Fed- eralism However, Craven has suggested that lit- eralism is, to use Gagler’s words, ‘a mere In adopting a broad and general interpre- cloak for blatantly political action’. He ar- tation of Commonwealth powers, the joint gues that the High Court is best viewed not majority also rejected any implications as a legal institution, but as a political insti- from the constitutional text, and accord- tution attempting to ‘acquire and exercise ingly rejected the previously recognised power’ in a ‘calculated’ manner26. Thus, immunity of the states from the application instead of fulfilling its intended role as a of Commonwealth laws that were otherwise ‘protector of federalism’, the High Court within power, and vice versa. The joint ma- has pursued its own ‘progressivist’, an- jority dismissed the relevance of looking at ti-federal, centralist agenda27. the federal intentions on which the Consti- The mechanics of the expansive literal tution was based, stating: approach adopted by the Engineers majority
70 Evans
It is an interpretation of the Constitution de- Crown in its relation to Commonwealth and to pending on an implication which is formed on a States, necessarily so far binds the Crown, and vague, individual conception of the spirit of the laws validly made by authority of the Constitution, compact, which is not the result of interpreting bind, so far as they purport to do so, the people any specific language to be quoted, nor referable of every State considered as individuals or as po- to any recognised principle of the common law of litical organisms called States — in other words, the Constitution, and which, when started, is re- bind both Crown and subjects35. buttable by an intention of exclusion equally not referable to any language of the instrument or According to the majority, limitations acknowledged common law constitutional prin- based on the federal nature of the Constitu- ciple, but arrived at by the Court on the opinions tion were erroneously based on American of Judges as to hopes and expectations respecting vague external conditions33. authorities and the American federal sys- tem. Instead, they argued that English au- They went on to state that: ‘The doctrine thorities, namely those of the Privy Coun- of “implied prohibition” finds no place cil, should be followed. The joint majority where the ordinary principles of construc- stated: tion are applied so as to discover in the American authorities, however illustrious the actual terms of the instrument their ex- tribunals may be, are not a secure basis on which 34 pressed or necessarily implied meaning’ . to build fundamentally with respect to our own Thus, instead of viewing the Constitution as Constitution […] they cannot […] be recognised a federal document, with corresponding as standards whereby to measure the respective immunities of each level of government rights of the Commonwealth and the States un- der the Australian Constitution. For the proper from interference with one another, the construction of the Australian Constitution it is majority treated the Constitution as a British essential to bear in mind two cardinal features statute and regarded the relevant question of our political system which are interwoven in to be whether the Constitution could bind its texture and, notwithstanding considerable the Crown. They concluded that the Crown, similarity of structural design, including the de- pository of residual powers, radically distinguish consisting of both the state and federal ex- it from the American Constitution. Pervading the ecutive, was indivisible and was subject to instrument, they must be taken into account in the Constitution, meaning that the states determining the meaning of its language. One is were subject to Commonwealth laws: the common sovereignty of all parts of the British Empire; the other is the principle of responsible The first step in the examination of the Consti- government36. tution is to emphasise the primary legal axiom that the Crown is ubiquitous and indivisible in The English authorities advocated by the King’s dominions. Though the Crown is one the majority regarded parliamentary sov- and indivisible throughout the Empire, its legis- ereignty as paramount to responsible gov- lative, executive and judicial power is exercisable by different agents in different localities […] the ernment. This meant that it should be a po- Federal Constitution of Australia, being passed by litical question for Parliament to determine the Imperial Parliament for the express purpose the limits of its legislative power, rather of regulating the royal exercise of legislative, ex- than the Courts. Hence, parliamentary ecutive and judicial power throughout Australia, sovereignty gives a great deal of latitude to is by its own inherent force binding on the Crown to the extent of its operation […] The Common- Parliament, without interference from the wealth Constitution as it exists for the time being, judiciary. Ratnapala notes that this notion dealing expressly with sovereign functions of the of sovereignty supports centralism, defin-
71 Directions ing ‘constitutional sovereignty’ as ‘a limit- respective spheres, and in particular to ensure lessly empowered supreme authority with- that the Commonwealth kept within the ambit of 37 its powers and did not invade the realms of the in a national legal system’ . He further States41. states that, ‘The driving sentiment behind sovereignty in the constitutional sense is The approach of the Engineers joint ma- the belief that governments, particularly jority is also problematic because, as not- those responsible to the electorate, must ed above, the federal structure of Austral- not be restrained in the pursuit of the pub- ia’s system of government is obvious upon lic good’38. Ratnapala notes that the result reading express provisions of the Consti- of Engineers was a shift to this constitutional tution, and upon viewing the document as sovereignty model, even to the extent that a whole. In fact, even Higgins J stated that the Commonwealth could ‘extend itself to a ‘fundamental rule of interpretation’ was matters over which it has no express con- ‘that a statute is to be expounded accord- stitutional authority’39. ing to the intent of the Parliament that It is interesting to note that although made it; and that intention has to be found the majority rejected the reserved powers by an examination of the language used in 42 doctrine and implied intergovernmen- the statute as a whole’ . Although Higgins tal immunities doctrines as unauthorised J was referring to the language throughout constitutional implications, they endorsed the document, he acknowledged (albeit in- the British tradition of parliamentary sov- advertently) that the whole document was ereignty and the constitutional implication nevertheless relevant. The myopic view of of responsible government. This selective the joint majority overlooked this, instead approach has been criticised by Walker as focusing on an expansive interpretation of contradictory40. Further, Craven argues individual words in the Constitution. They that if any implication must be elevated stated: above all others, it must be one of feder- the legislative powers given to the Common- alism, to which all other concepts, such as wealth Parliament are all prefaced with one gen- responsible government, play a support- eral express limitation, namely, ‘subject to this ing role. In fact, in discussing the intended Constitution,’ and consequently those words, which have to be applied seriatim to each placi- role of the High Court Craven argues that tum, require the Court to consider with respect federalism is much more than a mere im- to each separate placitum, over and beyond the plication: general fundamental considerations applying to all the placita, whether there is anything in the The positive and fundamental role of the High Constitution which falls within the express limi- Court was to protect federalism. In this connec- tation referred to in the governing words of sec. tion, it goes without saying that the Constitution 5143. itself breathes federalism, not merely implicitly, but expressly in its very terms. If one had to pick One of the flaws of this literalist ap- the ‘great theme’ of the Constitution, it could only proach is that it fails to take into account the be federalism, upon the broad stage of which all method of interpretation to be applied in other concepts play their crucial but undeniably supporting roles. The critical function of the the event of ambiguity in wording, and does Court in relation to federalism was to maintain not take into account how to interpret pro- the Commonwealth and the States within their visions that require historical background
72 Evans to be understood, such as the meaning of monwealth Acts but to every Commonwealth Act, ‘duties of customs and excise’ in s 9044. over not merely State Acts passed under concur- rent powers but all State Acts, though passed un- der an exclusive power, if any provisions of the two conflict; as they may — if they do not, then cadit quaestio47. 2.6. The Elevation of s 109 They said that s 109 could be used to justify some of the previous decisions, con- As well as being selective about what could cerning taxation laws, where the implied be implied from the Constitution and what immunity of instrumentalities doctrine could not, the joint majority was selective has been applied48. However, as is com- about how to read the specific federal pro- monplace throughout this decision, little visions of the Constitution. They read down reasoning or justification is given for the s 107 (which, as noted earlier in this paper, elevation of s 109, contrary to early High saved state powers after federation), and Court authorities which regarded s 107 as elevated s 109 (which seeks to resolve in- the more crucial provision. consistency between overlapping state and The Engineers majority irreparably al- Commonwealth legislation by stating that tered the federal balance by rejecting any the Commonwealth legislation will prevail implication from the Constitutional text; to the extent of any inconsistency) as par- eliminating the doctrine of immunity of amount in demonstrating the Common- instrumentalities and with it, the reserved wealth’s supremacy over the states. The powers doctrine, whilst at the same time joint majority stated: expressly proclaiming the ‘supremacy’ of Sec. 107 continues the previously existing powers the Commonwealth over the states. Instead of every State Parliament to legislate with respect of the Commonwealth and the states being to (1) State exclusive powers and (2) State powers recognised as independent and autono- which are concurrent with Commonwealth pow- mous in their own spheres, the Engineers ers. But it is a fundamental and fatal error to read majority endorsed Commonwealth inter- sec. 107 as reserving any power from the Com- monwealth that falls fairly within the explicit ference in state matters, thus jeopardising terms of an express grant in sec. 51, as that grant their sovereignty as provided by the federal is reasonably construed, unless that reservation nature of the Constitution49. is as explicitly stated45.
The joint majority continued on to dis- cuss ‘the supremacy […] established by ex- press words of the Constitution’46, or rather 2.7. The Dissenting Judgment s 109 specifically, which they declared il- lustrated Commonwealth supremacy: Gavan Duffy J was alone in dissent, and his dissent is very far from a valiant attempt to That section, which says ‘When a law of a State save the federal balance from its future de- is inconsistent with a law of the Commonwealth, the latter shall prevail, and the former shall, to mise. Discussion of Gavan Duffy J’s dissent the extent of the inconsistency, be invalid,’ gives is largely omitted from academic commen- supremacy, not to any particular class of Com- tary on the Engineers decision. This is per-
73 Directions haps because it is inherently weak in terms However, these comments were made of its failure to address the matters raised in the context of Gavan Duffy J’s argument in the majority judgments and its failure to that any laws made by the Federal Parlia- consider and address thoroughly the earlier ment were required by the Constitution to be 54 line of cases that the High Court was being ‘subject to this Constitution’ . As a result, asked to reconsider. This point is noted by the question for Gavan Duffy J then became Booker and Glass, who also comment that whether a law made pursuant to s 51 could ‘Gavan Duffy J’s dissent has been forgotten bind the Western Australian Crown. This reasoning was premised on the common and for good reason’50. law rule that the Crown was not bound by Gavan Duffy J commented on the im- a statute unless the statute itself purported portance of the states in the federal com- to bind the Crown — so like the majority, pact and the intent of the framers of the Gavan Duffy J treated the Constitution as if Constitution: it was a British statute. He concluded that The existence of the States as a polity is as es- as s 51 (xxxv) was not expressed to bind the sential to the Constitution as the existence of the Crown it did not bind the Western Austral- Commonwealth. The fundamental conception ian government Crown. of the Federation as set out in the Constitution is that the people of Australia, who had theretofore existed in several distinct communities under distinct polities, should thenceforward unite for certain specific purposes in one Federal Com- 3. Engineers: A Radical Departure From monwealth, but for all other purposes should Precedent remain precisely as they had been before Feder- 51 ation . In the words of Geoffrey de Q Walker, the Engineers decision ‘switched the entire He also remarked upon the operation of enterprise of Australian federalism onto a ss 106 and 107, which he noted evidenced 52 diverging track that carried it to destina- the intention of the colonies prior to fed- tions far removed from those intended by eration to preserve state sovereignty after the generation that had brought the fed- federation had occurred: eration into being’55. In order to examine secs. 106 and 107 preserve the Constitution of why this may have occurred, and why the each State as it existed at the establishment of the High Court was so willing in Engineers to Commonwealth, and every power of a State Par- deviate from precedent, this section will liament unless it is by the Constitution exclusively discuss the role of precedent, specifically, vested in the Parliament of the Commonwealth stare decisis, in the High Court. It will also or withdrawn from the Parliament of the State. seek to examine why the High Court was so In this case it is not disputed that the industrial readily able to part with it in Engineers, yet operations conducted by the Crown in Western felt so bound to follow Engineers in subse- Australia are within the Constitution of that State. They are authorised under its legislative power quent cases. In fact, some commentators and conducted under its executive power, and have suggested that the way Engineers treat- therefore free from the authority conferred upon ed precedent is nothing short of alarming the Federal Parliament by sec. 5153. and was therefore tantamount to judicial
74 Evans activism. Geoffrey de Q Walker, quoting Dr der Hamilton in Federalist Paper number Colin Hughes, notes, ‘After nearly twenty 7865. years’ experience the ruling criterion for The term ‘stare decisis’ refers to the the construction of the Constitution was re- binding nature of precedent. That is, where jected and a new one put in its place’56. He a legal rule has been applied in a particular also notes that despite the fact that the dis- way in a previous decision, it must be ap- missal of the reserved powers doctrine was plied again if the same issues come before obiter dicta, and never formally overruled, the court again66. It provides that a court its dismissal has subsequently been taken should follow prior decisions, except in as binding precedent57. exceptional circumstances67. Despite this, The starting point of this discussion a departure from precedent can be readily should be to define the terms ‘precedent’ found in constitutional cases68, perhaps and ‘stare decisis’. The terms are often due to the High Court’s primary role as the used interchangeably. However, some- guardian of the Constitution and the lack of times ‘precedent’ is defined in a broad- any direction in the Constitution as to how er sense, for example, as ‘a broad class of they must interpret it69. In addition, the practices employed in rendering judicial High Court has held that it is not bound by decisions’58. At a general level, Duxbury its own previous decisions70 but neverthe- notes that: ‘A precedent is a past event less should be reluctant to overturn them. — in law the event is nearly always a deci- As an example of this reluctance, Moens sion — which serves as a guide for present and Trone cite Capital Duplicators Pty Ltd v action’59. Precedent requires that the ‘ra- Australian Capital Territory [No 2] where the tio decidendi’ from prior cases of the same High Court refused to reconsider two prior or higher courts must be followed to en- decisions because government had acted sure consistency, and some degree of pre- in reliance on them, to maintain certainty, dictability in judicial decision-making60. and because they had been applied by the ‘Ratio decidendi’ means the ‘reason for de- High Court in numerous preceding deci- ciding’61. This does not refer to all of the sions71. Judge’s reasoning, some of which could be In contrast, as Kirby points out, there incidental to the outcome or not directly is a willingness on the part of some High related to the facts in issue. This reasoning Court Justices to overrule past decisions is known as ‘obiter dicta’, which translates because, in their opinion, they are, to use as ‘saying by the way’62. the words from High Court judgments that The doctrine of precedent and stare de- have done so, ‘manifestly wrong’, ‘funda- cisis originated in medieval England63 and mentally wrong’ or ‘plainly erroneous’72. was developed further during the eight- As we saw in the discussion of Engineers eenth century, when William Blackstone above, the majority and joint majority stated, ‘it is an established rule to abide by made statements like these. For example, former precedents, where the same points Higgins J stated: ‘I fully accept the view that come again in litigation’, and in the nine- it is fitting stare decisis unless the decision, teenth century64. In an American context, to our minds, is manifestly wrong’73. The its importance was even noted by Alexan- joint majority provided another justifica-
75 Directions tion for overruling the implied intergov- Our sworn loyalty is to the law itself, and to the ernmental immunities and reserved pow- organic law of the Constitution first of all. If, then, we find the law to be plainly in conflict with ers doctrines, asserting that, ‘the utmost what we or any of our predecessors erroneously confusion and uncertainty exist as the de- thought it to be, we have, as I conceive, no right cisions now stand’74. to choose between giving effect to the law, and However, as Boeddu and Haigh sug- maintaining an incorrect interpretation. It is gest, the very nature of constitutional de- not, in my opinion, better that the Court should be persistently wrong than it should be ultimate- cision-making, including the very serious ly right78. effects of overturning precedent, and the fact that a decision of the High Court cannot Given Isaacs J’s leading role in the fun- be overruled or corrected by Parliament, damental departure from precedent in suggest that Justices in constitutional cas- the majority’s decision in Engineers, these es should be reluctant to overrule previous comments are quite appropriate and show constitutional precedent75. In this con- a marked determination to pursue his own text, the decision in Engineers can be seen interpretive agenda. Perhaps these com- as somewhat radical and activist in nature ments can be attributable to the fact that because it was a complete reversal from the doctrine of stare decisis is a ‘self im- precedent. posed legal duty’79 that is viewed as a policy The ‘diametrically opposed approaches’ or guideline80, rather than a binding inter- in the attitude of the High Court to the is- pretive method. sue of overruling precedent are also high- In fact, Craven has openly accused lighted by Moens and Trone76. Moens and the High Court of deliberately pursuing Trone cite Gibbs J in Queensland v Common- a centralist agenda, and in fact, of a ‘cen- wealth, who espoused a cautious approach tralist revolution’ by its furtherance of En- to overruling precedent: gineers-inspired literalism81. Craven sug- gests that the easiest way to make sense of No Justice is entitled to ignore the decisions and reasoning of his predecessors, and to arrive at the demise of the federal balance is to view his own judgment as though the pages of the law the High Court as a political, rather than reports were blank, or as though the authority an impartial institution. It was perhaps the of a decision did not survive beyond the rising self-assuredness of the correctness of the of the Court […] It is only after the most careful majority judgments in Engineers, and the and respectful consideration of the earlier deci- sion, and after giving due weight to all the cir- fact that Isaacs and Higgins JJ remained on cumstances, that a Justice may give effect to his the bench until 1931 and 1929 respective- own opinion in preference to an earlier decision ly (some eleven and nine years after Engi- 77 of the Court . neers), that they were able to consolidate their centralist agenda, helping to ensure In contrast, Moens and Trone cite Isaacs that Engineers became binding precedent, J in Australian Agricultural Co Ltd v Federated and not simply a mistaken departure from Engine Drivers and Firemen’s Association of established precedent that would have been Australasia, as an example of the readiness corrected in subsequent decisions. of some Justices to depart from established The increased centralist agenda of the precedent: High Court may also have been encouraged
76 Evans by changing social and political conditions 4. Conclusion and their own growing sense of nationalism after the First World War82. To expand on Whatever the reasons behind the centralist the possible motivations for this central- agenda of the High Court in Engineers, it be- ist agenda, Walker’s comments about the came binding precedent from which Justic- possible sources of centralist ideology are es in subsequent judgments were unwilling relevant. Walker stated the first of these to to depart. Subsequently, Engineers provided be the anti-federalist writings from com- the justification for the pursuit of a central- munists such as Marx, Lenin and Harold ist agenda that has continued up until the Laski. According to Walker, Marx, who present time. In fact, Craven has described disproved of federal constitutions and ap- the success of the Commonwealth in these proved of large unitary governments, be- decisions as one which ‘must rival any win- came well-regarded in ‘Australian intellec- loss ratio in the history of either profes- tual circles’83. Secondly, Walker noted the sional sport or dubious umpiring’88. These importance of the work of A V Dicey who ‘legal triumphs’ include the expansion of advocated the plenary power of the uni- Commonwealth financial powers through a tary British Parliament and was a ‘violent broad definition of duties of excise and the opponent of federalism’84. He stated that expansion of Commonwealth legislative Dicey’s ‘anti-federalist message was taught powers such as the corporations power and to generations of Australian law students the external affairs power. The High Court’s with no pro-federalist material to balance interpretation of the Constitution, post-En- it’85. Walker noted that this was coupled gineers, has resulted in the federal balance with Australia being allied with Britain in of power between the Commonwealth and the First World War, whose government was the states being displaced to such an extent presented as the ‘ideal’86. Thirdly, with the that Australia’s system of government can effect of the world becoming ‘smaller’ due no longer be described as truly federal. to the advent of new technologies and glo- balisation, there was a growing perception that power could be more efficiently con- centrated in a centralised government87.
1 Commonwealth of Australia powers and vertical fiscal legislation was Federated Constitution Act 1900 (UK) imbalance, see A. Fenna, Amalgamated Government Railway (‘Constitution’). Australian Public Policy (2nd ed.), & Tramway Service Association v 2 G. Craven, The High Court of Pearson Longman, 2004, pp. New South Wales Railway Traffic Australia: A Study in the Abuse of 171-175. Employees Association (‘Railway Power, in «University of New 4 The first case to recognise Servants’ case’) (1906) 4 CLR 488. South Wales Law Journal», vol. Commonwealth immunity from 5 See, for example, Peterswald 22, 1999, p. 222. state legislation was D’Emden v Bartley (‘Peterswald’) (1904) 3 For an overview of the evolution v Pedder (1904) 1 CLR 91 and 1 CLR 497; R and the Minister of federalism in Australia, the the first case to recognise state of State for the Commonwealth centralisation of legislative immunity from Commonwealth Administering the Customs v Barger;
77 Directions
The Commonwealth and AW Smart, Starke JJ. 155, per Knox CJ, Isaacs, Rich and Collector of Customs v McKay (‘R 22 Engineers (1920) 28 CLR 129, pp. Starke JJ. v Barger’) (1908) 6 CLR 41; and 162-163, per Higgins J. 46 Ivi, pp. 154-155. Huddart, Parker & Co v Moorehead 23 Engineers (1920) 28 CLR 129, p. 47 Ivi, p. 155. (‘Huddart’) (1909) 8 CLR 330. 171, per Higgins J. 48 Ivi, p. 154. 6 G. Sawer, Australian Federalism 24 Engineers (1920) 28 CLR 129, p. 49 Ivi, p. 155. in the Courts, Melbourne, 154, per Knox CJ, Isaacs, Rich and 50 K. Booker and A. Glass, The Melbourne University Press, Starke JJ. Engineers Case’ in Lee and 1967, p. 130. 25 S. Gageler, Foundations of Winterton (edited by), Australian 7 A recent example of the centralist Australian Federalism and the Role Constitutional Landmarks cit., p. ramifications of Engineers was of Judicial Review, in «Federal Law 41. Work Choices (2006) 229 CLR Review», vol. 17, 1987, p. 178. 51 Engineers (1920) 28 CLR 129, p. 1 where the majority used 26 Ivi, pp. 219-220. 174, per Gavan Duffy J. an Engineers based literalist 27 Ivi, p. 222. 52 Prior to federation, the states approach. 28 G. de Q Walker, The Seven Pillars of were known as ‘colonies’. 8 This section provided that if a Centralism: Federalism and the En- 53 Engineers (1920) 28 CLR 129, p. case involved matters arising gineers’ Case, in «The Australian 174, per Gavan Duffy J. from the constitution or Law Journal», vol. 76, 2002, p. 54 Ivi, pp. 173-174, per Gavan Duffy involving its interpretation it 684. J. could be remitted to the High 29 Ivi, p. 688. 55 Walker, The Seven Pillars of Court for consideration. 30 Ivi, p. 689. Centralism: Federalism and the En- 9 J. Douglas, Sir Charles Powers: 31 G. Craven, The Engineers gineers’ Case cit., p. 678. His Contribution to the High Case: Time for a Change? 56 Ivi, p. 682 (no source cited for Dr Court. Paper presented at the Paper presented at the Eighth Hughes). Supreme Court of Queensland Conference of the Samuel 57 Ivi, p. 682. Library Conference, 29 March Griffith Society, University 58 L.A. Kornhauser, An Economic 2003, p. 16, at
78 Evans
Precedent During the Nineteenth 178 CLR 561, pp. 592-593, cited 80 M.S. Paulsen, Does the Supreme Century, in L. Goldstein (edited in Moens and Trone, Lumb Court’s Current Doctrine of Stare by), Precedent in Law, Oxford, and Moens’ The Constitution of Decisis Require Adherence to the Clarenden Press, 1987, p. 35. the Commonwealth of Australia Supreme Court’s Current Doctrine of 65 Kuo and Wang, When is an Annotated cit., p. 34. Stare Decisis?, in «North Carolina Innovation in Order?: Justice Bader 72 M. Kirby, Precedent Law, Law Review», vol. 86, 2008, p. Ruth Ginsberg and Stare Decisis Practice and Trends in Australia, 1170. cit., p. 839. in «Australian Bar Review», 81 G. Craven, The High Court of 66 Duxbury, The Nature and Authority vol. 28, 2007, p. 247. See also Australia: A Study in the Abuse of of Precedent cit., p. 12. Springall, Stare Decisis as Applied Power, in «University of New 67 The full latin maxim has been by the High Court in its Previous South Wales Law Journal», vol. translated as, ‘stare decisis et Decisions cit., p, 483. 22, n.1, 1999, p. 223. non quieta movere’ translated 73 Engineers (1920) 28 CLR 129, p. 82 J. Goldsworthy, Justice Windeyer as ‘stand by the thing decided 170, per Higgins J. on the Engineers’ Case, in «Federal and do not disturb the calm’: 74 Engineers (1920) 28 CLR 129, p. Law Review», vol. 37, 2009, pp. See G. Boeddu and R. Haigh, 159, per Knox CJ, Isaacs, Rich, 363-365; H. Patapan, Politics of Terms of Convenience: Examining Starke JJ. Interpretation, in «Sydney Law Constitutional Overrulings by the 75 Boeddu and Haigh, Terms Review», vol. 2, 2000, p. 253. High Court, in «Federal Law of Convenience: Examining 83 Walker, The Seven Pillars of Review», vol. 31, 2003, p. 167. Constitutional Overrulings by the Centralism: Federalism and the En- Duxbury translates the maxim as, High Court cit., pp. 167-168. gineers’ Case cit., p. 684. ‘abide by earlier decisions and 76 Moens and Trone, Lumb and 84 Ivi, p. 685. do not disturb settled points’: Moens’ The Constitution of the 85 Ivi. Duxbury, The Nature and Authority Commonwealth of Australia 86 Ivi. of Precedent cit., p. 12. Annotated cit., p. 28. 87 Ivi. 68 R.C. Springall, Stare Decisis as 77 Queensland v Commonwealth 88 G. Craven, Conversations with the Applied by the High Court to its (1977) 139 CLR 585, p. 599, per Constitution: Not Just a Piece of Previous Decisions, in «Federal Gibbs J, cited in Moens and Paper, Sydney, University of New Law Review», vol. 9, 1978, pp. Trone, Lumb and Moens’ The South Wales Press, 2004, p. 78. 488-489. Constitution of the Commonwealth 69 Kirby, Precedent Law, Practice and of Australia Annotated cit., p. 28. Trends in Australia cit., p. 247. 78 Australian Agricultural Co 70 Nguyen v Nguyen (1990) 169 CLR Ltd v Federated Engine Drivers 245, 269 cited in G.A. Moens and and Firemen’s Association of J. Trone, Lumb and Moens’ The Australasia (1913) 17 CLR 261, p. Constitution of the Commonwealth 278, per Isaacs J, cited in Moens of Australia Annotated (7th ed.), and Trone, Lumb and Moens’ The Sydney, LexisNexis Butterworths, Constitution of the Commonwealth 2007, p. 34. of Australia Annotated cit., p. 28. 71 Capital Duplicators Pty Ltd v 79 J. Hardisty, Reflections on Australian Capital Territory [No Stare Decisis, in «Indiana Law 2] (‘Capital Duplicators’) (1993) Journal», vol. 55, 1979, p. 48.
79
The Power of the Purse: An Examination of Fiscal Federalism in Australia
lorraine finlay
In 1901 the people of six self-governing The advantages of a federal system, such Crown Colonies “agreed to unite in one in- as the one created in the Australian Consti- dissoluble Federal Commonwealth”, to be tution, are well known3. It is designed to be known as the Commonwealth of Australia. a system that “controls power, safeguards The drafters of the Australian Constitution democracy, and promotes liberty”4. In a established a federal structure to divide federation, compared to a unitary system of power between the federal and State levels government5: of government. This federal balance “is not to be maintained as a matter of political or government is more adaptable to the preferenc- es of the people, more open to experiment and social preference, but as a matter of consti- its rational evaluation, more resistant to shock 1 tutional imperative” . When considering and misadventure, and more stable. Its decen- the federal balance today it is important to tralized, participatory structure is a buttress remember that while the Founding Fathers of liberty and a counterweight to elitism […] created a Commonwealth government they Through greater ease of monitoring and the ac- tion of competition, it makes government less of still intended for the State governments to a burden on the people. It is desirable in a small continue operating as independent consti- country and indispensable in a large one. tutional entities and not merely as branch offices of the central government. This is These benefits are not purely structural, apparent in the assertion by Deakin at the with a well designed federal system of gov- 1897 Adelaide Convention that delegates ernment also resulting in direct economic should remember that “the States are only benefits. In Australia, the ‘federalism divi- parting with a small part of their powers dend’ (being the specific economic advan- of self-government, and that the Federal tage achieved through the federal struc- Government has but a strictly defined and ture) was estimated to be approximately limited sphere of action”2. $4,507 per capita in 20066. Across the giornale di storia costituzionale / journal of constitutional history 24 / II 2012 81 Directions world the modern trend is strongly towards ly highlight a number of possible reforms federalism, with a federal constitutional that, if introduced, would go some way to structure being regarded internationally restoring the fiscal position of the States as a structure that “enables a nation to have relative to the Commonwealth government. the best of both worlds, those of shared rule and self-rule, co-ordinated national gov- ernment and diversity, creative experiment 7 and liberty” . Fiscal Federalism at the time of Federation Whilst the international trend has been firmly in the direction of federalism, the The question of finances was a conten- opposite has been the case in Australia. tious one at the time of the drafting of the Since federation the Australian federal sys- Constitution and threatened on more than tem has grown progressively weaker, with one occasion to derail the entire process of the powers and reach of the Commonwealth federation. So controversial was it that one government continuing to expand. No- delegate said at the time of the 1897 Sydney where is this more evident than in the area Convention12: of fiscal federalism, with Australia’s sys- tems of intergovernmental fiscal relations No human being – I do not believe even an arch- performing comparatively poorly by inter- angel from heaven – could at this moment intro- national standards8. The result has been duce into the constitution which it is our mission to frame a provision which would do justice all the transformation of the States over the round upon the financial question. past century from financially independent colonies to “institutionalized beggars”9 de- Ensuring the continued independence pendent on Commonwealth hand-outs and of the States was seen as an important con- “impotent debating societies”10. The fiscal sideration at the time, with financial inde- dominance of the Commonwealth Gov- pendence being recognized as an important ernment has important implications for element of this. As was noted by Barton the federal balance as “[w]ith fiscal power during the Sydney Australasian Conven- comes policy power […] Thus fiscal dom- tion13: inance within a federal system brings with it the ability to skew the federal balance”11. we cannot do away with the solvency of the several States. If we do that those States die, and we have This paper will trace the growing fi- no longer a federation but a legislative union. nancial dominance of the Commonwealth government over the past century and its The debate concerning the financial implications for the federal balance in Aus- provisions of the Commonwealth Consti- tralia. It will argue that such an economical- tution has been described as “the hardest ly dominant central government was never nut to crack”, and as creating divisions that intended by the Founding Fathers, and in- “were deeper and more serious than those deed that it undermines many of the pro- caused by any other issue”14. In particular, tections they sought to establish through colonies that had protectionist economic the adoption of a federal structure in the policies and who derived much of their in- Constitution. Finally, it will go on to brief- come from inter-colonial tariffs were con-
82 Finlay cerned about the economic consequences in cases of emergency”20. The clause itself of federation and the creation of a ‘free was a compromise inserted by the Premiers trade zone’ within the new Commonwealth. Conference following the failure of the first One such example was Western Australia, constitutional referendum in New South a late and reluctant entrant into the Com- Wales, and “most of the Premiers assumed monwealth who derived half of its revenues that the grants power would be terminated from customs duties and expressed con- as soon as the States’ financial arrange- cern “that their economy would be crippled ments were adjusted to the uniform tariff for the benefit of continental neighbours scheme and as soon as the operation of the with whom they had little affinity”15. The Braddon clause was itself terminated”21. insertion of special five-year transitional Many of the early debates concerning arrangements for Western Australia under the financial provisions of the Constitution s. 95 of the Constitution was one way of try- centred around the question of transferring ing to address some of these concerns. what were expected to be the surplus reve- On the revenue side it was agreed that nues from the Commonwealth back to the the Commonwealth would have the exclu- various States. A number of complicated sive power to impose customs and excise formulas were considered and, interest- duties (s. 90), which was at the time the ingly in light of the current debate about primary source of revenue for the colo- the existing Commonwealth Grants Com- nies, averaging three-quarters of colonial mission formula, the Finance Committee revenues16. The Commonwealth was also Report of 1897 recommended that after a granted a general taxation power to operate five year transitional period “all future sur- concurrently with State taxation powers (s. pluses should be distributed to the several 51(ii)), although not all delegates foresaw States on a per capita basis”22. By the time the Commonwealth needing to levy taxes of the final document this formulation had beyond customs and excise duties with, for been abandoned, with the adoption instead example, McMillan commenting that “they of a provision providing for the Parliament will never go beyond Customs; nobody to distribute surplus Commonwealth reve- dreams of such a thing”17. nue “on such basis as it deems fair”23 after Another key provision was the power of the expiry of a five year transition period. the Commonwealth under s. 96 to “grant Despite the framers seeking to ensure financial assistance to any State on such a federal balance in the Constitution, the terms and conditions as the Parliament financial provisions that were ultimately thinks fit”. This was never intended to be an adopted “gave the whip hand to the Com- expansive power, but rather a safeguard to monwealth”24. Alfred Deakin propheti- be invoked only in the exceptional situation cally foresaw that the Constitution would of a State being “threatened with a financial leave the States “legally free, but financially shipwreck”18. It was described at the time bound to the chariot wheels of the central as “a guarantee to the public with regard to Government”25. This is borne out when dangers that are never likely to happen”19 examining the evolution of fiscal federal- and as a power that was “not intended to ism in Australia, with the Commonwealth be used, and ought not to be used, except continuously extending its financial reach
83 Directions over the past century while the financial In 1908 the Commonwealth passed leg- independence of the States becomes ever islation that diverted surplus revenue into more precarious. The end result, according trust funds, with the result that there was no to Professor Greg Craven, is that26: surplus revenue remaining to be distribut- ed under s. 94. The High Court upheld the even within some of their acknowledged areas of power, the states are no longer masters of their constitutional validity of this legislation in own destiny. the Surplus Revenue Case, holding that the diverted money had been duly appropriated and was no longer surplus revenue for the purposes of s. 94. An increasingly centralized fiscal landscape Federal taxation powers have also ex- panded to the point today where income tax It did not take long for the federal balance is levied exclusively by the Commonwealth that had been carefully constructed by the government. Although the Commonwealth Founding Fathers to begin shifting deci- was given the power to make laws with re- sively towards the Commonwealth, aided by spect to taxation under s. 51(ii) of the Con- a series of key constitutional decisions by stitution, this was a power to be exercised the High Court of Australia. Among the key concurrently with the States and the States features that have contributed to this in- initially continued to levy their own income creasingly centralized fiscal landscape are taxes. The Commonwealth first introduced the takeover of income taxes by the Com- concurrent personal income taxes in 1915, monwealth government, the broad read- and went one step further during World War ing that has been given to the excise duties II when it introduced a uniform income power under s. 90, and the expansive inter- tax scheme that effectively took over all pretation of the grants powers under s. 96. income tax collection from the States. The The combined effect has been to “have left Commonwealth initially asked the States to financial resources and power dispropor- cease levying income tax for the duration of tionately in the hands of the Common- the war, and offered financial compensa- wealth’27. tion if they did so. When the States refused An early example of the Commonwealth the Commonwealth proceeded in 1942 by deliberately circumventing the federal bal- way of legislation, with a series of four Acts ance envisaged by the drafters of the Con- that imposed a Commonwealth income tax stitution, and the assistance that would be at a level approximately equal to the com- provided to them in these attempts by the bined total of the previous Commonwealth High Court of Australia, can be seen in the and State income taxes, gave legislative Surplus Revenue Case28. This case concerned priority to the payment of Commonwealth s. 94 of the Constitution, which provides: income tax over any State income taxes, provided financial grants to the States con- After five years from the imposition of uniform ditional upon them not imposing income duties of customs, the Parliament may provide, on such basis as it deems fair, for the monthly taxes, and transferred State resources used payment to the several States of all surplus reve- in the collection of income taxes to the nue of the Commonwealth. Commonwealth29. This scheme was upheld
84 Finlay by the High Court of Australia in the First Uniform Tax Case30. As Professor Greg Cra- ven noted31:
If the Surplus Revenue Case sounded a shrill warn- ing note for the States, the First Uniform Tax Case in 1942 set their financial death knell in earnest.
At the conclusion of the war the con- tinuation of this scheme was unanimously opposed by the State Premiers. The Chi- fley Government nevertheless decided to continue the scheme over these objections, and its peacetime continuation was subse- quently largely validated (with some excep- tions) by the High Court in the Second Uni- form Tax Case32. As Brian Dollery noted33:
The effects of the uniform taxation scheme were profound. By the fiscal year 1948/49, the Com- monwealth was collecting 88 per cent of all taxes levied in Australia, compared to 8 per cent by the Alfred Deakin (1856-1919): Australian politician, states and 4 per cent by local governments. was a leader of the movement for Australian federa- tion and later the second Prime Minister of Australia. The States therefore find themselves in (Photo from Wikipedia) a position today where they are effectively unable to raise their own income taxes, and are realistically unable to raise anywhere The High Court has also reinforced the near the revenue that they need to fund financial dominance of the Commonwealth their areas of responsibility. The result is through its expansive interpretation of the a “steady decline in the revenue raising Commonwealth’s exclusive power to im- powers of the States”34 and a level of ver- tical fiscal imbalance that is “among the pose customs and excise duties under s. highest of any federation”35. The impact on 90 of the Constitution. Although a relatively the overall fiscal balance and the financial narrow interpretation of excise duties was independence of the States was not an en- adopted in the early case of Peterswald v Bart- 37 tirely unintended result. At the time of the ley , subsequent cases have significantly uniform income tax scheme being intro- expanded the scope of s. 90. For example, duced by the Labor Government, Minister in Commonwealth v South Australia Rich J Arthur Calwell predicted “the slow strangu- criticized the narrow approach in Peter- lation of the States” noting that “[…] if they swald and interpreted s. 90 as granting the lose their right to impose income tax, they Commonwealth exclusive power “[…] over will become mendicants existing upon the all indirect taxation imposed immediately bounty of the Commonwealth”36. upon or in respect of goods”38. Similarly in Matthews v Chicory Marketing Board Dixon J
85 Directions defined an excise duty as “a tax on or con- intentions of the drafters of the Consti- nected with commodities”39 and in Parton v tution. This observation was made by Neil Milk Board (Vic) he held that the intention of Warren46: s. 90 had been to give the Commonwealth An examination of the historic record shows that “real control of the taxation of commodities in fact the rationale for s. 90 was to avoid the im- and to ensure that the execution of whatever position of discriminatory tariffs between States policy is adopted should not be hampered and hence facilitate free trade. This has led to the or defeated by State action”40. In Hematite argument that the High Court’s interpretation of Petroleum Pty Ltd v Victoria41 the High Court s. 90 is not only economically and financially un- sound, it is in conflict with the intentions of the ruled that excise duties not only encom- founders of the federation. passed taxes on the production of goods, but also extended to include any tax on the The High Court’s expansionist approach distribution or sale of goods. to the interpretation of s. 90 has had signif- For a number of years the States were icant consequences for the fiscal balance able to continue obtaining significant rev- in Australia. As noted by Professor Colin enue through the imposition of “business Howard47: franchise fees” on petroleum products, to- bacco and alcohol. This ended however with The definition of excise duty cannot be counted among the High Court’s successes. No escape the majority decision of the High Court in from the morass of judicial disagreement now 42 Ha v New South Wales when it struck down seems possible by curial action alone. The main these fees, and unexpectedly removed an consequences have been lasting uncertainty, and important source of revenue for State gov- consequential litigation, in a significant area of ernments. This left a considerable finan- liability to taxation and now a severe and unnec- essary restriction on the taxation revenue of the cial hole in State budgets, with the State States […] The case law on s. 90 suggests that the governments raising just under $5 billion High Court is by and large unsympathetic to State (or one-sixth of their total taxation reve- revenue and expenditure problems in general. nue) from these business franchise fees in 1995-199643. In response to this judgment The third constitutional provision the Commonwealth introduced a rescue which has helped to entrench an unequal package of revenue replacement payments, financial relationship between the Com- however the effect of these measures was monwealth and State governments is s. 96 to further entrench State reliance on Com- which provides that: monwealth funding. The decision in Ha During a period of ten years after the establish- (which was decided by a 4:3 majority) has ment of the Commonwealth and thereafter until been described as “perhaps the most sig- the Parliament otherwise provides, the Parlia- nificant for Federal-State financial rela- ment may grant financial assistance to any State on such terms and conditions as the Parliament tions since the First Uniform Tax Case of thinks fit. 1942”44 and as a decision that will “further marginalize the States within the Australian This provides the Commonwealth with Federal system”45. “considerable leverage over State policies It is arguable that the broad interpre- and actions”48. Over time specific purpose tation of s. 90 is at odds with the original payments (“SPPs”) made by the Common-
86 Finlay wealth to State governments under s. 96 of admit of any attempt to influence the direction of the Constitution have become49: the exercise by the State of its legislative or exec- utive powers. It may well be that s. 96 was con- a major, and flexible, instrument for enlarging ceived by the framers as (1) a transitional power, the boundaries of Commonwealth action; or, to (2) confined to supplementing the resources of use realistic terms, Commonwealth power. the Treasury of a State by particular subventions when some special or particular need or occa- While grants made by the Common- sion arose, and (3) imposing terms or conditions wealth government to the States were in- relevant to the situation which called for special itially made “largely on an ad hoc and un- relief or assistance from the Commonwealth. 50 It seems a not improbable supposition that the conditional basis” this changed with the framers had some such conception of the pur- Federal Aid Roads Act 1926 (Cth) where the pose of the power. But the course of judicial de- Commonwealth Government attempted to cision has put such limited interpretation of s. 96 make s. 96 grants to the States contingent on out of consideration. the money being spent on the construction The Commonwealth began to use s. of roads nominated by the Commonwealth. 51 96 grants more extensively from the early In Victoria v Commonwealth the High Court 1950s and by the end of the Whitlam gov- upheld this legislative approach, rejecting ernment in 1975 SPPs accounted for 57% the argument that any conditions attached of all Commonwealth grants55. By 2006-07 to grants made under s. 96 were limited to there were56: the exercise of legislative powers provided for under s. 51 of the Constitution. As a re- at least 90 distinct SPP programs providing $28 sult of this decision the Commonwealth is billion to the States or directly to non-government schools and local governments. SPPs account for effectively empowered to make s. 96 grants 42 per cent of total payments made by the Com- conditional on virtually any terms and con- monwealth to the States. The requirements in ditions that it sees fit52. The conditions im- many SPPs that States match funding and main- posed by the Commonwealth do not need tain existing efforts mean that up to 33 per cent of to be conditions that themselves fall within State budget outlays can be effectively controlled by SPPs, reducing State budget flexibility. the constitutional reach of the Common- wealth, with the result that s. 96 allows the There has been significant reform of Commonwealth to insert itself into policy SPP arrangements in recent years. A ra- areas that were never designed to fall within tionalized SPP framework commencing op- its domain. eration on 1 January 2009, being designed The expansive approach adopted in Vic- to provide States with greater flexibility and toria v The Commonwealth was subsequently discretion in the way that they spend the questioned by Dixon CJ in Second Uniform funds allocated to them. It has been sug- Tax Case53. The Chief Justice suggested that, gested that these reforms “in retrospect, but for the weight of existing legal precedent, represented the high point of cooperative he might have taken a narrower approach to federalism under Kevin Rudd”57. However, the interpretation of s. 96 such that54: the overall conditional funding provided the true scope and purpose of the power which s. to the States for specific purposes remains 96 confers upon the Parliament of granting mon- significant, with an estimated $50.1 billion ey and imposing terms and conditions did not being allocated in 2009-10, which equates
87 Directions to 14.8 per cent of total Commonwealth ex- become increasingly reliant on Common- penditure58. Furthermore, while the SPP wealth grants to make up this shortfall. This framework has been consolidated the sys- has a number of damaging consequences. tem of tied grants continues with the intro- Most importantly, State government re- duction of National Partnership Payments, liance on Commonwealth funding allows being highly conditional payments to the the Commonwealth government to as- States totaling $19 billion by 2010-11. Un- sert “financial and policy control over the der this new payment stream “the Com- States”63 and has given the Commonwealth monwealth remained free to engage in the government the opportunity to enter into kind of selective and coercive intervention policy areas that have traditionally been the 59 it had traditionally applied via SPPs” . exclusive domain of the States. The 1999 Intergovernmental Agreement on the Reform of the Commonwealth-State Financial Relations represented an attempt The current fiscal imbalance partially address and reduce VFI. The Com- monwealth government agreed to allocate The stark turn-around in the relative fi- GST revenues to the States, which was in- nancial positions of the States vis-à-vis the tended to give the States access to a growth Commonwealth can be seen by examining tax. This has, however, arguably actually their changing share of revenue and ex- worsened the situation, with the States be- penditure over the past century. Immedi- ing required as part of this arrangement to ately following Federation State and local abolish a number of their existing taxes and governments raised 87% of total taxation becoming even more reliant upon the Com- revenues, whilst the Commonwealth col- monwealth. As was noted by Neil Warren64: lected only 13%. A century later this sit- uation had almost entirely reversed, with The GST has only replaced one form of general revenue assistance with another. The GST is not the Commonwealth collecting 82% of total a shared tax base, but is the base for calculating taxation revenues in 2004-05 and State and general revenue grants to the States. The States local governments collecting only 18%60. have no ability to alter either the GST rate or its In the 2011-12 federal budget grants to State base. Furthermore, GST revenue grants are sub- Governments are estimated to amount to ject to high level equalization and are therefore not distributed among the States according to $95 billion, which represents approxi- where the revenue is raised, resulting in a large 61 mately 50% of total State revenue . redistribution between States. The Australian federation today is characterized by comparatively high levels Western Australian in particular has of vertical fiscal imbalance (‘VFI’), with been increasingly critical of horizontal Twomey and Withers suggesting that the fiscal equalization arrangements that have extent of VFI in Australia “is the most ex- seen its share of GST funding drop from treme of any federation in the industrial 72 cents in the dollar in 2011-12 to 55 cents world”62. The revenue raising powers of the in the dollar in 2012-13, with projections State governments no longer match their that it will continue to drop to 25 cents in expenditure responsibilities, and they have the dollar by 2015-1665. The most recent
88 Finlay recommendation by the Commonwealth sy. The 2020 Summit identified the crea- Grants Commission would result in West- tion of a “modern federation” as one of its ern Australia’s share of GST funding falling “priority themes” and one of its proposed by $598 million in 2012-13, which was de- goals was to “reinvigorate the federation to scribed by the WA Treasurer as “a slap in the enhance Australian democracy”68. This was face for all Western Australians”66. The WA followed by the creation of the Senate Select government has argued that such signifi- Committee on the Reform of the Australian cant cuts to its funding “severely constrain Federation in June 2010 which was charged the state government’s ability to continue with inquiring into “key issues and priori- investing in the infrastructure and services ties for the reform of relations between the needed to grow WA’s resource sector, which three levels of government within the Aus- is propping up the national economy”67. It tralian federation” and exploring “a pos- is the WA government that has been the sible agenda for national reform”69. The most vocal in arguing for reform of the Committee reported to the Australian Sen- GST funding arrangements, suggesting in ate on 30 June 2011, presenting twenty-one particular that a ‘floor’ should be imposed recommendations for reform. on the GST equalization formula so that a All too often, however, discussions States’ share of GST revenues cannot fall about reinvigorating or reforming the Aus- below a minimum return of 75 cents in the tralian federation are really discussions dollar. about shifting State responsibilities into Partly as a result of the political con- the Commonwealth sphere and the further troversy generated in Western Australia by centralization of power. This has certain- the reduction in its share of GST funding, a ly been the case in recent years, with the review into GST distribution arrangements Commonwealth government continuing to was announced in early 2011. An interim move into traditional areas of State respon- report was released on 23 April 2012 and sibility. Two controversial recent examples a final report is due to be given to Parlia- include the use of an expanded corpora- ment before the end of the year. Although tions power to create a national industrial the establishment of the review committee relations system (which was upheld by the is a positive step forward in acknowledging High Court in the Work Choices Case70) and the need for reforms to strengthen fiscal the proposed “claw-back” of a third of GST federalism in Australia it is notable that the payments to fund national health reforms. review committee does not include a rep- The Commonwealth government tends to resentative from Western Australia. While justify such policy expansions by pointing the interim report has acknowledged the to underperforming State governments need for reform it has rejected the above that they claim are failing to fulfil their re- argument by Western Australia that a ‘floor’ sponsibilities in these areas of public poli- should be applied to the GST equalization cy. However, as Twomey and Withers have formula. observed71: The state of the Australian federation It is disingenuous to suggest that the States are has emerged in recent years as a topic of failing in their responsibilities because they some political significance and controver- require Commonwealth funding and that the
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Commonwealth should therefore take over State has significant implications for Australia. policy functions, when this is the system that the Neil Warren argues that “Australia per- Commonwealth deliberately created. forms comparatively poorly in internation- On the revenue side the Commonwealth al comparisons of intergovernmental fiscal 75 government has also been aggressive in re- arrangements” and notes that “National cent years in attempting to increase its rev- and State governments in Australia have enue share. One example of this has been not had a serious discussion between the different tiers of government since prior to the introduction of the Minerals Resource 76 Rent Tax on 1 July 2012, which is a tax to be federation in 1901” . The Business Coun- imposed on the profits generated from the cil of Australia considers this to be an issue mining of iron ore and coal. The new tax is that Australia needs to address as a priority, noting that: designed to ultimately replace State roy- alties, which would seemingly exacerbate [t]he extent of the problems and dysfunctions of VFI by further expanding the revenue base the current system of federal-state relations[…] of the Commonwealth at the expense of the is such that it has become a major barrier to fu- ture prosperity. The challenge of reforming fed- States. Western Australia, in particular, has eralism has now become an economic impera- been a vocal critic of the tax, with the West- tive. ern Australian Department of Treasury and Finance stating that the mining tax regime There have been a number of reforms is viewed within WA “as an unwelcome in- that have been proposed as measures that trusion into an area of state government could be instituted to redress the fiscal responsibility, undermining the state’s imbalance currently characterizing the autonomy and budget flexibility”72. The tax Australian federation. On the revenue side has been called “an attack on Western Aus- there is no constitutional impediment to tralia”73 on the basis of estimates that $7 the States reintroducing their own per- sonal income taxes, although there would billion of the expected $10.5 billion raised certainly be significant political hurdles to from the tax in 2012-2014 will come from be overcome. Another reform that would WA74. It is currently being challenged in reduce VFI and increase the financial in- the High Court, with the Fortescue Metals dependence of the States would be the in- Group and Queensland arguing that the troduction of a formal tax-sharing arrange- legislation invalidly discriminates against ment between the Commonwealth and the States and is therefore constitutionally in- States, guaranteeing the States a certain valid. percentage of Commonwealth tax revenue. Such an arrangement would not only re- duce VFI but would provide all States with a direct economic interest in the financial Reforming Australian fiscal federalism success of the entire federation, introduce greater certainty and transparency into fi- The growing financial dominance of the nancial transfers from the Commonwealth Commonwealth government and the in- to the States, and would likely reduce State creasing financial dependence of the States reliance on specific purpose payments.
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In relation to the distribution of GST into their traditional policy areas. At the revenue there is an urgent need for re- same time, given that the Constitution is form, with growing anger particularly in now over one hundred years old, there is Western Australia over what are perceived merit in the suggestion that it may be bene- to be serious inequities enshrined within ficial to revisit the distribution of constitu- the existing arrangements. The establish- tional powers and responsibilities between ment of the current GST review committee that national and state levels of government is a positive step, although it remains to be at a constitutional convention to ensure seen precisely what recommendations are greater clarity and to better reflect modern put forward by the committee. While there conditions. is disagreement about whether the current equalization formula should be amended to insert a ‘floor’ into the allocation of GST revenues to the States there does appear Conclusion to be general agreement that the existing formula is overly complicated, and would Since Federation the Commonwealth gov- benefit from reforms that would introduce ernment has continued to expand well greater certainty and transparency to the beyond the intentions of the Founding Fa- transfer process. thers, and the Australian federal system On the expenditure side the key issue “has not always been as coherent or effective from the States perspective is the contin- as the framers might have hoped”77. The fi- ued entry by the Commonwealth into policy nancial dominance of the Commonwealth areas that have traditionally been the do- government, and the increased reliance of main of the States. In many respects this is the State governments on Commonwealth an inevitable result of the financial domi- funding, has significant implications for nance of the Commonwealth, which has be- the federal balance in Australia. Reforming come adept at using its financial muscle to fiscal federalism in Australia, with the aim impose itself across a range of policy areas of restoring the fiscal position of the States far removed from the limited enumerated relative to the Commonwealth government, powers provided for under s. 51 of the Con- is an important goal if Australia is to protect stitution. Addressing the fiscal imbalance the independent status of our State govern- described above and strengthening the fi- ments and to fully realize the benefits that a nancial independence of the States would true federal structure is intended to bring. provide the States with a greater ability to resist further Commonwealth intrusion
1 New South Wales v Commonwealth Australasian Convention Debates, Proposal for Strengthening the Aus- (2006) 229 CLR 1, p. 796, per Adelaide, 1897, p. 292. tralian Federation, in «Monash Callinan J. 3 See A. Zimmermann and L. University Law Review», vol. 37, 2 Official Report of the National Finlay, Reforming Federalism: A n. 2, 2011, pp. 194-199.
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4 A. Zimmermann and L. Finlay, eral Finance, in «Australian Eco- fith Society, 1995. Submission to the Select Committee nomic History Review», vol. 42, 32 Victoria v Commonwealth (1957) on the Reform of the Australian Fed- n. 3, 2002, p. 288. 99 CLR 575. eration (20 August 2010). 17 Craven, The Convention Debates 33 B. Dollery, One Hundred Years of 5 G. de Q. Walker, Ten Advantages of 1891-1898: Commentaries, Indices Vertical Fiscal Imbalance in Aus- a Federal Constitution and How to and Guide cit., p. 865. tralian Federalism, in D. Alagiri Make the Most of Them, The Centre 18 J.M. Williams, The Australian (edited by), Fiscal Imbalances and for Independent Studies, Sydney, Constitution: A Documentary Sustainability: Concepts and Coun- 4 April 2001, p. 53. History, Melbourne, Melbourne try Experience, ICFAI Books, 2009. 6 A. Twomey and G. Withers, University Press, 2005, p. 813. 34 Warren, Benchmarking Australia’s Australia’s Federal Future: 19 Ivi, p. 1102. Intergovernmental Fiscal Arrange- Delivering Growth and Prosperity, 20 J. Quick and R. Garran, The Anno- ments (Final Report) cit., p. xx. Federalist Paper No 1, Council for tated Constitution of the Australian 35 Ibid. the Australian Federation, April Commonwealth, Sydney, Angus 36 Galligan, Fiscal Federalism: Then 2007, p. 41. and Robertson, 1900, p. 871. and Now cit., p. 330. 7 G. de Q. Walker, The Seven Pillars 21 E. Campbell, The Commonwealth 37 (1904) 1 CLR 497. of Centralism: Federalism and the Grants Power, in «Federal Law Re- 38 (1926) 38 CLR 408, p. 437. Engingeers’ Case. Proceedings of the view», vol. 3, 1968-1969, p. 225. 39 (1938) 60 CLR 263, p. 304. Fourteenth Conference of The Samu- 22 Recommendation 15, Finance 40 (1949) 80 CLR 229, p. 260. el Griffith Society, 2002. Committee Report, 9 April 41 (1983) 151 CLR 599. 8 N. Warren, Benchmarking Austra- 1897, in Williams, The Australian 42 (1997) 189 CLR 465. lia’s Intergovernmental Fiscal Ar- Constitution: A Documentary 43 B. Grewal, Economic Integration rangements (Final Report), p. 134. History cit., p. 489. and Federalism: Two Views from 9 M. Franklin, Abbott Slams State 23 Section 94. the High Court of Australia, Pro- Health “Beggars”, The Weekend 24 B. Galligan, Fiscal Federalism: ceedings of the Ninth Conference Australian (Sydney), 12 August Then and Now, in Appleby et al., of The Samuel Griffith Society 2006, p. 8. The Future of Australian Federalism (1997). 10 New South Wales v Commonwealth cit., p. 327. 44 G. Griffith (NSW Parliamentary [2006] HCA 52. 25 A. Deakin, Letter to the Editor, Library Research Service), The 11 G. Appleby, N. Aroney and T. Morning Post (London), 1 April Future of State Revenue: the High John (edited by), The Future of 1902, quoted in G. Williams, It’s Court Decision in Ha and Hammond Australian Federalism, Cambridge, Time to Repair Australia’s Tattered (Briefing Paper No. 16/97), Septem- Cambridge University Press, Federalism, Canberra, Canberra ber 1997, p. 3. 2012, p. 17. Times, March 28th, 2008, p. 15. 45 G. Williams, Ruling makes States 12 G. Craven (edited by), The Con- 26 G. Craven, Conversations with the more dependent on Commonwealth, vention Debates 1891-1898: Com- Constitution: Not Just a Piece of Sydney, The Sydney Morning mentaries, Indices and Guide, Syd- Paper, Sydney, University of New Herald, August 6th, 1997. ney, Legal Books, 1986, p. 148. South Wales Press, 2004, p. 82. 46 Warren, Benchmarking Australia’s 13 Australasian Federal Convention, 27 The Hon. Chief Justice Paul de Intergovernmental Fiscal Arrange- Official Record, 203. Quoted in J. Jersey AC, A sketch of the modern ments (Final Report) cit., p. 21. Smith, Redistribution and Federal Australian federation, in Appleby 47 C. Howard, Australian Constitu- Finance, in «Australian Econom- et al., The Future of Australian tional Law (3rd ed.), Sydney, The ic History Review», vol. 42, n. 3, Federalism cit., p. 72. Law Book Co., 1985, p. 437. 2002, p. 296. 28 New South Wales v Commonwealth 48 E. Campbell, The Commonwealth 14 C. Saunders, The Hardest Nut to (‘Surplus Revenue Case’) (1908) Grants Power, in «Federal Law Re- Crack: The Financial Settlement in CLR 179. view», vol. 3, 1968-1969, p. 221. the Commonwealth Constitution. 29 The Income Tax Act 1942 (Cth); 49 R. Menzies, Central Power in the Papers on Federalism, Intergov- Income Tax Assessment Act 1942 Australian Commonwealth: An ernmental Relations in Victoria (Cth); States Grants (Income Tax Examination of the Growthof Com- Program, 1986, p. 1. Reimbursement) Act 1942 (Cth); monwealth Power in the Australian 15 A. Zimmermann, The still and Income Tax (War-Time Ar- Federation, London, Cassel & reluctant state: Western Australia rangements) Act 1942 (Cth). Company Ltd, 1967, p. 76. and the conceptual foundations of 30 South Australia v Commonwealth 50 T. Musgrave, The Western Australian federalism, in Appleby (1942) 65 CLR 373. Australian Secessionist Movement, et al., The Future of Australian 31 G. Craven, The High Court and the in «Macquarie Law Journal», vol. Federalism cit., p. 77. States, Proceedings of the Sixth 3, 2003, p. 103. 16 J. Smith, Redistribution and Fed- Conference of The Samuel Grif- 51 (1926) 38 CLR 399.
92 Finlay
52 Noting that the High Court has 62 Twomey and Withers, Australia’s jobs (Second Interim Report), July indicated that there are some Federal Future: Delivering Growth 2010, [3.50]. limits to the conditions that can and Prosperity cit., pp. 37-38. 73 Forrest calls MRRT attack on WA, be imposed under s. 96. See, for 63 A. Twomey, Reforming Australia’s Business Spectator, November 1st, example, Attorney General (Vic); Ex Federal System, in «Federal Law 2010. rel Black v Commonwealth (1981) Review», vol. 36, 2008, p. 67. 74 The Hon. Norman Moore MLC 146 CLR 559. 64 Warren, Benchmarking Australia’s (Minister for Mines & Petro- 53 Victoria v The Commonwealth (‘Sec- Intergovernmental Fiscal Arrange- leum), Senate Committee findings ond Uniform Tax Case’) (1957) 99 ments (Final Report) cit., p. 134. into mining tax highlights State’s CLR 575. 65 The Government of Western Aus- gloomy prediction (WA Ministerial 54 Ibid., p. 609. tralia, “Western Australia’s GST Statements), 30 July 2010. 55 P.J. Hanks, Constitutional Law in Revenue”, 2012-13 Budget Fact 75 Warren, Benchmarking Australia’s Australia, Sydney, Butterworths, Sheet. Intergovernmental Fiscal Arrange- 1991, p. 274. 66 The Hon. Christian Porter MLA ments (Final Report) cit., p. xix. 56 Twomey and Withers, Australia’s (WA Treasurer), GST cut another 76 Ibid., p. xx. Federal Future: Delivering Growth slap in the face for WA, WA Min- 77 Appleby et al., The Future of and Prosperity cit., p. 47. isterial Media Statements, 24 Australian Federalism cit., p. 3. 57 A. Fenna and G. Anderson, The February 2012. Rudd reforms and the future of 67 A. Hepworth and P. Taylor, West- Australian federalism, in Appleby ern Australia’s Fury at Plunge in GST et al., The Future of Australian Share, The Australian, February Federalism cit., p. 411. 25th, 2012. 58 Australian Government, Budget 68 De Jersey, A Sketch of the Modern Paper No. 3 - Part 2: Payments for Australian Federation cit., p. 67. Specific Purposes (2009) Budget 69 Senate Select Committee on the 2009-10, 27
93
The Australian Constitution and Expressive Reform
eric ghosh
1. Introduction The literature on the expressive quality of the Constitution has largely been gen- Stable constitutions create the possibility erated by the 1999 referendum proposals. for increasing tension over time between These unsuccessful proposals were to be- the values they express and contemporary come a republic and to insert a new pre- values. The Australian Constitution is no amble into the Constitution which would exception. It is a comparatively old consti- acknowledge indigenous Australians and tution, having been agreed to in 1900, and affirm values such as freedom, the rule of it has proved to be one of the more difficult law, and protection of the environment5. to change1. Literature relating, for instance, to the pre- This tension between past and present amble has considered its wording, whether is the concern of this paper. Australia’s the existing preamble should be amended Constitution has been criticised for fail- or a new one inserted, whether it should be ing to express contemporary values. One non-justiciable, and whether any change to criticism made in popular debate leading the preamble should be linked to changes to referendum proposals has been that the to justiciable provisions of the Constitu- Constitution fails to explicitly refer to val- tion6. There were occasional pieces that ues, such as democracy, and to rights that were more general in character. An exam- governments should respect and promote2. ple is an article by Canadian legal scholar It not only appears thin, in that respect, Jeremy Webber that urged an ethic of ret- but it has also been criticised for suggest- icence with respect to expressive constitu- ing values in tension with democracy and tional reform, largely due to its divisive and Australia’s independent status3. A further exclusionary potential, difficulties revealed criticism is that it marginalises indigenous in an earlier attempt at reform in Canada7. Australians4. giornale di storia costituzionale / journal of constitutional history 24 / II 2012 95 Directions
The present paper is also general in sive voting and expressive constitutional character. It outlines general features of reform. the Constitution that are relevant to popu- Section 3 outlines some features of the lar debate on the expressive quality of the Australian Constitution that are relevant to Constitution, and does so through refer- the most prominent criticisms directed at ence to the framing of the Constitution the expressive quality of the Constitution. in the 1890s, the 1967 amendment to the Section 4 deals with alterations to the Con- Constitution, the 1999 referendum pro- stitution. It discusses the only significant posals, and the recent recommendation expressive amendment to the Constitu- for amendments suggested by a govern- tion, which related to indigenous Austral- ment-commissioned report on constitu- ians. It then turns to the most significant tional recognition of indigenous Australi- expressive referendum proposals since ans. federation, which occurred in 1999, and a While this paper refers in chronolog- current recommendation for a referendum ical fashion to some important historical proposal. moments in the life of the Constitution, it Section 5 draws on the factual materi- is not deeply historical in the sense that it al in the previous two sections to discuss sheds new light on those moments through expressive features of the Constitution. It examination of the historical record. In- refers to the multiple meanings of consti- stead, it is aimed partly at comparative con- tutional symbols, and the lack of symbolic stitutionalists interested in what general charge that constitutional provisions may lessons might be gleaned from Australi- have, partly due to ignorance of the con- an debate about changing the expressive tents of the Constitution. It also describes quality of its constitution. The Australian complexities that arise from the Constitu- debate is placed in the context of literature tion being both instrumental and expres- relevant to the expressive quality of consti- sive. All this might suggest abandonment tutions in general. of attempts at such reform. However, the The argument proceeds as follows. Sec- symbolic charge of the 1967 referendum tion 2 explores the terms “constitution” stands against defeatism. Furthermore, and “expressive quality”. It refers to the the paper discusses ways in which the sym- Australian Constitution as a codified doc- bolic charge of the Constitution could be ument and the surrounding understand- enhanced. This involves an original sug- ings sometimes described as the small “c” gestion concerning the process of consti- constitution. It also discusses the distinc- tutional reform. tion between a Constitution’s expressive and instrumental attributes, contrasting the way the distinction is drawn here with how it has been drawn in discussion of the 2. Discussion of “Constitution” and British and US constitutions. It also dis- “expressive quality” tinguishes between two expressive aims and considers their feasibility. Finally, it In discussing the Australian Constitution, explores the connection between expres- it is first helpful to refer to the British con-
96 Ghosh stitution. Eighteenth-century politician ciples which determine the legal power that and philosopher Viscount Bolingbroke government officials have. Constitutional said that «[b]y constitution we mean… provisions can vary in their instrumen- that assemblage of laws, institutions and tal and expressive significance. These two customs… that compose the general sys- variables are linked. For example, the ab- tem, according to which the community sence of instrumental significance can un- hath agreed to be governed»8. That «as- dermine expressive significance – a provi- semblage» includes written documents sion can appear merely symbolic. However, (reported common law decisions, legisla- there can be provisions of great expressive tion, and treaties, eg, the Magna Carta), but and little instrumental significance, and there is no single document recognised as vice versa. In focusing on the expressive, it “The Constitution”. The idea of a codified can be useful to consider provisions where constitution came to prominence with the the balance is towards expressive and away French and American revolutions. from instrumental significance. Indeed, The codified Australian Constitution, such provisions are sometimes described however, resulted from a peaceful process. in this paper simply as “expressive” while The British colonies in Australia, after con- provisions with instrumental but little ex- ducting plebiscites, requested the British pressive significance are simply “instru- Imperial Parliament to establish a federal mental”. That this is only one way to dis- Australian commonwealth with the British tinguish these terms is illustrated by noting Crown at its head. The Imperial Parliament other approaches. passed the Constitution after insisting on The distinction has to be drawn differ- some changes9. That this new nation in- ently when discussing the British constitu- volved no radical separation from Britain tion, since its justiciability lies only in cer- is evident in the retention of the British tain principles of statutory interpretation. Crown and also the small “c” constitution Nineteenth-century English journalist in Australia borrowing much from British Walter Bagehot distinguished two compo- constitutional practice. In other words, the nents of the English constitution: the dig- written document described as “The Con- nified (that part which is symbolic) and stitution” is informed by values and under- the efficient (the way things actually work standings about the system of government and get done)10. He mentioned that «every that comprise the small “c” constitution. constitution must first gain authority and This paper’s interest in the expressive then use authority»11. He argued that the quality of the Australian constitution stems symbolism of the government personified from popular debate about the expressive through the Crown helped to legitimise the quality of Australia’s codified constitution. government which, in its practical oper- The reference here is to the Constitution’s ation, was democratic. Bagehot suggested expression of facts, ideas and values to the that the vast majority of British subjects community at large. This contrasts with were «narrow-minded, unintelligent, in- what will be described as the Constitution’s curious»12. Their allegiance to a system of instrumental function. Here, the constitu- government was not achieved by arguments tion is perceived as a set of rules and prin- about practical utility but, instead, by ideas
97 Directions
they squarely include provisions which may also have a significant instrumental func- tion. American legal scholar Max Lerner, in his discussion of the US Constitution, mentioned that he found Bagehot’s general approach suggestive. Writing in the 1930s, Lerner stated, under the explicit influence of Freud, that we live in «a dream-world of symbols in which the shadows loom far larger than the realities they represent»14. He also suggested that American life had been riddled with violence, and that the Constitution and the Supreme Court had become symbols of an ancient sureness and a comforting stability. There is an attempt to articulate the symbolic meaning of the US Constitution and the Supreme Court, Part of the first page of the Commonwealth of Australia both of which have significant instrumen- Constitution Act (Photo credit: Parliament House Art tal functions. Collection, Canberra) The distinction made in this paper also fails to reflect Marxist concern that liberal constitutions symbolise equality, through which seem to «elevate men by an interest institutions such as the vote and the rule higher, deeper, wider than that of ordinary of law, but this symbolism masks substan- 13 tive inequality in the operation and effects life» . It is the theatrical elements of the 15 constitution that excite easy reverence and of those institutions . Marxists attempt to the most imposing institutions are the old- distinguish the symbolic meaning of insti- est. The Crown enjoyed both these attrib- tutions not from the formal practical oper- utes. ation of the system which interested Bage- Bagehot’s understanding of «digni- hot, but from their practical consequences fied» or «symbolic» seems similar to this for individuals in a society marked by an paper’s definition of “expressive”, but his unequal distribution of economic resourc- «efficient» category is broader. While “in- es. However, both Bagehot and Marxists strumental” refers in this paper to justicia- claim that the constitution has a symbolic ble elements of the Constitution, Bagehot’s function in legitimising the system of gov- «efficient» component includes non-jus- ernment. ticiable provisions recognised by govern- Turning from the expressive-instru- ment officials and others which guide the mental distinction to a focus on the “ex- practical operation of the system of gov- pressive”, one can distinguish different ernment. public aims behind expressive reform, ie, Often, though, “expressive” and “sym- aims which are disclosed as a public justi- bolic” are defined more broadly, so that fication for reform. That public justifica-
98 Ghosh tion will suggest that the reform reflects or constitutional reform. Intrinsic expres- promotes certain values. The two aims to sive aims are relevant to voting in national be distinguished are the intrinsic and the elections. An individual’s vote is extreme- goal-directed. The intrinsic depends upon ly unlikely to influence the outcome of an it being intrinsically valuable that the com- election. Australian economist Geoffrey munity expresses its allegiance to certain Brennan and American philosopher Loren values. This aim is not contingent upon an Lomasky have explained voting in elections expectation that the values expressed will in terms of its intrinsic expressive value for influence attitudes and behaviour. The the individual: «though I may not be able other aim is goal-directed, where the goal unilaterally by my action at the polls to de- is affecting behaviour, through influencing termine who wins the election, I can uni- people’s attitudes and values. laterally articulate something about who I American philosopher Robert Adams am»18. While consumers may often act to accepts that goal-directed acts are valua- maximise their self-interested preferenc- ble and can take precedence over intrinsic es, voters operate under a «veil of insignif- acts in certain circumstances16. However, icance» which tilts incentives to act in an especially where consequences are high- expressive direction19. ly uncertain or where individuals cannot Brennan has linked intrinsic expressive alter consequences, intrinsic expressive voting to expressive constitutional reform. actions are significant in measuring the Brennan says that the expressive quality of moral quality of individuals’ lives. Ad- voting suggests that the ethic of reticence ams refers to religious martyrdom, but his towards expressive constitutional reform discussion can be related to constitution- urged by Webber, while meritorious, may al politics. One could argue that intrinsic not be realistic. Expressive proposals may expressive acts can also shape a nation’s be particularly attractive to the public be- moral life. Consider constitutional recog- cause such proposals fit well with intrinsic nition of an indigenous perspective. There expressive voting20. Brennan, however, too might be substantial uncertainty over closely links intrinsic expressive voting whether achieving such recognition would with voting for expressive proposals. The significantly influence social attitudes. In expressivism of the individual vote does not this circumstance, a justification based indicate that expressive political proposals on intrinsic expressive reasons might as- are likely to attract substantial support. sume especial importance. That justifica- A strong pragmatic strain in value-ori- tion would rely on an assumption that the entations may be expressed by rejecting majority can speak on behalf of the nation purely expressive reform. Brennan was and thereby shape its identity. Members of writing with the 1999 referendum propos- the community can have an interest in that als in mind21. However, most referendum identity, since national identity can influ- proposals have concerned instrumental ence individuals’ identity17. change. The expressivism of the individ- The distinction between intrinsic and ual vote only suggests that one should not goal-directed expressive actions is also exclude the possibility of expressive meas- relevant to the feasibility of expressive ures obtaining support.
99 Directions
This section, then, has provided some tution who would become Australia’s sec- background discussion about expressive ond prime minister, called himself an «in- and instrumental attributes of constitu- dependent Australian Briton»24. While one tions. The next section outlines some well- motive for federation lay in ensuring more known features of the Australian Constitu- adequate defence cooperation amongst the tion relevant to its expressive quality. States in the face of any security threat from the emergence of European powers nearby, Australia would continue to look to Britain for assistance in this regard until the Japa- 3. The Australian constitution nese attack on Pearl Harbour in 1941. Other issues raised in the context of The Australian Constitution was enacted by federalism were tariffs and immigration. the UK Imperial Parliament in 190022. The However, addressing these concerns did Act contains covering clauses including a not necessarily require a full-blown feder- preamble, which is followed, in section 9, al system of government. Samuel Griffith, by “The Constitution”. The Constitution who was Premier of Queensland before be- establishes a federal system of government, coming Chief Justice of the Supreme Court with a federal legislature, executive and ju- of Queensland, played one of the most diciary. The federal parliament is limited to prominent roles in drafting the Constitu- enumerated heads of power. Alterations to tion. He said that federation would have the Constitution require legislation passed the advantage that the absurdity of colonies by at least one House of Parliament and a fighting each other through raising tariff popular referendum achieving a nation- walls would be apparent. The creation of al majority and majorities in a majority of a nation would have a moral effect on the States. people25. Rather than petty jealousies be- The Constitution was framed towards tween colonies, people would identify with the end of the 19th century, with British broader interests and Australia would be a constitutional practice in mind. Attention player on the international stage, «practi- was also paid to the Canadian Constitution, cally commanding the Southern Seas». which established a federal structure under The Constitution reflected formal ele- the British Crown, the American Consti- ments of the British system, with the Crown tution, which limited the federal govern- enjoying a pre-eminent position, and in- ment to enumerated powers, and the Swiss formal elements, such as constitutional Constitution, which provided a referendum conventions, which tempered monarchic procedure for constitutional (and legisla- power to achieve democratic government. tive) alterations23. The nationalism which These conventions were understandings developed in the 1890s had a republican that were not viewed as justiciable. Its first strand, but major participants in drafting three chapters are concerned with Parlia- the constitution emphasised that federa- ment, the Executive and the Judicature. tion would not jeopardise links with Britain. Section 1 vests the legislative power of the Alfred Deakin, a politician in Victoria and a Commonwealth in a Federal Parliament leading figure in the framing of the Consti- «which shall consist of the Queen, a Senate,
100 Ghosh and a House of Representatives». Section 5 was the outcome of the Federation Con- states that the Governor-General, who is ference in 1890. After that conference, elsewhere described as «her Majesty’s rep- Andrew Inglis Clark, the Tasmanian At- resentative in the Commonwealth», «may torney-General and an admirer of the US appoint such times for holding the session Constitution, inserted a section modelled of the Parliament as he thinks fit». How- on the broad equality guarantee found in ever, section 6 requires «a session of the the 14th amendment to the US Constitu- Parliament once at least in every year». In tion29. This provision was rejected at the chapter II, section 61 states that the «exec- second constitutional convention. Con- utive power of the Commonwealth is vest- cern was expressed that this provision was ed in the Queen and is exercisable by the inconsistent with the White Australia pol- Governor-General». Section 62 says that icy30. There were racially discriminatory there «shall be a Federal Executive Coun- provisions in Victorian factory legislation, cil to advise the Governor-General in the for instance. Only a provision against dis- government of the Commonwealth, and the crimination based on State residence was members of the Council shall be chosen… agreed to. by the Governor-General… and shall hold Another right conferred by the Con- office during his pleasure». As the political stitution is provided by section 116: «The scientist Donald Horne has observed: Commonwealth shall not make any law for establishing any religion, or for imposing There is no specific mention of universal fran- any religious observance…». The inclu- chise, no specific mention of the need for a sion of this section was as a counterbalance government to maintain a majority in the Low- er House, no reference to the existence of the to the reference to «Almighty God»” in the position of Prime Minister or of Cabinet, no ex- preamble: plicit statement limiting the powers of the Gov- ernor-General…26. WHEREAS the people of New South Wales, Vic- toria, South Australia, Queensland, and Tasma- Horne also referred to there being nia, humbly relying on the blessing of Almighty 27 God, have agreed to unite in one indissoluble «very little statement of liberal rights» . Federal Commonwealth under the Crown of the Instead, only a few rights are included. One United Kingdom of Great Britain and Ireland, is provided by section 117: and under the Constitution hereby established. A subject of the Queen, resident in any State, During the 1897 Convention, delegates shall not be subject in any other State to any were inundated with petitions demanding disability or discrimination which would not be acknowledgment of God in the Constitu- equally applicable to him if he were a subject of 31 the Queen resident in such other state. tion . On the other hand, minority reli- gious groups petitioned their concern that To understand this provision, it is help- such acknowledgment could give the Com- ful to note that the Constitution was drafted monwealth the implied power to make laws at two constitutional conventions, the first in regard to the nation’s religion32. Section in 1891 and the second, which was popu- 116 was intended to assuage this concern. larly elected, in 1897 and 189828. The 1891 A third right is provided by section 80. convention in fact began with a draft that It requires that a trial on indictment of any
101 Directions offence against the Commonwealth shall be not be counted». Reckoning the numbers by jury. However, it was observed at the time was relevant to the allocation of seats in the of the framing of the Constitution that this House of Representatives between States, offered little guarantee for trial by jury in and also to financial allocations between serious cases, for, unlike the US Constitu- States and the Commonwealth36. While tion, there was no explicit requirement that there is little recorded discussion of the serious crimes be tried by indictment33. reasoning behind this provision, it is in- There is disagreement on why the Con- consistent with viewing indigenous Aus- stitution states few substantive rights. John tralians as equal citizens37. Williams has argued that the High Court Another discriminatory provision was has wrongly interpreted this as an endorse- section 51(xxvi). This sub-section empow- ment of British constitutional practice, ered the Federal Parliament to make laws which assumes that rights are adequately with respect to «The people of any race, protected through parliament34. Williams other than the aboriginal race in any State, points instead to what he claims as the pre- for whom it is deemed necessary to make dominant reason for the rejection of Clark’s special laws». This section empowered proposal for a broad guarantee. That reason the Federal government to pass the type of was to ensure that states could continue to laws which the colonies had passed to lim- discriminate on racial grounds. However, it certain non-European people to various 38 Williams does not adequately connect this localities and occupations . The exclusion reason to the rejection of other substantive of «the aboriginal race» affirmed that they rights, demonstrated, for instance, by the would remain a State responsibility. thinness of the jury-trial guarantee. In summary, the Constitution, read lit- Furthermore, there seems little basis to erally, vests substantial powers in the rep- exclude a general opposition to the inclu- resentative of the Queen and contains few sion of rights from an explanation for the substantive rights. It thereby followed Brit- specific rejection of Clark’s equality pro- ish constitutional practice. It also contains posal. One justification given at the con- discriminatory provisions. These features vention debates for rejecting this proposal are clearly relevant to the expressive qual- was that its inclusion «would be a reflec- ity of the Constitution. The Constitution, tion on our civilization»; in other words, however, can and has been altered. it would reflect inappropriate distrust of the people and their representatives35. The British did not have an entrenched bill of rights and Australians would not need pro- 4. Alterations to the constitution visions drawn from a bill of rights either. Apart from containing few substantive A. The 1967 referendum on indigenous rights, the Constitution had discriminatory Australians provisions. Section 127 stated: «In reckon- ing the numbers of the people of the Com- Section 128 enables the Constitution to monwealth, or of a State or other part of the be altered through passage of legislation Commonwealth, aboriginal natives shall through at least one house of parliament
102 Ghosh and the popular referendum referred to deletion of «other than the aboriginal race earlier. Of the 44 proposed changes to the in any State». This was an instrumental Constitution, eight have passed39. Most amendment. It should be noted, though, alterations and unsuccessful proposals that the conservative government under have concerned instrumental provisions. Prime Minister Harold Holt did not plan A significant number of proposals have at- to use any new Commonwealth power42. tempted to increase the powers of the Com- The media unequivocally supported the monwealth and most have been rejected. referendum proposal, and no group in Par- The most significant expressive amend- liament supported a No case that would be ment was in 1967 and it concerned the po- sent to the electorate43. Over 90 percent of sition of indigenous Australians. At the the population voted in favour of the pro- time of federation, it was not anticipated posal, the strongest endorsement of a ref- that they would play a role in federal poli- erendum in Australian history44. tics. Indeed, the electoral laws enacted by Bain Attwood and Andrew Markus men- the newly constituted Federal Parliament tion that many Aborigines do not view the banned indigenous Australians from vot- referendum highly45. On the other hand, ing, other than the small number enfran- they note that other Aboriginal people view chised at the State level. This ban was re- it as highly significant, asserting that they moved in 196240. With the removal of the «got the rights in 1967» or were allowed ban, section 127’s exclusion of «aboriginal «to go to places that we never went before, natives» from being counted was clear- such as pictures [and] swimming pools»46. ly anomalous. The referendum proposal There is an account that the day after the involved the deletion of this section. This referendum, more Aborigines were seen proposal was largely symbolic, since it was on the streets of Brisbane, presumably unlikely to affect the composition of Par- enjoying a new sense of confidence and liament or Commonwealth-State financial security47. For a significant number of Ab- arrangements, given the small population origines, the referendum result appears to of indigenous Australians. have had greater significance than the 1962 The referendum also approved an legislation removing the ban on voting48. amendment to section 51(xxvi). As previ- While the 1967 amendments did not confer ously indicated, this empowered the Fed- citizenship rights on Aborigines, the re- eral Parliament to make laws with respect sounding majority in favour of the propos- to «The people of any race, other than the al may have been interpreted as indicating aboriginal race in any State, for whom it is greater acceptance within the wider com- deemed necessary to make special laws». munity than many Aborigines expected. Proposals to give the Commonwealth pow- Attwood and Markus state that the pri- er over Aborigines have been traced to the mary historical significance of the referen- late 1920s and were motivated partly by a dum was that it bestowed upon the Whitlam belief that the Commonwealth had the re- government and its successors the moral sources to assist Aborigines and was also authority to expand the Commonwealth’s more likely to have a wider vision41. The role in Aboriginal affairs49. The Whitlam 1967 referendum proposal involved the government seldom used the race pow-
103 Directions er in pursuing its policy agenda, but it re- on the other hand, variously portrayed lied heavily upon the referendum to justify Keating’s support for a republic as a tactic that agenda. Attwood and Markus point, to divert attention from the government’s though, to a mythology that grew around inept economic management, as divisive, the referendum, including the claim that it and a denial of British heritage and its sym- gave Aborigines equal citizenship50. While bols55. The political scientist Ian McAllister overstating the significance of the referen- notes that for republicans, «Australia’s in- dum can be helpful to the Aboriginal cause creasing cultural diversity in the post-war since that interpretation suggests that Aus- years, moves to establish closer links with tralia has not fulfilled a commitment pre- Australia’s Asian neighbours, and not least viously made, they are concerned that the Britain’s own closer role with Europe, have referendum result can also be used to sug- made the British link appear increasingly gest that Aborigines have already achieved anachronistic»56. For monarchists, on the equal citizenship51. other hand, the Crown symbolises Aus- tralia’s British heritage and the values and institutions associated with that heritage, including democracy and the rule of law. B. The 1999 referendum and beyond The conservative opposition neverthe- less promised a Convention on the republic The most significant expressive referen- question if elected. It fulfilled this prom- dum proposals that were unsuccessful oc- ise. Half the members of the Convention curred in 1999. The republican proposal were popularly elected with the other half received the most attention. The other pro- appointed by the government. The mod- posal was for a new preamble. el which attracted the greatest support was There had been republican sentiment a minimalist model. It would substitute a since the last decades of the nineteenth president for the governor-general and only century. It achieved greater support with change the method of appointment. While the election of the Labor Government in the governor-general is appointed by the 1972, due to its support of a republic52. government, the president would be ap- After the controversial dismissal of the pointed by a two-thirds majority of parlia- government by the Governor-General, ment. This model was described as elitist by employing his reserve powers, becoming those arguing that the people should directly a republic was associated partly with an elect the president. On the other hand, those opportunity to limit reserve powers53. By favouring the parliamentary-appointment contrast, for Prime Minister Paul Keating, model expressed concern that the symbol- who promised that adopting an Australian ism of a popularly elected president could republic would be a core plank of Labor’s encourage an overly assertive presidency. platform if Labor were re-elected in 1996, The third main group were the monarchists, the emphasis was on symbolism. Becoming who favoured the status quo. a republic would symbolise independent The Convention also favoured a new nationhood and give a new sense of unity preamble to the Constitution. One of the and pride54. The conservative opposition, first official statements expressing dissat-
104 Ghosh isfaction with the preamble was in a 1987 had two main messages: «Vote No to the report advising the Constitutional Com- politicians’ republic» and if you «Don’t mission, which was established in 1985 know, vote No»65. A deliberative poll was in the lead-up to the 1988 bicentenary of held on the republic question on 22-24 Oc- white settlement of Australia. The bicen- tober 1999. A deliberative poll commences tenary was seen as an opportune moment in a similar way to an ordinary opinion poll, to revise the Constitution. The 1987 Report but those polled are also invited to partic- stated that a preamble «should embody ipate in a weekend discussion concerned the fundamental sentiments which Aus- with the same issues canvassed by the sur- tralians of all origins hold in common» vey, after which there is a final poll66. The and recommended a preamble touching on final poll is intended to measure any shift the themes of multiculturalism, Aborigi- in opinion and knowledge gained through nal ownership, equality and the environ- the deliberative process. The initial poll ment57. The Constitutional Commission, not only asks questions about the topics however, was worried that a preamble pro- that are the subject of the deliberative poll posal could distract from other substantive but also information that assists in deter- and important proposals submitted to the mining how representative the group that electorate58. Also, criticisms of the pro- accepts the invitation to the weekend dis- posed preamble indicated «the difficulty cussion is. The telephone interviews were in isolating the fundamental sentiments conducted in early September. With the fi- which Australians of all origins hold in nal poll, there was a 20 percent increase in common and stating them in a concise and yes voters, from 53 to 73 percent. Support inspirational form»59. for the direct election model fell from 50 to Nevertheless, calls for recognition of 19 percent67. Indigenous Australians in the pream- The referendum was on 6 November. ble continued60. In 1998, the Republican One survey conducted in the week before Convention favoured a new preamble that the referendum found that only 12 per- would provide a broad overview of Austral- cent of respondents did not know how ian history and values61. It should, howev- they would vote. By contrast, 40 percent er, be accompanied by a non-justiciability of respondents said they had never read or clause. This was a response to anxiety that heard anything about the preamble68. The a statement in the Constitution of values preamble obtained 39.3 percent of the to- that judges could draw on might encourage tal vote. The republican model achieved judicial activism62. A new, non-justiciable 45.1 percent of the vote. In relation to the preamble was in fact passed by parliament, republic, there was a deep division between but the process of consultation was not an the wealthy, educated, inner-city areas, especially open one63. which generally voted Yes, and poorer ar- It was the Convention’s republican eas, which predominantly voted No. A sur- proposal, though, that captured most at- vey conducted soon after the referendum tention. Republicans argued that it was suggested that the No vote was divided fair- appropriate that there should be an Aus- ly equally between monarchists and direct tralian head of state64. The No campaign electionists69.
105 Directions
Turning to the final proposal for expres- 5. The expressive quality of the Constitution sive constitutional reform, the government in 2010 committed to hold a referendum A. The Crown to further reconciliation between indige- 70 nous and non-indigenous Australians . The factual material in sections 3 and 4 en- The expert panel established to advise the ables an exploration of certain claims about government noted that while the 1967 ref- the expressive quality of the Constitution. erendum empowered the Commonwealth The introduction mentioned that the Aus- to make laws with respect to Aborigines tralian Constitution has been criticised through the race power, the origins of the for failing to endorse properly important race power lay in the contemplation of values. For example, the republican move- legislation discriminating against certain ment portrayed the Crown as a symbol of races. Furthermore, including Aborigines lack of independence and in tension with in the race power failed to recognise their democratic values. However, the ensuing special status as indigenous people dispos- debate demonstrated that the Crown car- sessed by white settlement. ried different meanings over which the The panel proposed, amongst other community divided, most obviously be- things, the deletion of the race power and tween republicans and monarchists, but the inclusion of a new section conferring also over the symbolic meaning of the two power to make laws with respect to «Ab- main republican options. original and Torres Strait Islander peo- That law is amenable to multiple sym- 71 ples» . This section would have introduc- bolic meanings was highlighted by the tory words that would include recognition American lawyer Thurman Arnold. He ar- of first occupancy and acknowledgment of gued in 1935 that the law provides a res- a continuing relationship with traditional ervoir of symbols that create an illusion of lands and waters. The panel quoted with unity of thought. It is an illusion because approval from the submission by the Royal those symbols are in fact given quite dif- Australian and New Zealand College of Psy- ferent meanings by individuals74. The chiatrists, which stated that «The lack of symbols are sufficiently vague that they are acknowledgment of a people’s existence in accepted by most individuals, although be- a country’s constitution has a major impact ing interpreted in different ways. on their sense of identity, value within the Social psychologists have indeed found community and perpetuates discrimina- subsequently a tendency to overstate the tion and prejudice which further erodes the extent to which one’s own values are held by 72 hope of Indigenous people» . The panel others75. It is this tendency which Arnold also proposed another section prohibiting was largely relying on for law’s ability to racial discrimination, but the conservative create an illusion of consensus: each indi- opposition party has not agreed with this vidual sees ideals referred to in the law, and prohibition, leaving the future of the pan- may assume that it is their own interpre- 73 el’s recommendations in doubt . tation of those ideals that the law upholds. One could add that those ideals could form part of the symbols shared in common that
106 Ghosh can foster a sense of belonging to a commu- different in Australia, the multiple symbol- nity, and that might facilitate commitment ic meanings of the Crown so nicely illus- to it76. Support for the republic was partly trated by the republican debate in Australia motivated by concern that the symbolism supports doubts about Cotterrell’s analy- in the Australian Constitution was not uni- sis. Pointing to a symbolic meaning does fying. Nevertheless, the republican debate not indicate what impact it actually has on may have heightened a sense of difference, constitutional thought81. The plurality of as Australians were confronted by com- symbolic meanings evident in the republi- peting interpretations of the symbolism of can debate provides a cautionary tale about the Crown and of the different republican expressive constitutional reform. models. Indeed, the republic debate perhaps raises questions more generally about some academic approaches to interpreting B. The absence of procedural and substantive constitutional symbols. Section 2 referred values to the sociologist Cotterrell. He is con- cerned that an embrace of multiple sym- The alleged thinness of the Constitution, bolic meanings can envelop the social sci- due to the absence of a bill of rights and an entist in a «forest of symbols» from which explicit statement of values, say, in its pre- it is impossible to find patterns of symbolic amble, was raised in debate in the 1980s interpretation that are useful in furthering about citizenship. Citizenship can refer to 77 social understanding . His strategy is to what rights individuals require to distin- chose those symbols that illuminate legal guish them from mere subjects. However, communication and which structure the it is also used to explore what being a good problems addressed by constitutional law- citizen entails82. The duties of citizens are yers78. In relation to the British monarchy, often interpreted in liberal terms. There is he suggests that its hierarchical depiction a concern to strengthen values such as tol- of authority must be incorporated within erance and democracy in the face of ethni- British constitutional thought79. cally exclusive interpretations of national Of course, the British monarchy is likely identity or in the face of concern that some to have different meanings in the Australi- immigrants may come from countries an context. Political scientist Brian Galligan without a democratic tradition. There is discloses one such meaning. He has argued also concern to strengthen allegiance to the that with the Australian Constitution being state in the face of surveys suggesting high enacted after being approved in a plebiscite levels of alienation and distrust of govern- and the amendment procedure requiring ment83. a referendum, popular sovereignty is the A government-commissioned Civics central image of authority underlying the Expert Group mentioned that the unin- Constitution80. The link with the monar- spiring language of the Constitution is an chy, though, placed Australia within the obstacle to promoting commitment to a protective sphere of Britain. While the democratic system of government84. The symbolism of the British monarchy will be Report proposed a preamble and a bill of
107 Directions rights. As in most discussion, the Report fronted with the Constitution, how many had a justiciable bill of rights in mind. This Australians know about the small “c” con- paper, though, is focusing largely on pro- stitution? Where is the special benefit to visions where the expressive is of much democratic life and harmonious society greater significance than the instrumen- in keeping them in the dark? Even if our tal. In fact, legal philosopher Tom Camp- courts and general political culture have bell has argued for entrenchment of a worked well, that does not mean that the non-justiciable bill and of a parliamentary Constitution has worked well. He refers to committee which would scrutinise compli- a Report which stated: ance of draft legislation with the bill85. He It is often argued that one can spell out too much has argued that such a bill could provide a in a constitution and that to do so can hobble unifying ideology upon which a culture of future political development… But it can also rights is developed86. be argued that there is some necessity for par- The approach to expressing values in ticularity… A constitution must appear to be the the Constitution that has attracted general property of the people, the government of whose affairs is its concern. It must speak to them in interest, though, has focused on the pre- their own language89. amble. In the context of this debate, Horne has asked: «How practical is it to imagine Horne’s hypothetical of citizens looking that there can be an almost universal ac- at the Constitution is unlikely to be sub- ceptance of certain declared civic princi- stantially realised. A 1994 survey found ples and practices in Australia if there is that only 18 percent of people had some no place where they are described?»87. understanding of what the Constitution Section 3 indicated, though, that once one contained90. In a 1996 Australian Elec- takes into account the small “c” constitu- tion Study Survey, 34 percent respond- tion, the very absence of explicit procedur- ed: «Don’t know» to the statement that al and substantive values in the Australian «The Constitution can only be changed by Constitution aligns with British constitu- the High Court» and 29% agreed91. Thir- tional practice. The Constitution’s lack of ty-seven percent recognised the statement codification of values can be interpreted was false. It would seem that two-thirds as expressing trust in the political culture of the people did not recognise when re- to constrain violation of rights or seri- sponding to this question that the Consti- ous departures from democratic practice. tution can be changed by popular referen- The small “c” constitution itself contains dum. These survey results suggest that the values such as democracy and some other symbolic charge attached to the contents rights. Indeed, the Australian Constitution of the Constitution may be modest. Even was unusually democratic at the time it was on issues that achieve significant exposure, framed, with its requirement of direct elec- such as the republic proposal, there is sub- tion of the upper as well as the lower house stantial ignorance. Otherwise, the signifi- and amendment through popular referen- cant shift of opinion demonstrated by the dum. deliberative poll on the republic referred Horne in fact recognises the small “c” to in the previous sub-section should not constitution88. However, he asks: If con- have occurred.
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Political scientist Hugh Emy links this argument would be that one way to affirm ignorance to the uninspiring nature of the allegiance to democratic principles is by constitutional text92. He does not acknowl- supporting changes to make the Constitu- edge, though, that even where a Constitu- tion more intelligible to a lay person. Such tion has a significant symbolic charge, such a Constitution would, by its very intelligi- as in the US, knowledge of the Constitution bility, express a democratic ethos. What is low93. Concern about political ignorance weight this aim should have in comparison often leads to attention being paid to civics to other policy priorities is, however, a dif- education in school. However, civics edu- ferent matter. cation has not been hindered significantly by the prosaic nature of the constitutional document. Indeed, while the Civics Expert Group suggested that the uninspiring lan- C. The interaction between expressive and guage of the Constitution is an obstacle to instrumental provisions better appreciation of citizenship, it did 94 not view it as a significant obstacle . In- This sub-section turns to concern with the stead, it focused on what changes could be Constitution’s marginalisation of indige- made to civics education. nous Australians. It also points to a diffi- Indeed, the Australian government’s culty with expressive reform. That difficulty «Discovering democracy» program for lies in the interaction between the expres- learning at various points in primary and sive and instrumental features of the Con- secondary school, launched a few years af- stitution. The discussion refers to the 1999 ter the Group’s report, referred not only referendum proposal concerning a pream- to the Constitution, but also the pledge ble and also the proposed referendum on of citizenship found in the Citizenship Act recognising indigenous Australians. 2007 and the United Nations Declaration of 95 The instrumental function of the Con- Human Rights . The pledge refers to cit- stitution seems to enhance its expressive izens accepting the obligation to share the potential. The Constitution is not only a community members’ democratic beliefs, founding document but also a legal doc- rights and liberties. Those beliefs, rights ument defining governmental powers. and liberties are not specified. However, However, this instrumental function rais- students are referred to the UN Declara- es complications for expressive reform. tion. Students should thereby recognise With a somewhat activist phase of the High that democratic beliefs, rights and liberties Court being associated with a shift from le- are not just Australian or British, but enjoy galism, with its emphasis on precedent, to international recognition. an approach that draws on community val- Horne’s and Ely’s argument that the ues96, there was concern at the Republican Constitution is unfortunate in its failure Convention that general values appearing to reinforce civic-mindedness is under- in the Constitution or its preamble might mined by the weakness of the link asserted. encourage activism. A non-justiciability Instead, perhaps Horne’s argument can be clause was therefore added. modified in an expressive direction. The
109 Directions
Megan Davis and Zrinka Lemezina sug- greement about rights. Once this is recog- gest, however, that if constitutional ac- nised, it seems that decisions should rest knowledgment of indigenous Australians with elected representatives. The second is limited to a preamble that is non-justi- narrative is the “parade of horribles”. This ciable, this would demonstrate that indig- has more purchase on the collective imag- enous Australians belong to the legal and ination in Eastern Europe because people political fringes: their only place in the know that the horribles in their part of the Constitution is on the fringes of the Consti- world do happen. Sadurski suggested that tution itself97. They also claim that indige- only when the new democracies became nous Australians do not see Parliament as more stable would the first narrative gain an effective safeguard of their interests98. in influence. For constitutional reform to go beyond the Transposing this to the Australian con- merely symbolic, it must engage with the text, the second narrative (the “parade of instrumental potential of the Constitu- horribles”) may not have significant pur- tion; it must confer justiciable rights, say, chase amongst the majority, for the majori- against discrimination. ty appear to believe that their rights are well This approach is reflected in the 2012 protected103. However, it may have potency report on constitutional recognition of in- for indigenous Australians, given their ex- digenous Australians99. It recommended perience of dispossession and discrimina- that a statement of recognition should be tion. Even the limited native title rights that part of a new substantive provision confer- the High Court in the 1990s found in the ring power on the Commonwealth Parlia- common law provoked a fierce backlash. ment with respect to Aboriginal and Torres A 1996 survey indicated that 61 percent Strait Islander peoples100. Such a statement thought that the «transfer of land rights would «ensure that the purpose of the new to Aborigines» had «gone too far»104. An power was clear»101. In other words, the empathy for what may be the predominant statement would have instrumental impli- indigenous perspective might lead some cations. who adhere more to the first (reasona- The difficulty in combining the instru- ble disagreement) rather than the second mental and the expressive is, however, (“parade of horribles”) narrative to never- demonstrated by the Opposition response theless support constitutionalisation here. especially to the Report’s recommended However, the power asymmetry between constitutional prohibition on racial dis- indigenous and non-indigenous Australi- crimination. Without bipartisan support, ans suggests that the second narrative will any referendum on indigenous recognition not prevail. Instead, there is the possibil- is likely to fail. This provision raises the ity that any referendum proposal that has a controversy over entrenched rights. Legal strong chance of success might need to be philosopher Wojciech Sadurski, writing limited to the purely expressive, and such in the context of constitutionalisation in symbolism may be too tainted to warrant Eastern Europe, points to two narratives indigenous support. on constitutionalising rights102. The first points to the possibility of reasonable disa-
110 Ghosh
D. The symbolism of the 1967 referendum and lead to the view that the instrumental pro- the significance of the referendum procedure vision (constituted by the race power) lent symbolic power to the expressive provision This paper has so far highlighted difficul- (constituted by the counting provision). ties in pursuing expressive constitutional Instead, it should also be recognised that reform. The Constitution carries multiple the race power amendment itself had great meanings over which the community can symbolic and instrumental significance. divide, rendering it difficult to find unify- Its symbolic significance, derived partly ing symbols. Also, most people have little through the resounding referendum vic- knowledge of the contents of the Constitu- tory, facilitated it becoming a significant tion. Finally, the fact that the Constitution instrumental provision as well, through is also an instrumental document creates the general legitimacy that it conferred not only advantages but also complications. upon Commonwealth action in this area. All this might suggest reticence to em- More broadly the referendum victory has, bark on expressive constitutional reform. at least for some, overshadowed in sym- It might suggest a focus on expressive leg- bolic significance the legislative conferral islative measures or on instrumental meas- of the vote. This invites exploration of what ures that might achieve some of the aims of is symbolically different about legislative constitutional expressivism. To the extent versus constitutional changes. that the concern is with social cohesion Clearly, the Constitution can be seen and a sense of citizenship, could greater as fundamental to the political system and social equality be helpful? Indeed, a Marx- thereby having a special place in reflecting ist perspective might raise the question of values underpinning the political system. whether a focus on symbolism can divert This status is fortified by the Constitution attention from substantive inequalities and being only alterable through popular ref- injustices. erendum, while legislative changes can It is, however, necessary to at least con- be achieved by parliament alone. The sig- sider whether the 1967 amendment to the nificance of the referendum to constitu- Constitution suggests that constitutional tional change is well-recognised. Stephen expressivism cannot be so easily dismissed. Tierney, writing in the UK and European It will be recalled that the «Aboriginal na- context, has highlighted the significance tives shall not count» amendment was ex- of the popular referendum in altering con- pressive while the race power amendment stitutional, in contrast to ordinary, law. He was instrumental. For indigenous champi- says that using the referendum in relation ons of the proposal, the expansion of Com- to ordinary legislation may be a symbolic monwealth power was critical105. reminder that democratic authority finds One lesson from 1967 is not that purely its legitimacy in the consent of the people. expressive change can be powerful, but that However, only the constitutional referen- expressive change combined with instru- dum manifests popular sovereignty106. It mental change can be symbolically cogent. expresses the idea that the political system The way “instrumental” and “expressive” itself rests on the authority of the people. are often distinguished in this paper could Returning to the Australian context, that
111 Directions the original Constitution was endorsed by a electoral system. The British Columbian plebiscite furthers its symbolic potential as assembly had 160 members who met over a an expression of popular sovereignty. period of close to a year113. They then voted On the other hand, the popular sover- for a proposed amendment to go directly to eignty achieved through the referendum a referendum. That referendum achieved is limited: the people are restricted to ap- 57.7 percent endorsement, just short of the proving or rejecting proposals that the 60 percent requirement114. Commonwealth Parliament passes. In the Levy also reports on a nationwide poll US context, Christopher Zurn has argued which elicited views on employing a citi- that the deliberative poll process could zens’ assembly rather than the parliamen- be modified to democratise the process tary process to write proposed amend- of constitutional amendment107. Propos- ments, and the case for and against the als for amendments, if a certain threshold amendment, which would then be put to a number of signatures are gathered from referendum115. The poll indicated that the citizens, would go to large juries, which proposed assembly attracted 17.2 percent- would certify which proposals should go to a age points greater trust than the parlia- referendum. Three different juries ‘spaced mentary model116. This may be significant, out over a significant time span’ must agree Levy argues, given that in over half of all to the certification108. After certification referendums held, the difference in per- but before the referendum, there would centages between votes cast for and against be a deliberation day, where all interested referendum proposals has been less than citizens participate in a process modelled 10 points117. on deliberative polls. Zurn is adapting here However, it would seem that parlia- Bruce Ackerman and James Fishkin’s idea ment would dictate the issues on which a of a deliberation day that would occur be- Citizens’ Assembly can deliberate. In the fore important elections109. Canadian examples, the issue was the elec- Zurn expects that his recommendation toral system118. What needs to be pursued is would democratise in a deliberative di- how agenda-setting can be democratised. I rection constitutional amendment in the have argued elsewhere for a Citizens’ Court US110. I have suggested elsewhere, though, which would empower large juries to not that the requisite threshold for signatures only decide bill-of-rights matters, but may limit the proposals that reach the also what bill-of-rights matters should certification stage to those sponsored by be heard119. I proposed an expert panel to well-resourced interests111. Also, the ex- provide an initial sorting of cases in order pense of deliberation days might discour- of merit120. Such panels would combine age juries from certifying proposals. diversity and expertise in order to enhance In the Australian context, Ron Levy the likelihood of a Citizens’ Court being points to the Canadian experiment with furnished with a range of expert opinions. Citizens’ Assemblies, which occurred in Analogously, a Citizens’ Assembly could British Columbia in 2004 and Ontario in be furnished with such opinions in order 2007112. They were established by legis- to set the agenda of constitutional reform. lation and charged with considering the That Assembly, or a follow-up Assembly,
112 Ghosh would certify what proposals should go to of the Australian Constitution. One could a referendum. These Assemblies could sit imagine a different history. Suppose, the once a decade. It is through ongoing con- race power originally did not exclude Ab- versations about our system of government origines but, by 1967, there had been no that popular sovereignty is manifested. A use by the Commonwealth Parliament of by-product would be enhancing the sym- the race power with respect to Aborigines. bolic charge of the Constitution as an ex- Suppose that the 1967 referendum propos- pression of popular sovereignty. It could al was limited to removing the «aboriginal also facilitate the passage of expressive re- natives shall not be counted» provision. form through referendums. Suppose further that this proposal was resoundingly affirmed in a referendum, and it gave legitimacy to Commonwealth attempts to improve the position of in- 6. Conclusion digenous Australians. Then, the historical lesson would point to the cogency of purely This paper has attempted to throw light symbolic change. The lessons drawn from on the Australian Constitution and con- the historical record are limited by that re- stitutionalism more generally through a cord. They need to be understood as merely discussion of the expressive quality of the pointing to possible difficulties and oppor- Australian Constitution and some gener- tunities. al literature relevant to constitutional ex- The actual 1967 amendment only points pressivism. It has described some historic to the possible potency of constitutional landmarks in the expressive quality of the symbolism when combined with instru- Constitution, involving its framing, the mental change. This led to a discussion of 1967 referendum on indigenous matters, the significance of the popular referen- and the 1999 proposals relating to becom- dum for the expressive value of the Con- ing a republic and inserting a new pream- stitution, and how that symbolism could ble. It referred also to the most recent pro- be enhanced. I proposed the use of ran- posal concerning indigenous recognition. domly selected citizens to shape the agen- These historic moments are helpful da of constitutional reform and suggested in indicating difficulties with expressive it might facilitate expressive reform. This reform, due to lack of agreement over the proposal takes the paper beyond a concern meaning of symbols and lack of knowledge with the expressive quality of the Constitu- about the Constitution. That the Consti- tion, for its direct aim is deepening popular tution is also an instrumental document sovereignty and democracy. Nevertheless, both supports the expressive quality of the it also is a reminder of the strong links that Constitution as well as complicating re- can exist between the expressive and the form. Of course, since the emphasis has instrumental. been on historical lessons in the Australian context, this paper does not provide neces- sary truths about expressive constitutional reform in general or, indeed, about reform
113 Directions
1 D. Lutz, Towards a theory of consti- 9 J. La Nauze, The making of the Aus- 24 H. Irving, To constitute a nation: A tutional amendment, in S. Levin- tralian Constitution, Melbourne, cultural history of Australia’s Con- son (edited by), Responding to Melbourne University Press, stitution, Cambridge, Cambridge imperfection: The theory and prac- 1972, ch. 16. University Press, 1999, p. 30. tice of constitutional amendment, 10 W. Bagehot, The English consti- 25 Ivi, p. 84. Princeton, Princeton Univer- tution, edited by P. Smith, Cam- 26 Horne, A constitution of openness, sity Press, 1995, pp. 237-274 at bridge, Cambridge University accessibility and shared discourse? p. 261. Indeed, Lutz ranks it as Press, 2001, p. 5 (ch. 1). cit., p. 616. the most difficult constitution 11 Ibidem. 27 Ibidem. to change out of those surveyed, 12 Bagehot, The English constitution 28 Williams, Human rights cit., pp. based on a quantitative analysis. cit., p. 6. 27-28. 2 D. Horne, A constitution of open- 13 Ivi, p. 7. 29 J. Williams, Race, citizenship and ness, accessibility and shared dis- 14 M. Lerner, Constitution and court the formation of the Australian course?, in «University of New as symbols, in «Yale Law Jour- Consitution: Andrew Inglis Clark South Wales Law Journal», n. 24, nal», n. 46, 1937, pp. 1290-1319 and the “14th amendment”, in 2001, pp. 610-619, G. Williams, at p. 1290. «Australian Journal of Politics & Human rights under the Australian 15 See, eg, R. Cotterrell, The Sociol- History», vol. 42, 1996, pp. 10- Constitution, Melbourne, Oxford ogy of Law: An introduction, Lon- 23. University Press, 1998, p. 26. don, Butterworths, 1984, pp. 112- 30 Williams, Human rights cit., p. 41. 3 C. Hide, The Recent Republic De- 116. 31 Irving, To constitute a nation cit., bate – A Chronology, in C. Hide 16 R. Adams, Finite and infinite p. 166. (edited by), The Constitution Pa- goods: A framework for ethics, Ox- 32 Ivi, p. 167. pers, Canberra, Australian Gov- ford, Oxford University Press, 33 J. Quick and R. Garran, The Anno- ernment Publishing Service, 1999, ch 9. Adams actually refers tated Constitution of the Australian 1996, pp. 231-321. to “expressive” rather than “in- Commonwealth (1901), Sydney, 4 Commonwealth of Australia, trinsic expressive” acts. Legal Books, reprint, 1995, pp. Recognising Aboriginal and Torres 17 J. Waldron, Superseding historic 807-808 Historical Note. Strait Islander Peoples in the Con- injustice, in «Ethics», n. 103, 34 Williams, Race, citizenship cit., at stitution: Report of the Expert Panel, 1992, pp. 4-28 at p. 6. p. 18. 2012,
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cit., p. 145. 65 Ivi, p. 189. Australia’s constitutional system 44 Attwood and Markus, The 1967 66 J. Fishkin, Democracy and Delib- of government, Cambridge, Cam- referendum cit., pp. 54-56. eration: New Directions for Dem- bridge University Press, 1995. 45 Ivi, p. 69. ocratic Reform, New Haven, Yale 81 D. Nelken, Can there be a sociology 46 Ibidem. University Press, 1991. of meaning?, in D. Nelken (edited 47 Ivi, p. 57. 67 See, eg, R. Gibson and S. Mish- by), Law as communication, Al- 48 Goot, The Aboriginal franchise cit., kin, Australia Deliberates? The Role dershot, Hants, Darmouth, 1996, p. 546. of the Media in Deliberative Polling, pp. 107-128 at p. 111. 49 Attwood and Markus, The 1967 in J. Warhurst and M. Mackerras 82 W. Kymlicka, Contemporary Po- referendum cit., p. 64. (edited by), Constitutional Poli- litical Philosophy: An Introduction 50 Ivi, p. vi. tics: The Republic Referendum and (2nd ed.), New York, Oxford Uni- 51 Ivi, pp. viii, 70. the Future, St Lucia, Qld., Univer- versity Press, 2002, ch 7. 52 I. McAllister, Elections without sity of Queensland Press, 2002, 83 Report of the Civics Expert cues: The 1999 Australian repub- pp. 163-175 at p. 168. Group, Whereas the people: Civics lican referendum, in «Australian 68 Williams and Hume, People power and citizenship education, Can- Journal of Political Science», n. cit., p. 195. berra, Australian Government 36, 2001, pp. 247-269 at pp. 248- 69 McAllister, Elections without cues Publishing Service, 1994 at pp. 249. cit., p. 256. 18-21. 53 M. McKenna and W. Hudson (ed- 70 J. Gillard, J. Macklin, and R. Mc- 84 Ivi, p. 16. ited by), Australian Republican- clelland, Recognising Aboriginal 85 T. Campbell, Human rights strat- ism: A reader, Melbourne, Mel- and Torres Strait Islander Peoples egies: An Australian alternative, in bourne University Press, 2003 at in the Constitution, 8 November T. Campbell, J. Goldsworthy, and p. 184 (reading 95). 2010, Commonwealth of Aus- A. Stone (edited by), Protecting 54 Hide, The Recent Republic Debate tralia, Hon Jenny Macklin MP rights without a bill of rights: Insti- cit., p. 274. Media releases,
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1998,
116 Interpreting the Australian Constitution: Express Provisions and Unexpressed General Principles1
jeffrey goldsworthy
1. Early Disagreement: British versus British than the American constitutional American Approaches to Constitutional tradition. Australian federation result- Interpretation ed not from armed rebellion against per- ceived tyranny, but from calm, pragmatic Compared with its American counterpart, reform by colonial politicians encouraged the Australian Constitution is “a prosaic and assisted by the imperial government. document expressed in lawyers’ language”2. In general, the framers thought it both un- It consists almost entirely of structural and necessary and unwise to fetter their parlia- machinery provisions establishing the in- ments. Given the progress of liberal ideas stitutions of the national government (leg- under British institutions, democratically elected parliaments seemed to them the islative, executive and judicial), and divid- best possible guardians of liberty3. It was ing powers between them and between the necessary to arm an independent federal national and state governments. It lacks the judiciary with power to enforce the terms of grand and inspirational declarations of na- the federal compact. But, with a few minor tional values or principles that are found in exceptions, the traditional British doctrine the American Declaration of Independence of parliamentary supremacy was disturbed and federal Constitution. The Australian only to that extent4. Constitution includes a handful of provi- The Constitution, set out in a statute en- sions designed to suppress regional favour- acted in 1900 by the British Parliament, says itism, and to curb the power of the federal nothing about how it should be interpreted. Parliament, but no Bill of Rights. Its fram- In choosing principles of interpretation, ers were heavily influenced by the design the High Court initially had two traditions of American federalism, but with respect to draw upon: first, the way that courts in to rights, they were influenced more by the Britain and other British colonies had in- giornale di storia costituzionale / journal of constitutional history 24 / II 2012 117 Directions terpreted statutes, including colonial con- been the day after the statute was passed”7. stitutions such as that of Canada; and sec- The author of a leading textbook stated that ond, the way the American Supreme Court this was “obvious”8, presumably because had interpreted the United States Consti- otherwise Parliament’s statutes would be, tution. Since the Australian Constitution in effect, vulnerable to amendment by ex- combines the British system of responsible tra-parliamentary means. government with an American-style feder- A closely related principle concerned al system, it was appropriate that the Court the nature of this fixed, original meaning. seek guidance from both traditions. But by By 1900, British courts had held for many 1900 they were arguably different: British centuries that the main object of statutory courts tended towards literalism and for- interpretation “is to determine what in- malism, whereas the American Supreme tention is conveyed either expressly or by Court was widely believed to have adopted a implication by the language used”, or in more purposive or even creative approach. other words, “to give effect to the intention The interpretive principles that have pre- of the [law-maker] as that intention is to dominated in Australia since 1920 emerged be gathered from the language employed from an initial contest between these two having regard to the context in connection traditions. In that year, the High Court in with which it is employed”9. In 1844, this the Engineers’ case authoritatively adopted was described as “the only rule” of statutory the British rather than the American ap- interpretation10. It can be found as far back proach. But the underlying disagreement as the fifteenth century11, and many early between these interpretive approaches has authorities consistently attested to legisla- subsequently resurfaced. tive intention being the crucial ingredient In 1900, both approaches were consist- in statutory interpretation12. ent with the modern theory (or cluster of In the United States, these principles of theories) of interpretation that are called statutory interpretation had also been in- “originalism”. The core thesis of original- herited from Britain, and unquestioningly ism is that the meaning of a constitution is applied to the interpretation of the Consti- fixed at the time it is enacted or adopted, tution for the first century after its adop- and can be lawfully changed only through tion13. The idea of a “living” or “organic” the procedures for amendment prescribed constitution, with an evolving meaning by the constitution itself. Principles of stat- that adapts to social developments, did not utory interpretation inherited from Britain appear until the late 19th Century, and had were consistent with that thesis. One such little influence until political progressives principle was that, until they are formal- adopted it in the 1920s to attack the Su- ly amended, statutory provisions mean preme Court’s laissez-faire constitutional what they meant when they were enacted5. jurisprudence14. The principle was endorsed in Sir Edward So the contest between the British and Coke’s Institutes of the Laws of England in the American approaches to interpretation early seventeenth century6. In 1888, Lord did not concern the principle that the ob- Esher affirmed that “the words of a stat- jective is to clarify the Constitution’s orig- ute must be construed as they would have inal, intended meaning. Instead, it in-
118 Goldsworthy volved disagreement about the nature of and criticised the more literal approach of that meaning, and in particular, whether the Judicial Committee of the Privy Coun- it could legitimately be found only in the cil (the highest court of appeal from colo- Constitution’s express provisions, or also nial courts in the British Empire) in in- in more general principles that it was rea- terpreting the Canadian Constitution16. sonable to suppose the express provisions One of them summed up the difference by were intended to implement. Should a arguing that constitutions lay down broad, constitution be regarded as a set of discrete general principles, and courts must there- written provisions, or as a more holistic fore be guided “by a far higher and broader normative structure whose written provi- apprehension than the mere lawyer who is sions are intended to give effect to more dealing with an ordinary Act of Parliament” abstract principles that are judicially en- – in short, it must adopt a “statesmanlike” forceable even when not expressly stated? approach17. But many others criticised To what extent should unwritten but argu- American judicial creativity for being po- ably implicit principles be recognised and litical rather than legal, and argued that the applied? Potentially at stake in this contest Constitution should be interpreted strict- were, first, the possibility that the High ly, as a British statute18. They insisted that Court might mistakenly add to the Consti- the Constitution should be changed only by tution general principles that the framers formal amendment, and not by creative ju- never intended it to include, and secondly, dicial interpretation19. the greater scope for judicial discretion and Many early cases involved claims of creativity that usually attends the applica- intergovernmental immunity: that is, im- tion of abstract principles compared with munity of the organs of government at one concrete rules. This was bound to be con- level of the federal system (Commonwealth troversial, given that (as previously noted) or state) from legislation passed at the oth- the Australian Constitution consists main- er level. The Constitution is deficient in not ly of structural and machinery provisions, including express provisions dealing gen- and expressly enunciates few if any abstract erally or comprehensively with the issue20. principles. The first High Court adopted the doctrine Many of the Australian framers were of intergovernmental immunity previous- aware of the potential for considerable ju- ly developed in American cases such as dicial creativity in constitutional interpre- McCulloch v Maryland (1819) and Collector v tation, but disagreed about its desirability. Day (1871)21. That Court consisted of three Some had studied the British writer James judges – Chief Justice Griffith, and Justices Bryce’s The American Commonwealth (1889) Barton and O’Connor – who were all emi- – once called the “bible” of the Australian nent lawyers, but also experienced poli- framers – in which he applauded the cre- ticians who had been actively involved in ative development of the American consti- framing the Constitution. In D’Emden v Ped- tution by the Supreme Court15. In the Con- der (1904), they emphasised similarities in stitutional Conventions, and subsequently, the drafting of the Australian and American some framers and lawyers expressed admi- constitutions, and maintained that “some, ration for the work of the American Court, if not all” of the framers of the Constitution
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(including, presumably, themselves) were the legislature, but if its words – under- familiar with the American Constitution, stood in their ordinary and natural sense and “intended that like provisions should – were unambiguous, they constituted the receive like interpretation”22. But in re- best evidence of that intent30. Only if the ality, the Court was not really concerned words were ambiguous could the legisla- with specific provisions, but with inferenc- ture’s intention be “gathered from the oth- es from unexpressed premises on which er provisions of the Statute aided by a con- the whole federal system was supposedly sideration of surrounding circumstances”, based23. It held that the Commonwealth namely, “the history of the law”, consisting and the states were all intended to possess of “previous legislation… [and] the his- sovereignty in exercising their respective torical facts surrounding the bringing of powers; that “sovereignty subject to extrin- the law into existence”31. One of the judges sic control is a contradiction in terms”; and was a little more flexible, holding that the therefore that each was entitled to exercise “spirit and intention” of the legislature, to its powers without any interference or con- be gathered from the Act itself, might be trol from the others24. “so plain and cogent as to shake, and, per- This American doctrine was a prime ex- haps, control, the otherwise plain meaning ample of the kind of purposive, and argu- of the words themselves”32. But even he was ably creative, judicial approach that some adamant that principles of abstract justice, Australian lawyers admired, but others equity, or public policy should not be used disapproved of25. The Privy Council was in this way, absent clear evidence within believed to have discouraged its adoption the Act itself that the legislature intended in Canada, and the High Court, therefore, to implement them33. to have preferred American to British au- These judges denied that there was any thority26. Its endorsement of the American difference between British and American immunities doctrine encouraged hopes principles of interpretation34. They argued that it would favour similar reasoning in that ordinary principles of statutory inter- other contexts. pretation themselves required the special In the third constitutional case to arise, nature of a constitution to be taken into ac- Tasmania v Commonwealth, one party ar- count. They frequently quoted Chief Justice gued that “[t]he Constitution is only a dec- John Marshall’s statement in McCulloch v laration of principles for guidance”27, and Maryland that “we must never forget, that it that the Court should “look beyond the is a Constitution we are expounding”35. The letter of the Constitution”, identify prin- Constitution was special in that it was not ciples of “inter-State ethics”, and interpret a detailed code, so that many powers and the text accordingly28. But in this case the rights were conferred by implication rather same judges rejected the proposal that the than expressly36. McCulloch was influential Constitution should be governed by special in the development of the doctrine that, by rules of interpretation29. Ordinary prin- implication, every express legislative pow- ciples of statutory interpretation had to be er includes an implied power over matters applied. These principles required a statute that are “incidental and ancillary” to the to be interpreted according to the intent of principal subject-matter.
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The Court was wrong to regard the doc- Constitution itself: in effect, they were cor- trine of intergovernmental immunities recting what they regarded as a major over- as consistent with orthodox British inter- sight in its drafting40. Whether or not this pretive principles. The Constitution ex- was justified, it was an exercise of creative pressly confers supremacy on federal law, statesmanship that went well beyond the grants some exclusive powers to the Com- application of orthodox interpretive prin- monwealth, exempts the states from some ciples41. Commonwealth powers, and exempts the When a relevant case was appealed from property of both the states and Common- a state court directly to the Privy Council, it wealth from one another’s taxes. The max- rejected the doctrine of intergovernmental im expressio unius exclusio alterius suggests immunities, criticising the High Court’s that no further immunities were thought suppositions about what the framers had necessary. After all, the Commonwealth is in mind as an “expansion” of orthodox in- able to protect itself from state interfer- terpretive principles, and upholding the ence by enacting overriding legislation, expressio unius argument42. But its reason- and the framers expected the states to pro- ing was marred by a failure to grasp some tect themselves through their equal rep- consequences of written constitutional- resentation in the Senate. In this regard ism. In a scathing response, the Court dis- the framers have been proved wrong: in paraged the quality of the Privy Council’s practice, the Senate has operated as a party interpretation of the Canadian constitu- rather than as a states’ house37. Neverthe- tion – “the subject of much criticism” – by less, this was their expectation. And there quoting James Bryce’s quip that the United is no evidence whatsoever that a significant States would never have achieved greatness number of the framers had any knowledge had its constitution been interpreted in a 43 of the American doctrine of intergovern- similar manner . mental immunities, let alone that they in- tended – without expressly providing – that it be part of the Constitution. Indeed, there is no reference to the doctrine in the Con- 2. The Engineers’ Case vention Debates, which there surely would be if they really had such an important doc- In the end, the opinion of the Privy Coun- trine in mind38. In reality, the judges re- cil prevailed. In 1906, two new Justices – lied on their own, post hoc, understanding Sir Isaac Isaacs and Henry Higgins – were of what kind of federation a majority of the appointed to the High Court. They, too, framers had wanted to establish, and what had been active participants in the Con- was necessary for it to function effectively. stitutional Conventions, but did not ac- But some of the framers subsequently dis- cept the doctrines of intergovernmental agreed with them39, and since the matter immunities and reserved state powers. was not discussed, it is impossible to know Applying the same interpretive principles what a majority would have intended. In as the Privy Council, Justice Isaacs insist- any event, the judges’ post hoc understand- ed that the Court should be guided by the ing was not manifested in the words of the Constitution’s language alone, rather than
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“wander at large upon a sea of speculation ers is no reason in British law for limiting searching for a suitable intent by the misty the natural force of the language creating and uncertain light of what is sometimes them”51. called the spirit of the document, for that Here, the majority was strongly influ- is largely fashioned subjectively by the pre- enced by the British tradition of parlia- conceptions of the individual observer”44. mentary sovereignty, which was antithet- Justice Higgins described Chief Justice ical to American distrust of government, Marshall’s judgment in McCulloch v Mary- and relied on political rather than legal land as “the utterance rather of the states- control of government. In British law, man than of the lawyer”45, and disapproved the extravagant use of the granted powers in the of uncritical reliance on American cases, actual working of the Constitution is a matter to which often overlooked crucial differences be guarded against by the constituencies and between the two constitutions46. He denied not by the Courts… If it be conceivable that the that the Court had a duty to ensure that the representatives of the people of Australia as a intention behind the Constitution was not whole would ever proceed to use their national powers to injure the people of Australia conside- defeated: “Our function is to construe the red sectionally, it is certainly within the power of [Constitution], not to improve it, or to alter the people themselves to resent and reverse what it on the ground of probable intention”47. may be done. No protection of this Court in such By 1920, the original three judges had a case is necessary or proper52. departed, and three out of four new judges The rejected implications were also joined Justices Isaacs and Higgins to over- condemned as “referable to no more defi- rule the doctrine of implied intergovern- nite standard than the personal opinion mental immunities48. In the celebrated of the Judge who declares it”, based on “a Engineers’ case, the majority affirmed that vague, individual conception of the spirit British rather than American interpretive of the compact”53. They were too subjective principles should be applied. The Court’s and contentious to provide a proper basis duty was “faithfully to expound and give for legal judgment. effect to [the Constitution] according to The Engineers’ case did not put an end to its own terms, finding the intention from disagreement about the proper approach the words of the compact, and upholding to constitutional interpretation. In 1937, it throughout precisely as framed”, “clear the Court was criticised for rejecting the of any qualifications which the people of “thoroughly relevant learning” of Ameri- the Commonwealth or, at their request, can precedents the Imperial Parliament have not thought fit to express”49. Orthodox principles did in favour of the crabbed English rules of statu- permit the recognition of “necessary” im- tory interpretation, which are one of the sorriest plications50. But the rejected doctrines features of English law and are… particularly unsuited to the interpretation of a rigid consti- were necessary only in a political, and not tution54. a legal, sense. They were “based on dis- trust, lest powers, if once conceded to the But in 1936 another commentator crit- least degree, might be abused to the point icised American precedents for paying ex- of destruction. But possible abuse of pow- cessive regard “to considerations of policy,
122 Goldsworthy necessity, and other vague notions which but that has been much more controversial, can have no place in a statutory constitu- given the Court’s disapproval in Engineers tion”55, and praised the Court for being of implications not firmly based on “le- “as jealous of the written word as the Privy gal”, as distinct from “political”, necessity. Council, if not more so”56. Both views con- But as Justice Dixon later insisted, a rule tinue to be advocated to this day. completely excluding implications “would defeat the intention of any instrument, but of all instruments a written constitu- tion seems the last to which it could be ap- 60 3. Later Developments plied” . Justice (and later Chief Justice) Dix- Ever since the Engineers’ case, the Court has on, a dominant intellectual force on the been wary of so-called “top-down” rea- Court from the 1930s until the 1960s, led soning that deduces conclusions from ab- a gradual revival of new doctrines of in- stract principles – especially unexpressed tergovernmental immunities, which are ones – rather than concrete provisions57. still being refined. These prohibit both the Chief Justice Garfield Barwick once assert- Commonwealth and the states from either ed that constitutional disputes are “not to (1) passing laws that impose discriminato- be solved by resort to slogans or to politi- ry disabilities or burdens on one another; cal catch-cries or to vague and imprecise or (2) interfering in certain ways with one expressions of political philosophy”, but another’s “capacities” as independent gov- 61 instead, “by the meaning of the relevant ernments . The precise rationale of these text of the Constitution having regard to the immunities remains unclear. The Court has historical setting in which the Constitution relied on reasoning not dissimilar to that was created”58. which was rejected in the Engineers’ case, Nevertheless, the Court has often been and American decisions have once again guided by general principles that it regards been extensively cited62. These immuni- as underlying parts of the Constitution. ties are apparently regarded as practically Even Justice Isaacs, who wrote the majority necessary to ensure the minimal degree of judgment in Engineers, referred in another autonomy that is required by governments case to “the silent operation of constitu- in any genuine federation. They have been tional principles”59. The most important distinguished from the pre-Engineers im- are federalism, the separation of powers, munities on the ground that they are excep- responsible government, representative tional rather than typical63. Their impact government, nationhood, and the rule of has therefore been relatively infrequent law. Some judges have recently added pop- and not of major practical significance. ular sovereignty to this list. The way in which the first three Chap- These principles have frequently been ters of the Constitution follow the Amer- used to interpret specific provisions, for ican pattern of dealing separately with example, in cases involving textual am- legislative, executive and judicial powers, biguity or vagueness. They have also been and vesting each in a distinct branch of used to derive implications from the text, government, was regarded as powerful ev-
123 Directions idence that the Constitution embodies the because of the extent to which parliaments doctrine of the separation of powers, mod- seemed to be dominated by executive gov- ified by the system of responsible govern- ernments69. These judges seemed less con- ment and considerations of practical con- tent with their subordinate and generally venience64. That inference is debatable, passive role in protecting rights. One way since the Convention Debates offer little of expanding their role was to rely on unex- evidence that the framers had any such pressed general principles. intention, although they clearly wanted In Kable v Director of Public Prosecutions to protect the independence of the feder- for N.S.W. (1997), the Court stretched the al judiciary65. Nevertheless, the Court has principle of the separation of federal judi- established a fairly strict separation of ju- cial power far beyond the provisions from dicial and non-judicial powers, but not of which it was originally inferred70. These legislative and executive powers. The Court concern federal jurisdiction only. They has always been zealous in protecting the allow Parliament to vest state courts with exclusivity and independent exercise of ju- federal jurisdiction, but say nothing about dicial power, at least at the federal level. As their exercise of state jurisdiction. Never- we are about to see, this is the area in which theless, the Court held in Kable that no state the Court has most frequently succumbed court vested with federal jurisdiction may to the temptation to stray beyond the limits exercise, even in cases of state jurisdiction, of orthodox Engineers legalism, and engage any non-judicial power that might jeopard- 66 in “doctrinal basket weaving” . ise its reputation for independence from the political branches of the state govern- ment. This was supposedly because damage to that reputation might also taint its exer- 4. Since 1990 cise of federal jurisdiction. That principle is sound, but its application in Kable’s case Judicial reasoning based on underlying was dubious and has been subject to harsh structural principles became much more criticism. The Court held invalid a state law common in the 1990s67. Australian judges that applied to only one man, and author- were increasingly influenced by the global ised the State Supreme Court to order that trend of expanding judicial power to pro- he be imprisoned if it concluded from ev- tect rights, either by the adoption of bills idence that he was more likely than not to of rights, or by creative interpretation of constitute a danger to the community. their existing powers. Previously, they had It is difficult to see how this power tended to express scepticism about the de- damaged the Supreme Court’s integrity or sirability of a bill of rights, partly because independence at all, given that the Court they did not feel well qualified to make the eventually decided to release Kable71. But it inherently political judgments that it would is even more difficult to see how the chal- require of them68. But the balance of judi- lenged powers could possibly have un- cial opinion began to shift. An increasing dermined either the actual or perceived number of judges appeared to be losing integrity or independence of the Supreme faith in parliamentary supremacy, partly Court when exercising federal jurisdiction.
124 Goldsworthy
The first bench of the High Court: Edmund Barton, Samuel Griffith and Richard O'Connor seated, with court officials in the background. Photo taken at the first sitting of the court on 6 October 1903. (Photo from Wikipedia)
It is implausible to think that, if Supreme go” in order to protect rights in the absence Court judges are obligated by state law to of a bill of rights74; and by Professor George depart from traditional judicial practices Williams as not “adequately ground[ed] in dealing with particular matters in their in the text and structure of the Australian state jurisdiction, they are more likely to Constitution” and having “the appearance depart from such practices in exercising of being contrived” in order “to protect federal jurisdiction when they are not le- fundamental freedoms”75. Dr Greg Taylor gally required to do so. Not only is the actu- suggested that the majority’s reasoning was al integrity and independence of Supreme a rationalisation of a conclusion desired for Court judges far stronger and more resil- policy reasons76. Nevertheless, what is now ient than that72, there is simply no reason called the “Kable doctrine” has been further whatsoever to think that this might happen. expanded and applied in a series of sub- The majority’s reasoning was described by sequent cases whose facts did not make its Professor George Winterton as “barely even application any more plausible than in the plausible”73; by Professor Geoffrey Lindell parent case77. as “imaginative and strained”, indicating In 1992, the Court held that the Con- “the lengths that judges are now prepared to stitution includes an implied freedom of
125 Directions political communication78. The judges and find other rights implicit in the prin- disagreed about its basis. Some held that ciples of representative democracy or pop- it was implied by a few specific provisions ular sovereignty. One of the more activist requiring that members of Parliament be judges said in a speech that the gradual de- “directly chosen by the people”. Others ar- velopment of an implied bill of rights was a gued that it was implicit in the principle of possibility80, and in Leeth v Commonwealth, representative democracy, which underlies he and another judge held that the Consti- numerous provisions dealing with Par- tution contained an implied right to equal- liament, the executive, and constitutional ity81. A new era of bold judicial creativity amendment. Some judges also suggested was widely anticipated82. that, with Australian independence from These developments provoked a vigor- the United Kingdom, the Constitution had ous theoretical and critical commentary. come to rest on the sovereignty of the peo- In addition, they aroused heated disa- ple, an even deeper principle than that of greement within the Court itself, between representative democracy. those who derived the implied freedom The judges held that the people would of political communication from specific be unable to make a genuine electoral provisions, and those who derived it from choice, or that true representative gov- general principles. In Theophanous v Her- ernment or popular sovereignty would be ald & Weekly Times Ltd, Justice McHugh, in impossible, in the absence of freedom of dissent, objected that judges who treated political communication. The freedom was the principle of representative democracy therefore a necessary implication in that it as if it were part of the Constitution inde- was practically necessary for the Constitu- pendently of specific provisions, “uninten- tion to achieve some of its most fundamen- tionally depart from the method of consti- tal purposes. On these grounds, the Court tutional interpretation that has existed in invalidated legislation that prohibited po- this country since the time of the Engineers’ litical advertising on radio and television Case”83. Another dissenter, Justice Daw- stations during election campaigns, and in son, insisted that implications must be lieu thereof, required stations to provide necessary or obvious having regard to free time for the broadcast of political mes- the express provisions of the Constitution sages79. The declared purposes of the leg- itself. To draw an implication from ex- islation were to reduce the dependence of trinsic sources… would be to take a giant politicians on the donors of the vast funds leap away from the Engineers’ Case, guided needed for political advertising, with its only by personal preconceptions of what associated risks of undue influence or even the Constitution should, rather than does, corruption; to reduce inequality, due solely contain84. to variable economic resources, in the abil- In McGinty (1996), it was argued that ity of citizens to influence public opinion; either the words “directly chosen by the and to improve the quality of public polit- people”, or the principle of representative ical debate. democracy, required that Commonwealth These decisions gave rise to the hope, or elections conform to the principle of “one fear, that the Court would go much further, vote, one value”, and therefore that the
126 Goldsworthy number of voters in electorates be as equal broader of the two grounds on which it had as possible85. But the composition of the previously been based, appeared to reduce Court had changed, and those who had dis- the likelihood that further implied rights sented in Theophanous found themselves in would be recognised. In Kruger (1997), a the majority. Justice McHugh repeated his majority rejected the previously suggested complaint that representative democracy implied right to equality, but left open the should not be treated as an independent or possibility of an implied freedom of move- “free-standing” constitutional principle86, ment and association90. and added that insofar as they so treated it, Doubts remain about the consistency the previous decisions were “fundamen- of the implied freedom of political com- tally wrong and… an alteration of the Con- munication with the interpretive ortho- stitution without the authority of the peo- doxy established in the Engineers’ case. Its ple under s 128”87. One of the new judges, recognition made a substantial change to Justice Gummow, agreed that the earlier Australia’s system of government, which cases were inconsistent with orthodox in- to many, seemed more like a constitutional terpretive principles and should be recon- amendment than the discovery of a genuine sidered88. implication. It signified a change in judicial McGinty suggested that a majority of approach to implications. When the very the Court was unwilling to develop implied activist Justice Murphy suggested, in 1986, rights in the creative fashion that many that the Constitution included an implied had hoped for, and others had feared. The right to free speech, his brethren treat- judges then attempted to resolve their in- ed the suggestion with disdain91. In 1975, terpretive disagreements. In Lange (1997) Chief Justice Barwick said they delivered a unanimous judgment, It is very noticeable that no Bill of Rights is at- which was a remarkable achievement, tached to the Constitution of Australia and that given their previous passionate disagree- there are few guarantees… [U]nlike the case of ments. The implied freedom of political the American Constitution, the Australian Con- communication was held to be based on stitution is built upon confidence in a system “the text and structure of the Constitution”, of parliamentary Government with ministerial responsibility. The contrast in constitution- rather than on representative democracy as al approach is that, in the case of the American 89 an independent general principle . This Constitution, restriction on legislative power is appeared to concede the main objection sought and readily implied whereas, where con- of Justices McHugh and Dawson. But they, fidence in the parliament prevails, express words are regarded as necessary to warrant a limitation too, were required to compromise. Jus- of otherwise plenary powers92. tice McHugh had previously insisted that the implied freedom operated only during By deciding against a bill of rights, the federal election campaigns, but this was framers entrusted to parliaments, not rejected in Lange. As for Justice Dawson, courts, the responsibility for striking the he had not previously conceded that there necessary balances between competing was an implied freedom of political com- rights, and between rights and other com- munication at all. The decision left the im- munity interests, balances that require plied freedom intact, but by rejecting the political rather than legal judgment. The
127 Directions implied freedom had escaped the notice of the freedom whether or not they prevent Australian lawyers and judges (other than genuine electoral choices94. Justice Murphy) for the previous nine- In other words, the implied freedom ty years, despite cases such as Communist is vulnerable to the same kind of objec- Party (1950) in which it might have proved tion that Justice McHugh raised, to rep- decisive93. Moreover, this in itself suggests resentative democracy being treated as that the implied freedom is not necessary, a free-standing general principle, inde- either for the existence of representative pendent of the express constitutional pro- government, or for the people to make visions from which it is inferred, and which genuine electoral choices. The fact is that give it only partial effect. That is the very is- Australia had such a government, and the sue that divided the Court in its formative people were able to make such choices, years. The implied freedom is very difficult throughout those ninety years. It would to reconcile with the orthodox approach to undoubtedly be legitimate for the Court, in interpretation established in 1920 in Engi- enforcing express provisions requiring that neers. Disagreement about the recognition the people directly choose their represent- of unexpressed general principles that sup- atives, to invalidate legislation restricting posedly underlie the Constitution’s express political communication so severely that it provisions therefore continues, and will prevents them from doing so. But the Court probably always do so. has gone one step further, and derived from those provisions an implied freedom that it then applies largely independently of them, invalidating laws deemed to infringe
1 This article includes material 4 J. Quick and R. Garran, The General v. Carlton Bank [1899] 2 previously published in J. Annotated Constitution of the QB 158, p. 164, per Lord Russell. Goldsworthy, Australia: Devotion Australian Commonwealth, 10 Sussex Peerage Case (1844) 8 ER to Legalism, in J. Goldsworthy Sydney, Angus & Robertson, 1034, p. 1057, per Tindall CJ. (edited by), Interpreting Con- 1901, pp. 509-510; D’Emden v 11 S.B. Chrimes, English stitutions, A Comparative Study, Pedder (1904) 1 CLR 91, 110, per Constitutional Ideas in the Oxford, Oxford University Press, Griffith CJ; Nelungaloo Pty Ltd v Fifteenth Century (1936), 2006, pp. 106-160. Commonwealth (1948) 75 CLR New York, American Scholar 2 A. Mason, The Australian Consti- 495, pp. 503-504, per Williams J. Publications, 1966 reprint, p. tution in Retrospect and Prospect, 5 D.J. Hurst, The Problem of 294; P. Hamburger, Law and in R. French, G. Lindell, C. Saun- the Elderly Statute, in «Legal Judicial Duty, Cambridge, Mass., ders (edited by), Reflections on the Studies», 1983, p. 21. Harvard University Press, 2008, Australian Constitution, Sydney, 6 2 Co Inst 2. pp. 52-58. Federation Press, 2003, p. 8. 7 Sharpe v Wakefield (1888) 22 QBD 12 S.E. Thorne (edited by), A 3 J. Goldsworthy, The Constitutional 239, p. 242. Discourse Upon the Exposicion and Protection of Rights in Australia, in 8 P. Langan, Maxwell on the Understandinge of Statutes (pre- G. Craven (edited by), Australian Interpretation of Statutes (12th 1567), Lawbook Exchange Ltd, Federation Towards the Second ed.), London, Sweet & Maxwell, 2003 reprint; Stradling v Morgan Century, Melbourne, Melbourne 1969, p. 264. (1560) 1 Plowd 199, p. 205; 4 Co. University Press, 1992, pp. 151, 9 P.P. Maxwell, On the Interpretation Inst. 330 (1630s); F. Bacon, New 152-154. of Statutes (1875), p. 1; Attorney- Abridgement of the Law (1736);
128 Goldsworthy
W. Blackstone, Commentaries 21 McCulloch v State of Maryland 17 Mine, No Liability v Victorian Coal on the Laws of England (1765); US 316 (1819); Collector v Day 78 Miners’ Association (1908) 6 CLR F. Dwarris, A General Treatise on US 113 (1871). 309, p. 343 and p. 356. Statute (2nd ed.), London, 1848, 22 D’Emden Pedder (1904) 1 CLR 91, 37 S. Bach Platypus and Parliament, pp. 551-52 and 556-560. These 113. See also Municipal Council of The Department of the Senate and other early authorities are Sydney v Commonwealth (1904) Parliament House Canberra cited in R. Berger, ‘Original 1 CLR 208 (HCA) 239-240, per 2003, pp. 143-145. Intention’ in Historical Perspective, O’Connor J. 38 Even the better informed in «George Washington Law 23 Comments of the Privy Council framers seem to have had little Review», vol. 54, 1986, pp. 299- in Webb v Outtrim [1906] HCA 76; knowledge of American case law: 308; R. Berger, The Founders (1906) 4 CLR 356 (PC), p. 359. in 1898, even Sir Edmund Barton Views - According to Jefferson 24 D’Emden Pedder (1904) 1 CLR 91, acknowledged that he had not Powell, in «Texas Law Review», p. 110, plus later cases extending heard of Marbury v Madison: see vol. 67, 1989, pp. 1059-1065. the same doctrine to protect the J. Williams, The Emergence of the 13 See J. Story, Commentaries on the states. Commonwealth Constitution, in Constitution of the United States, 25 Views of Higgins J noted in H.P. Lee and G. Winterton (edited 1833, pp. 678-682, 693-698; S. Commissioners of Taxation (NSW) v by), Australian Constitutional Miller, Lectures on the Constitution Baxter (1907) 4 CLR 1087 (HCA), Landmarks, Cambridge, Cam- of the United States, 1893, pp. p. 1164. bridge University Press, 2003, 100-103; H. Black, Handbook of 26 Re Income Tax Acts (No 4); Deakin’s pp. 23-24. American Constitutional Law (3rd and Lynes’s Cases (1904) 29 VLR 39 See the views of Justices Isaacs ed.), 1910, pp. 75-81; W. Casto, 748 (VSC), pp. 763-764. and Higgins, described in section The Supreme Court in the Early 27 Tasmania v Commonwealth 2. Republic: The Chief Justiceships (1904) 1 CLR 329, p. 335. 40 Many of these points are made of John Jay and Oliver Ellsworth, 28 Ivi, p. 338 and p. 359. in G. Sawer, Implication and 1995, pp. 234-236. 29 Ivi, p. 338, per Griffith CJ, pp. the Constitution Part II, in «Res 14 T. Peebles, A Call to High Debate: 358-359, per O’Connor J, and Judicatae», vol. 4, 1948-1950, The Organic Constitution in Its clearly assumed by Barton J. See pp. 88-90. Formative Era, 1890-1920, in also Federated Sawmill Timberyard 41 G. Sawer, Australian Federalism in «University of Colorado Law & General Woodworkers Employees the Courts, Melbourne, Melbourne Review», vol. 52, 1980, p. 49. Association of Australasia v James University Press, 1967, p. 200. 15 London, McMillan, 2nd ed. 1889, Moore & Sons Pty Ltd (1909) 8 CLR 42 Webb v Outtrim (1906) 4 CLR 356, pp. 267-268, 363-368, 373-375. 465, p. 486 and p. 501. pp. 359-361. For its influence on the Australian 30 Tasmania v Commonwealth (n 27), 43 Commissioners of Taxation (NSW) v framers, see J. La Nauze, pp. 338-339, per Griffith CJ. Baxter (1907) 4 CLR 1087, p. 1110; The Making of the Australian 31 Ivi 359, per O’Connor J. For see also p. 1111. Constitution, Melbourne, Mel- an example of the practical 44 Huddart, Parker and Co Pty Ltd bourne University Press, pp. 18- application of this approach, v Moorehead [1909] HCA 36; 19, and J. La Nauze, The Name of see Municipal Council of Sydney v (1909) 8 CLR 330, 388. See also the Commonwealth of Australia, Commonwealth (1904) 1 CLR 208, Federated Sawmill Timberyard & in «Historical Studies», vol. 15, pp. 239-240, per O’Connor J. See General Woodworkers Employees 1971, p. 59. also Deakin v Webb (1904) 1 CLR Association of Australasia v James 16 G. Craven, Heresy as Orthodoxy: 585 (HCA), p. 630. Moore & Sons Pty Ltd [1909] HCA Were the Founders Progressivists?, 32 Tasmania v Commonwealth 43; (1909) 8 CLR 465, 486, 536- in «Federal Law Review», 31, (1904) 1 CLR 329, pp. 348-349. 537. 2003, especially pp. 104, 116-117, 33 Ivi, pp. 347-350. 45 Commissioners of Taxation 108-109, 113-115 and 117-118. 34 Municipal Council of Sydney v (NSW) v Baxter (1907) 4 CLR 17 Ivi, p. 117. Commonwealth (1904) 1 CLR 208, 1087 (HCA) 1164. See also HB 18 Ivi, pp. 107-108, 117-121. pp. 237-238. Higgins ‘McCulloch v Maryland 19 Ibidem. 35 Eg, Attorney-General (NSW) v in Australia’ 18 (1905) Harvard L 20 There are only a few relevant Brewery Employees Union of NSW Rev 559. provisions that deal with (1908) 6 CLR 469 (HCA), p. 612. 46 Huddart, Parker and Co Pty Ltd particular aspects of the issue, 36 Tasmania v Commonwealth v Moorehead [1909] HCA 36; some granting immunity, and (1904) 1 CLR 329, p. 338, per (1909) 8 CLR 330. others excluding it. Compare ss Griffith CJ; Commissioners of 47 Commissioners of Taxation (NSW) v 51(13) and 51(14) and s 114 with s Taxation (NSW) v Baxter (1907) 4 Baxter (1907) 4 CLR 1087 (HCA) 51(31) and s 98. CLR 1087, p. 1105; Jumbunna Coal 1164, 1169-70.
129 Directions
48 Amalgamated Society of Engineers CCH Australia, 1988, p. 177. Law Review», vol. 13, 2002, pp. v Adelaide Steamship Co Ltd 64 R v Kirby; Ex parte Boilermakers’ 165-170. (Engineers’) [1920] HCA 54; Society of Australia (the 74 G. Lindell, The Australian (1920) 28 CLR 129. The Court also Boilermakers’ case) (1956) 94 CLR Constitution: Growth, Adaptation rejected another doctrine that 254. and Conflict – Reflections About had been based on implication, 65 J.M. Finnis, The Separation Some Major Cases and Events, called the doctrine of reserved of Powers in the Australian in «Monash University Law state powers. This will not be Constitution, in «Adelaide Law Review», vol. 25, 1999, pp. 276- discussed here. Review», vol. 3, 1968, p. 159; 277. 49 Ivi, p. 142 and p. 160 respectively. F. Wheeler, Original Intent and 75 G. Williams, Human Rights 50 Ivi, p. 155. the Doctrine of the Separation of Under the Australian Constitution, 51 Ivi, p. 151. Powers in Australia, in «Public Melbourne, Oxford University 52 Ivi, pp. 151-152. Law Review», vol. 7, 1996, p. 96; Press, 1999, pp. 242-243 and p. 53 Ivi, p. 142 and p. 145 respectively. Sawer, Australian Federalism in 246. 54 RTE Latham, The Law and the the Courts cit., pp. 152-153. 76 Taylor, The Constitution of Victoria Commonwealth (1937), London, 66 L. Zines, The Present State of cit., p. 449 and p. 456. Oxford University Press, 1949, p. Constitutional Interpretation, 77 The most recent are South 563; see also p. 56 and p. 567. in A. Stone and G. Williams Australia v Totani (2010) 242 CLR 55 W. Anstey Wynes, Legislative and (edited by), The High Court at the 1, and Wainohu v NSW [2011] HCA Executive Powers in Australia, Crossroads: essays in Constitutional 24. Sydney, Law Book Co of Law, Sydney, Federation Press, 78 Australian Capital Television v Australasia Ltd, 1936, p. 20; see 2000, p. 224 and p. 231. Commonwealth (ACTV) (1992) 177 also p. 23. 67 J.J. Doyle, Constitutional Law: CLR 106; Nationwide News Pty Ltd 56 Ivi, p. 76; see also p. 14 and pp. At The Eye of the Storm, in v Wills [1992] HCA 46; (1992) 177 42-43. «University Western Australia CLR 1. 57 McGinty v Western Australia (1996) Law Review», vol. 23, 1993, pp. 79 The legislation did not affect the 186 CLR 140, n 427 (McHugh 20-21, and p. 27. discussion of political issues on J), quoting R. Posner, Legal 68 E.g., Sir G. Barwick, A Radical news, current affairs, or talkback Reasoning From the Top Down and Tory, Sydney, Federation Press, programs, or political advertising From the Bottom Up: The Question 1994, p. 24. in the other mass media. of Unenumerated Constitutional 69 H.P. Lee, The Implied Freedom of 80 J.J. Toohey, Government of Laws, Rights, in «University of Chicago Political Communication, in H.P. and Not of Men?, in «Public Law Law Review», vol. 59, 1992, p. Lee and G. Winterton (edited Review», vol. 4, 1993, Public L 433. by), Australian Constitutional Rev 158, p. 170. 58 Attorney-General (Cth) (Ex rel Landmarks, Cambridge Cam- 81 [1992] HCA 29; (1991) 174 CLR McKinlay) v Commonwealth bridge University Press, 2003, p. 455. (McKinlay’s case) (1975) 135 CLR 391. 82 Doyle, Constitutional Law: At The 1, p. 17. 70 Kable v Director of Public Prosecu- Eye of the Storm cit., p. 15; The 59 Commonwealth v Kreglinger & tions for NSW (1996) 189 CLR 51. Hon. Mr. Justice M. Kirby, Courts Fernau Ltd and Bardsley [1926] 71 E. Handlsey, Do Hard Laws Make and Policy: The Exciting Australian HCA 8; (1926) 37 CLR 393, p. 413. Bad Cases? – The High Court’s Scene, in «Commonwealth Law 60 West v Commissioner of Taxation Decision in Kable v Director of Bulletin», vol. 19, 1993, p. 1794. (NSW) [1937] HCA 26; (1937) 56 Public Prosecutions (NSW), in 83 Theophanous v Herald & Weekly CLR 657, p. 681. «Federal Law Review», vol. 25, Times Ltd(1994) 182 CLR 104, p. 61 This abstract summary 1997, pp. 176-177; G. Taylor, The 202. necessarily glosses over various Constitution of Victoria, Sydney, 84 Ivi, p. 194. complications, and possible Federation Press, 2006, p. 448. 85 McGinty v Western Australia differences, in the way that the 72 See Heydon J in Wainohu v (1996) 186 CLR 140. states and the Commonwealth are NSW [2011] HCA 24, para. 148 86 Ivi, p. 232. protected. (Supreme Court judges’ “actual 87 Ivi, pp. 235-235. 62 Sawer, Implication and the impartiality as between the 88 Ivi, p. 289. Constitution Part I cit.; G. Sawer, government and the governed 89 Lange v Australian Broadcasting Australian Federalism in the has never been questioned… Corporation [1997] HCA 25; Courts, Melbourne, Melbourne they have the touchy pride of (1987) 189 CLR 520. University Press, 1967. Castillian aristocrats”). 90 Kruger v Commonwealth (Stolen 63 M. Coper, Encounters With The 73 G. Winterton, Justice Kirby’s Coda Generation case) (1996) 190 CLR Australian Constitution, Sydney, in Durham Holdings, in «Public 1.
130 Goldsworthy
91 Miller v TCN Channel Nine Pty Ltd (1975) 135 CLR 1, pp. 23-24. Revisited, in «University of (1986) 161 CLR 556, p. 569 per 93 Australian Communist Party v Queensland Law Journal», vol. Gibbs CJ, p. 579 per Mason J, p. Commonwealth [1951] HCA 5; 30, 2011, pp. 9-34. 636 per Dawson J. (1951) 83 CLR 1. 92 Attorney-General (Cth) (Ex rel 94 For further details of this McKinlay) v Commonwealth criticism, see J. Goldsworthy, (McKinlay’s case) [1975] HCA 53; Constitutional Implications
131
The Validity of Henry VIII Clauses in Australian Federal Legislation
gabriël a. moens, john trone
1. Introduction lished laws”7. However, proclamations is- sued under the Statute were able to infringe Under the usual type of regulation making Acts of Parliament enacted after the Statute power a regulation must be consistent with of Proclamations8. the empowering Act and other Acts1. By In 1932 the Donoughmore Committee contrast, a Henry VIII clause authorises the of the United Kingdom Parliament pro- amendment of a statute by regulation2. The posed that the use of Henry VIII clauses in High Court of England and Wales defined statutes be “abandoned in all but the most a Henry VIII clause as “a power granted by exceptional cases”9. However, the use of Parliament to the Executive to make subor- such provisions has since flourished in the dinate legislation which itself counts as if United Kingdom. In the absence of an en- it were primary legislation”3. By enacting a trenched Constitution embodying a sepa- Henry VIII clause, Parliament “delegate[s] ration of powers, there are now many Unit- the power of amendment or repeal”4. ed Kingdom examples of such provisions10. It appears that such clauses were named In recent years the Australian feder- after King Henry VIII due to his autocratic al Parliament has also enacted numerous reputation5. That monarch obtained par- Henry VIII provisions in a variety of stat- liamentary authority giving the force of law utes11. For example, some of these provi- to his proclamations. Under the Statute of sions authorise amendment of the parent Proclamations of 15396 royal proclama- Act by regulation12. Other provisions au- tions were given “the force of statutes, but thorise amendment of another specific Act so that they should not be prejudicial to or Acts13. This paper considers the consti- any person’s inheritance, offices, liberties, tutional validity of such clauses under the goods and chattels, or infringe the estab- Australian federal Constitution. giornale di storia costituzionale / journal of constitutional history 24 / II 2012 133 Directions
2. Broad Delegations of Federal Legislative Several judgments have indicated that Power are Constitutionally Permissible a law conferring an extraordinarily broad delegation might be beyond power as it may In Australia the doctrine of the separation not be capable of characterization as a law of powers has had a significant practical with respect to a specific head of federal operation only in respect of the separation legislative power22. Some judges have seen of the judicial power from the legislative failure of characterization as the reason why 23 and executive powers14. There is thus an an abdication of power would be invalid . ‘asymmetry’ between, on the one hand, the The characterization limitation is not separation of the judicial power from those a useful test for the validity of a delegation of the political branches, and on the other as it is inconsistent with the Court’s later hand, the separation of power between the decisions regarding the proper approach 24 legislature and the executive15. to characterization . Under the Court’s The High Court has upheld broad del- modern precedents a law may be upheld egations of legislative power to the execu- as being with respect to a subject matter tive in the form of the power to make reg- of federal legislative power even though it also concerns matters falling within State ulations. The conferral of legislative power 25 upon the Parliament does not prevent that residuary power . body from delegating part of its power to In 1931 the High Court upheld the valid- the executive16. ity of a Henry VIII clause in the Dignan case. The provision allowed the amendment of other Acts but not the empowering Act26. Dixon J observed that the Henry VIII clause at issue “may be exercised in disregard of 3. Abdication of Federal Legislative Power is other existing statutes, the provisions of Constitutionally Impermissible which concerning the same subject matter may be overridden”27. A leading commen- Several national Constitutions express- tary on the federal Constitution cites the ly prohibit the legislature from abdicat- Dignan case for the proposition that “the 17 ing or alienating its legislative power . In Executive through a Henry VIII clause can Australia such a prohibition has arisen by override Acts of Parliament itself”28. judicial interpretation of the separation The Court’s concept of abdication is ex- of powers between the legislature and the cessively formalistic. It only prohibits an executive. abdication or renunciation of the power of The Australian High Court has stated the Parliament to repeal or amend a stat- that the federal Parliament may not abdi- ute29. As Mason CJ, Dawson and McHugh JJ cate its legislative powers18. The State Par- pointed out in the Capital Duplicators case, liaments also may not abdicate their legis- “[s]o long as Parliament retains the pow- lative powers19, though their Constitutions er to repeal or amend the authority which are not entrenched in most respects20 and it confers upon another body to make laws do not embody a “formal separation of with respect to a head or heads of legislative powers”21. power entrusted to the Parliament, it is not
134 Moens, Trone easy to see how the conferral of that author- In relation to the use of Henry VIII ity amounts to an abdication of power”30. clauses the following argument for a broad- The concept of abdication is so narrow that er concept of abdication of power is per- it has not proved to be a meaningful limita- suasive: tion in practice. The High Court has never the Constitution, in vesting legislative power in invalidated a delegation of legislative power a Parliament chosen by the people, does not only 31 as an abdication of power . give that Parliament powers; it also gives it du- The High Court has not considered the ties. One of these duties is to guide the executive constitutional validity of Henry VIII clauses in the performance of its task, and an attempt to since the Dignan case in 1931. The Court’s abdicate that responsibility is indeed unconsti- tutional. Abdication in this sense has nothing narrow concept of abdication is ripe for re- to do with [the] technical notion of abdication, consideration. It would be open to the Court namely, the transfer of an entire head of power to develop a more substantive notion of the to the executive. […] Rather the impermissibil- abdication of legislative power32. The High ity of Parliament’s abdicating its legislative pow- Court is not bound by its own decisions33. er derives from the purposes of the separation In recent years the Court has overruled a of powers doctrine. These are not confined to preventing one arm of government from unilat- longstanding constitutional precedent and erally invading the territory of another. […]. the rejected the previously assumed under- doctrine has another purpose, namely to vest the standing of the effect of a constitutional powers of government in the appropriate organ provision34. The Court has also modified of government and this introduces a dimension its test for infringement of the implied of responsibility and constitutional obligation 35 into the exercise of those powers. In the case freedom of political communication . of Parliament, the responsibility with which it A reconsideration of the Court’s nar- has been entrusted is to settle the fundamental row concept of abdication would require a principles and policies of the law after due pub- lic deliberation among those who represent rival rather less dramatic modification of cur- 36 rent doctrine so that a delegation of power views . to amend statute law by regulation would constitute an abdication of legislative pow- er. Subordinate legislation must at least be subordinate to primary legislation (statute 4. Comparative Case Law law). The delegation of regulation making power should not extend to the amendment The High Court often has regard to foreign of statute law any more than it would extend case law if it finds that the reasoning of the to the enactment of statute law – either case decision is persuasive37. In the absence of would be the exercise of primary rather recent Australian authority on point, for- than subordinate legislative power. eign case law provides some instructive ex- It would not be necessary to overrule amples of the constitutional infirmities of the prior decisions, only to adopt a more Henry VIII clauses. substantive concept of abdication. All that The text and structure of the Unit- would be required is to make a relatively ed States federal Constitution in relation narrow expansion of the effect of what is al- to the vesting of legislative power is very ready recognised in the case law. similar to that of the Australian federal
135 Directions
avoid invalidity under this non-delega- tion doctrine, Congress must “lay down by legislative act an intelligible principle to which the person or body authorized to [act] is directed to conform”41. However, the Court has not invalidated a delegation since 193542. The Supreme Court has not considered whether a Henry VIII clause would violate the non-delegation doctrine. However, a 1998 decision suggests that the Court would regard a Henry VIII clause as con- stitutionally invalid. The Court held that the Line Item Veto Act was unconstitution- al. The statute had purported to empower the President to cancel items of expendi- ture in previously enacted Congressional statutes43. The Court held that the Act was inconsistent with the President’s veto pow- er44, to which the Australian Constitution has no equivalent. The Court did not exam- ine the applicability of the non-delegation principle45. However, in considering the veto power the Court observed that “[t]here King Henry VIII (1491-1547): King Henry VIII Clauses were named after him due to his autocratic reputa- is no provision in the Constitution that au- tion. Henry VIII effectively bypassed the legislature thorizes the President to enact, to amend, with his clauses. (Photo from Wikipedia) or to repeal statutes”46. In relation to the delegation of legisla- tive power the structure but not the text of Constitution. The United States Constitu- the South African Interim Constitution was tion provides that “[a]ll legislative Powers similar to that of the Australian Constitu- herein granted shall be vested in a Congress tion. In each Constitution legislative, ex- 38 ecutive and judicial authority was expressly of the United States” . The Australian fed- 47 eral Constitution provides that “[t]he leg- vested in the relevant branch . islative power of the Commonwealth shall Under the Interim Constitution the be vested in a Federal Parliament”39. Each Constitutional Court held that a delega- Constitution separately vests the judicial tion to the President of a power to amend and executive powers40. the empowering Act was invalid as it vio- The United States Supreme Court has lated the separation of powers. The Court held that the vesting of the legislative pow- acknowledged that the conferral upon the executive of regulation making power was er in Congress prohibits Congressional 48 delegation of the power to make laws. To necessary in a modern legal system .
136 Moens, Trone
However, to uphold the validity of the However, the Supreme Court has made conferral upon the executive of power to clear that Henry VIII clauses infringe amend or repeal a statute would be “quite the vesting of legislative power in the different”. That would be “subversive” of Oireachtas. The court has held that “del- the constitutionally prescribed process of egated legislation cannot make, repeal or enacting and repealing statute law49. The amend any law and that, to the extent that Court observed out that “[t]he authorisa- the parent Act purports to confer such a tion of [such] legislation… allows control power, it will be invalid having regard to the over legislation to pass from Parliament provisions of the Constitution”55. to the executive. Later this power could be In another decision Finlay CJ stated: used to introduce contentious provisions “The wide scope and unfettered discretion into what was previously uncontentious contained in the section [under consider- legislation”50. ation] can clearly be exercised by a Minis- This decision was based upon an im- ter making regulations so as to ensure that plication from the assignment of powers what is done is truly regulatory or admin- to the branches of government. As Sachs J istrative only and does not constitute the pointed out in his concurring opinion, the making, repealing or amending of law in interim Constitution imposed “no express a manner which would be invalid having limitation on the power of Parliament to regard to the provisions of the Constitu- pass a law delegating its legislative author- tion”56. ity”. However, such a restriction was to be Legislative and executive acceptance implied from “the design and structure of of this clear authority has been uneven. A the Constitution as a whole”51. Henry VIII clause appears in recent finan- In relation to the assignment of powers cial rescue legislation57. The President did the text of the Irish Constitution is quite not refer the Bill to the Supreme Court for different from that of the Australian its opinion regarding the proposed law’s Constitution. However, the structure of the validity58. On the other hand, during the Irish Constitution in this context is broadly previous year a Minister had stated that an similar, with an express division of powers existing Henry VIII clause was invalid in between the three branches52. the light of Supreme Court authority59. The Irish Constitution expressly The position in Canada is less clear. declares that the legislature has exclusive During the First World War the Canadian power to make laws: “The sole and exclusive Supreme Court upheld the constitutional power of making laws for the State is hereby validity of a Henry VIII clause in a War vested in the Oireachtas [legislature]: no Measures Act60. This decision was applied other legislative authority has power to in another Supreme Court case during make laws for the State”53. Despite the the Second World War61. The Supreme broad nature of this prohibition, the Irish Court has not considered this issue since Supreme Court has held that a statute may that time62. In the absence of contrary validly confer regulation making powers authority, the lower courts continue to upon the executive54. apply these wartime decisions63.
137 Directions
However, the text and structure of the whereas executive authority applies the law Canadian Constitution in relation to the in particular cases”71. The current bench of separation of powers is quite different from the High Court has unanimously cited this that of the Australian federal Constitution. definition72. The Canadian Constitution does not contain In the Plaintiff S157 case five Justices an express vesting of power in each branch of the High Court expressed considerable of government64, with the somewhat scepticism regarding an argument that the anomalous exception of the executive Migration Act could be validly redrafted so power65. The textual source of the separation that effectively all of its provisions were no doctrine is thus entirely different from that more than guidelines for the executive73. in the other jurisdictions discussed herein. These Justices considered that such a pro- The Canadian Supreme Court has held that vision would be invalid as it was not an ex- the Constitution embodies a separation of ercise of legislative power, since it did not powers through its preambular statement “determine […] the content of a law as a that the Constitution is “similar in principle rule of conduct or a declaration as to pow- to that of the United Kingdom”66. er, right or duty”74. There is a persuasive Furthermore, the Canadian Constitu- argument that the majority’s reasoning in tion does not embody a “strict” separation Plaintiff S157 would be fatal for the validity of powers, even between the judiciary and of Henry VIII clauses, as such clauses gen- the executive67, so Canadian decisions re- erally permit the executive to modify all of garding the separation of powers must be the provisions of one or more statutes75. approached with caution. By contrast, the Australian Constitution enforces a strict separation of powers between the judiciary 68 and the political branches . 6. The Rule of Law The United Kingdom and New Zealand do not offer guidance regarding the con- The High Court has often emphasized that stitutional validity of Henry VIII clauses as the federal Constitution was framed upon those jurisdictions do not have entrenched the assumption of the rule of law76. The Constitutions embodying a separation of Constitution provides textual and structural powers69. In those nations there is no judi- 70 support for the rule of law. For example, the cial review of constitutional validity . High Court’s constitutionally entrenched jurisdiction to grant writs of “Mandamus or prohibition or an injunction […] against an officer of the Commonwealth”77 has been 5. Questionable Status of a Henry VIII Clause regarded as a guarantee of an important as- as an Exercise of Legislative Power pect of the rule of law78. That aspect is the principle of the legality of governmental Latham CJ defined an exercise of legislative action79. power as follows: “legislation determines The High Court has not used the rule of the content of a law as a rule of conduct or law as a separate test of the validity of fed- a declaration as to power, right or duty, eral legislation. However, the recognition
138 Moens, Trone of an implied constitutional doctrine of the Constitution itself be expressly amended. rule of law would be a logical consequence As a result “no one could determine what of the “text and structure” of the Constitu- the Constitution provided by reading tion80. The practice of the Supreme Court of it – a state of affairs scarcely compatible Canada before the adoption of the Canadian with the rule of law”87. By contrast, the Charter of Rights and Freedoms would sup- present German Constitution requires that port the recognition of such a doctrine. The constitutional amendments must expressly Supreme Court regarded the rule of law as amend or supplement its text88. “implicitly recognized” by the Constitution It is widely considered that Henry Act 1867 (formerly the British North America VIII clauses are undesirable for the rule Act)81. of law89. Courts look upon such clauses If the High Court declined to recognize with suspicion. The New Zealand Court of an implied constitutional doctrine of the Appeal described them as “in principle, rule of law, the protection of the rule of law undesirable”90. The New Zealand Supreme is likely to be a major influence upon the Court described a Henry VIII clause as “a Court’s interpretation of the other consti- blank cheque”91. The Ontario Supreme tutional limits of governmental power. The Court described another clause as a separation of powers should be no excep- “breathtaking power”92, “constitutionally tion. suspect”93 and “arbitrary”94. Speaking The rule of law includes the principle that extra-judicially, the Lord Chief Justice “ordinary (substantive) law should possess of England and Wales has suggested that certainty, generality and equality”82. The “Henry VIII clauses should be confined rule of law requires that “the law must be to the basement of history” and that “[w]e governed by general rules which are made must break what I believe to be a pernicious in advance”83 as “only certainty will be able habit”95. to ensure that the law effectively guides Even a legislature has recognised that human behaviour”84. such provisions are problematic for the rule Henry VIII clauses allow the executive to of law. The Queensland Legislative Standards avoid the operation of “general rules which Act 1992 identifies “fundamental legisla- are made in advance” and are inconsistent tive principles”, which “are the principles with an important element of the rule of law. relating to legislation that underlie a par- It has been said that in the United Kingdom liamentary democracy based on the rule of “we are continually passing legislation law96. These principles require that “legis- which virtually permits Governments to lation has sufficient regard to […] the in- make new laws as they go along”85. stitution of Parliament”97, which depends It is also difficult to readily determine upon whether it “authorises the amend- what a statute actually provides if it has been ment of an Act only by another Act”98, amended by regulation86. This situation In any event the need for Henry VIII is reminiscent of the former Weimar clauses is most dubious. Minor amend- Constitution, which could be amended ments to statutes can be enacted through by a law passed by a special majority but miscellaneous provisions amendment with no requirement that the text of the Acts99. The federal statute book con-
139 Directions tains many recent examples of legislation an abdication of legislative power. Subor- making miscellaneous or consequential dinate legislation must at least be subordi- amendments to various Acts. nate to primary legislation. A more modern approach to the separation of powers prob- lems of Henry VIII clauses has been taken by other constitutional courts. 7. Conclusion There is also a persuasive argument that the majority’s reasoning in the Plaintiff S157 Over seventy years ago the Australian High case would be fatal for the validity of Henry Court upheld the validity of a Henry VIII VIII clauses, as such clauses generally per- clause in the Dignan case. The Court has mit the executive to modify all of the pro- stated that the federal Parliament may not visions of one or more statutes. Henry VIII abdicate its legislative powers. However, clauses allow the executive to avoid the op- the Court’s concept of abdication is exces- eration of “general rules which are made in sively formalistic. It only prohibits an ab- advance” and are thus inconsistent with an dication or renunciation of the power of the important element of the rule of law. Such Parliament to repeal or amend a statute. provisions are of questionable constitu- The High Court’s concept of abdica- tional validity. At the very least it is widely tion is so narrow that it has not proved to considered that the use of such statutory be a meaningful limitation in practice. The provisions is constitutionally undesirable. Court should modify its abdication doc- trine so that a delegation of power to amend statute law by regulation would constitute
1 Laws of Australia, para. 2.2.660; in Council (1983) 49 BCLR The Statute of Proclamations, in De L v Director-General, NSW 305; 5 DLR (4th) 254 at p. 269 «English Historical Review», Department of Community Services (hereafter Waddell); Queensland vol. 32, 1917, p. 34. For examples (No 2) (1997) 190 CLR 207 at p. Law Reform Commission, Henry of the operation of the Act, 211 and p. 220. VIII Clauses, Report No 39, see R.W. Heinze, The Pricing of 2 N.W. Barber and A.L. Young, Brisbane: QLRC, 1990, p. 1; D. Meat: A Study in the Use of Royal The Rise of Prospective Henry VIII Malcolm, The Limitations, if Any, Proclamations in the Reign of Henry Clauses and their Implications for on the Powers of Parliament to VIII, in «Historical Journal», Sovereignty, in «Public Law», vol. Delegate the Power to Legislate, in vol. 12, 1969, p. 583 at pp. 593- 112, 2003, p. 112. «Australian Law Journal», vol. 595. For another early example 3 Oakley Inc v Animal Ltd [2005] 66, 1992, p. 255; Vanstone v Clark of such a provision, see P.R. RPC 30 (p 713), para. 79; [2005] (2005) 147 FCR 299 at para. 122; Roberts, The ‘Henry VIII Clause’: EWHC 210 (Ch). [2005] FCAFC 189. Delegated Legislation and the 4 Thoburn v Sunderland City Council 6 31 Henry VIII c 8 s 2. The text of the Tudor Principality of Wales, in T.G. [2003] QB 151, para. 13; [2002] Act is reproduced in J.R. Tanner, Watkin (edited by), Legal Record EWHC 195. Tudor Constitutional Documents, and Historical Reality, London: 5 Report of the Committee on Cambridge, Cambridge University Hambledon, 1989, p. 37. Ministers’ Powers Cmd 4060 Press, 1922, p. 532. The Act was 7 T.P. Taswell-Langmead, English (1932), p. 36 (hereafter repealed in 1547 by 1 Edward VI Constitutional History (9th ed.), Donoughmore); Waddell v Governor c 12 s 4. See generally E.R. Adair, London, Sweet and Maxwell,
140 Moens, Trone
1929, p. 343. Act 2007; s 14A(2), Australian Commonwealth (1951) 83 CLR 1 8 G.R. Elton, Henry VIII’s Act of National Registry of Emissions at p. 257 (hereafter Communist Proclamations, in «English Units Act 2011; s 12(8), Work Party). Historical Review», vol. 75, Health and Safety Act 2011. 23 Dignan cit., pp. 119-121; Crowe 1960, p. 208 at p. 211; M.L. 14 G.A. Moens and J. Trone, Lumb, cit., p. 94. Bush, The Act of Proclamations: A Moens and Trone, The Constitution 24 G. Winterton, Parliament, the Reinterpretation, in «American of the Commonwealth of Australia Executive and the Governor- Journal of Legal History», vol. Annotated (8th ed.), Sydney, Lex- General, Melbourne, Melbourne 27, 1983, p. 33 at 35. isNexis Butterworths, 2012, p. 45 University Press, 1983, p. 89. 9 Donoughmore cit., p. 65; see (hereafter Moens and Trone). 25 Murphyores Inc Pty Ltd v also N. Morag-Levine, Agency 15 Victorian Stevedoring & General Commonwealth (1976) 136 CLR Statutory Interpretation and Contracting Co Ltd v Dignan (1931) 1 at p. 22; Seamen’s Union of the Rule of Common Law, in 46 CLR 73 at p. 101 (hereafter Australia v Utah Development Co «Michigan State Law Review», Dignan). (1978) 144 CLR 120 at p. 154; 2009, p. 51 at p. 63. 16 Dignan cit., pp. 83-84, p. 86, p. Actors and Announcers Equity 10 s 10(2), Human Rights Act 1998; 101, p. 117; Attorney-General (Cth) Association v Fontana Films Pty s 1(7), Legislative and Regulatory v R; Ex parte Boilermakers’ Society Ltd (1982) 150 CLR 169 at p. 184, Reform Act 2006; s 12(2), Banking of Australia (1957) 95 CLR 529 at pp. 193-194; Commonwealth (Special Provisions) Act 2008; p. 545; Radio Corporation Pty Ltd v v Tasmania (1983) 158 CLR s 51(2), Constitutional Reform Commonwealth (1938) 59 CLR 170 1 at p. 151, p. 270; Alexandra and Governance Act 2010 (UK); at p. 179, p. 186, p. 193; Plaintiff Private Geriatric Hospital Pty Ltd v C. Forsyth and E. Kong, The S157/2002 v Commonwealth Commonwealth (1987) 162 CLR Constitution and Prospective (2003) 211 CLR 476 at para. 102 271 at p. 279; Bayside City Council v Henry VIII Clauses, in «Judicial (hereafter Plaintiff S157/2002). Telstra Corporation Ltd (2004) 216 Review», vol. 9, 2004, p. 17 at pp. 17 s 100(3), Constitution of Papua CLR 595 at para. 27, para. 92. 18-21. New Guinea (1975); Art 76(1), 26 Dignan cit., p. 88; G. Ng, 11 It has been argued that Henry Constitution of Sri Lanka (1978); Slaying the Ghost of Henry VIII: A VIII clauses may be distinguished s 29, Constitution of Argentina Reconsideration of the Limits Upon from provisions that confer a (1994). For an historical the Delegation of Commonwealth power to make regulations that example, see Art 45(1), Legislative Power, in «Federal Law modify the effect of a statute Constitution of Sri Lanka (1972). Review», vol. 38, 2010, p. 205, at in particular cases without 18 Dignan cit., p. 121; Giris Pty Ltd v p. 218 (hereafter Ng). making a textual amendment. Federal Commissioner of Taxation 27 Dignan cit., p. 100. See S. Bottomley, The Notional (1969) 119 CLR 365 at p. 373, p. 28 P.H. Lane, Lane’s Commentary on Legislator: The ASIC’s Role as a 381. the Australian Constitution (2nd Law-maker, in «Federal Law 19 Gould v Brown (1998) 193 CLR ed.), Sydney, LBC Information Review», vol. 39, 2011, p. 1 at pp. 346 at para. 287 (hereafter Services, 1997, p. 429. 2-6 and pp. 23-24. Gould); Byrnes v R (1999) 199 CLR 29 Gould cit., para. 287; Permanent 12 ss 189A(3), 231A(3), Trade Marks 1 at para. 4, para. 92; R v Hughes Trustee Australia Ltd v Commissioner Act 1995; Sch 1 s 100.7, Criminal (2000) 202 CLR 535 at para. 26, of State Revenue (2004) 220 CLR Code Act 1995; ss 5I(1), 200E(2C), para. 94. 388 at para. 77. 601YAB(1), 798L(1), 854B(1), 20 McCawley v R [1920] AC 691 at pp. 30 Capital Duplicators Pty Ltd v 911A(5A), 985K(4), 1200F(2), 704-705. Australian Capital Territory (No 1) 1492(2), 1513(2), Corporations 21 B. Selway, The Constitution of South (1992) 177 CLR 248 at p. 265. See Act 2001; s 6(7), Anti-Money Australia, Sydney, Federation also Gould cit., para. 287. Laundering and Counter-Terrorism Press, 1997, p. 120; A. Twomey, 31 D. Meyerson, Rethinking the Financing Act 2006; ss 64(1), The Constitution of New South Constitutionality of Delegated 78(4), 81(4), Northern Territory Wales, Sydney, Federation Press, Legislation, in «Australian National Emergency Response Act 2004, pp. 203-204; G. Carney, Journal of Administrative Law», 2007; s 18C(1), Water Act 2007; ss The Constitutional Systems of the vol. 11, 2003, p. 45, at p. 46 118(5), 255(1), Personal Property Australian States and Territories, (hereafter Meyerson). Securities Act 2009; ss 14(3)(b), Cambridge, Cambridge University 32 For a Caribbean example of a 15(5)(b), 110, 123(5), 124(5), 326, Press, 2006, p. 342. more substantive notion of the 333(2)(b), National Consumer 22 Dignan cit., p. 101, pp. 119-21; abdication of legislative power, Credit Protection Act 2009. Crowe v Commonwealth (1935) 54 see J Astaphan & Co (1970) Ltd v 13 ss 44(3), 46(3), Northern Territory CLR 69 at p. 94 (hereafter Crowe); Dominica (Comptroller of Customs) National Emergency Response Australian Communist Party v (1996) 54 WIR 153 at pp. 157-159,
141 Directions
[1999] 2 LRC 569 at pp. 575-576. 47 ss 37, 75, 96(1), Interim 63 Waddell cit., DLR 270; Ontario 33 Viro v R (1978) 141 CLR 88 at p. Constitution of South Africa (1993). Public School Boards’ Association v 135; Nguyen v Nguyen (1990) The present Constitution effects Ontario (Attorney General) (1997) 169 CLR 245 at p. 269; Imbree v a similar vesting of powers: ss 151 DLR (4th) 346 at paras. McNeilly (2008) 236 CLR 510 at 43(a), 85(1), 165(1), Constitution 54-55, reversed on different para. 45. of South Africa (1996). grounds (1999) 123 OAC 143; 34 Pape v Federal Commissioner of 48 Executive Council of the Western 175 DLR (4th) 609; leave to Taxation (2009) 238 CLR 1 at p. Cape Legislature v President of the appeal refused [1999] 3 SCR 8, pp. 178-179, p. 320, p. 604; Republic of South Africa 1995 (4) v (hereafter Ontario); Greater Wurridjal v Commonwealth (2009) SA 877 at para. 51, [1995] ZACC 8 Essex County District School Board 237 CLR 309 at para. 86, para. (hereafter Executive Council). v International Brotherhood of 189, para. 287. 49 Ivi, para. 61. Electrical Workers, Local 773 (2007) 35 Coleman v Power (2004) 220 CLR 50 Ivi, para. 63. 83 OR (3d) 601 at paras. 76-78; 1 at para. 93, para. 196, para. 51 Ivi, para. 204. leave to appeal refused by Ont 211 (Lange test). The Court has 52 Arts 15.2.1, 28.2, 34.1, Constitution CA 23 May 2007; leave to appeal also signalled the possibility of a of Ireland (1937). refused [2007] 3 SCR ix. modification to a test for validity: 53 Art 15.2.1, Constitution of Ireland 64 Doucet-Boudreau v Nova Scotia Betfair Pty Ltd v Western Australia (1937). A somewhat similar (Minister of Education) [2003] (2008) 234 CLR 418 at paras. 85- provision appeared in Art 12, 3 SCR 3 at para. 33. However, 100 (freedom of interstate trade Constitution of the Irish Free State the Privy Council held that the (hereafter Betfair)). (1922). separation of judicial power did 36 Meyerson cit., p. 54. 54 Laurentiu v Minister of Justice not require an express vesting 37 Roach v Electoral Commissioner [1999] 4 IR 26 at p. 46, pp. 70- of power where pre-existing (2007) 233 CLR 162 at paras. 13- 71, pp. 83-44; Kennedy v Law courts were vested with that 19, paras. 100-101, paras. 163- Society of Ireland [2002] 2 IR 458 power prior to the adoption of 165; Betfair cit., paras. 33-48. at p. 486; Mulcreevy v Minister for the Constitution: Liyanage v R 38 Art I, s 1, Constitution of the United Environment [2004] 1 IR 72 at p. [1967] 1 AC 259 at pp. 286-288 States (1787). 87 (hereafter Mulcreevy). (hereafter Liyanage); Hinds v R 39 s 1, Commonwealth of Australia 55 Mulcreevy cit., p. 87. [1977] AC 195 at p. 213. Constitution (1900). 56 Harvey v Minister for Social Welfare 65 s 9, Constitution of Canada (1867). 40 Art II, s 1, cl 1; Art III, s 1, [1990] 2 IR 232 at p. 241. 66 Harvey v New Brunswick (Attorney Constitution of the United States 57 s 53, Credit Institutions General) [1996] 2 SCR 876 at (1787); ss 61, 71, Commonwealth (Stabilisation) Act 2010 (Ireland). para. 68; Mackin v New Brunswick of Australia Constitution (1900). In the lower house of parliament (Minister of Finance) [2002] 1 41 J W Hampton Jr & Co v United States the Opposition unsuccessfully SCR 405 at paras. 34-35, para. 276 US 394 at p. 409 (1928); attempted to amend this 69; Canada (House of Commons) Touby v United States 500 US 160 provision. See Parliamentary v Vaid [2005] 1 SCR 667 at para. at p. 165 (1991); Loving v United Debates. Dáil Éireann, 15 December 21, para. 34. For a criticism of States 517 US 748 at p. 771 (1996); 2010, pp. 389-390, pp. 430-431. this use of the preamble, see Whitman v American Trucking 58 See Art 26, Constitution of Ireland Singh v Canada [2000] 3 FC 185 at Associations Inc 531 US 457 at p. (1937). para. 28; leave to appeal refused 472 (2001). 59 Parliamentary Debates. Dáil [2000] 1 SCR xxii. 42 E. Chemerinsky, Constitutional Éireann, 27 May 2010, pp. 603- 67 MacMillan Bloedel Ltd v Simpson Law: Principles and Policies (2nd 604, p. 667. [1995] 4 SCR 725 at para. 52; ed.), New York, Aspen, 2002, p. 60 Re Gray (1918) 57 SCR 150 at p. Cooper v Canada (Human Rights 320. See Panama Refining Co v 157, p. 160, pp. 170-171, pp. 175- Commission) [1996] 3 SCR 854 at Ryan 293 US 388 at p. 430 (1935); 177; 42 DLR 1 at pp. 2-3, p. 5, pp. paras. 10-11; Reference re Secession A L A Schechter Poultry Corp v 11-13, pp. 16-17. of Quebec [1998] 2 SCR 217 at United States 295 US 495 at pp. 61 Reference re Regulations in Relation para. 15. 541-542 (1935). to Chemicals [1943] SCR 1 at p. 9, 68 Eg Brandy v Human Rights and 43 Clinton v City of New York 524 US p. 16, p. 33; [1943] 1 DLR 248 at p. Equal Opportunity Commission 417 at p. 436 (1998) (hereafter 253, p. 258, p. 275. (1995) 183 CLR 245 at p. 260, Clinton). 62 The case has been cited in pp. 268-270; Wilson v Minister 44 Art I, s 7, cl 2, Constitution of the passing: Friends of the Oldman for Aboriginal and Torres Strait United States (1787). River Society v Canada (Minister of Islander Affairs (1996) 189 CLR 1 45 Clinton cit., pp. 447-448. Transport) [1992] 1 SCR 3 at p. 38; at pp. 17-20. 46 Ivi, p. 438. 88 DLR (4th) 1 at p. 23. 69 Liyanage cit., p. 288 (in relation
142 Moens, Trone
to the United Kingdom). Rights [1985] 1 SCR 721 at p. Press, 1994, p. 7. 70 Pickin v British Railways Board 750; British Columbia v Imperial 88 Art 79(1), Constitution of Germany [1974] AC 765 at pp. 789-790; Tobacco Canada Ltd [2005] 2 SCR (1949). but cp R (Jackson) v Attorney- 473 at para. 57; British Columbia 89 Administrative Review Council, General [2006] 1 AC 262 at para. (Attorney General) v Christie Rule Making by Commonwealth 102, para. 120; [2005] UKHL [2007] 1 SCR 873 at para. 19. Agencies (Report No 35, 56; Haliburton v Broadcasting 82 B. McLachlin, Rules and Discretion Canberra: AGPS, 1992), para. Commission [1999] NZAR 233 at in the Governance of Canada, in 2.33; Meyerson cit., p. 52. p. 237; Shaw v Commissioner of «Saskatchewan Law Review», 90 Accident Compensation Corporation Inland Revenue [1999] 3 NZLR vol. 56, 1992, p. 167 at p. 169. v Donaldson [2009] NZCA 167 at 154 at para. 13; Westco Lagan Ltd 83 Workplace Relations Amendment para. 26. v Attorney-General [2001] 1 NZLR (Work Choices) Bill 2005, Bills 91 Reade v Smith [1959] NZLR 996 at 40 at para. 95. Digest n. 66, 2005-06, p. 117 pp. 1003-1004. 71 Commonwealth v Grunseit (1943) (hereafter Bills Digest). 92 Ontario cit., para. 50. 67 CLR 58 at p. 82. 84 Ivi, p. 117. 93 Ivi, para. 51. 72 Plaintiff M61/2010E v 85 Lord Rippon of Hexham, Henry 94 Ivi, para. 53. Commonwealth (2010) 243 CLR VIII Clauses, in «Statute Law 95 Lord Judge, Lord Mayor’s Dinner 319 at para. 56. This definition Review», vol. 10, 1989, p. 205 at for the Judiciary: Mansion House was also cited in Thomas v p. 206. Speech, 13 July 2010, p. 7. Mowbray (2007) 233 CLR 307 at 86 G.S. Lindell, Administrative Law: 96 s 4(1), Legislative Standards Act para. 71 (hereafter Thomas). Henry VIII Clauses, in «Australian 1992 (Qld). 73 Plaintiff S157/2002 cit., para. 101. Law Journal», vol. 78, 2004, p. 97 s 4(2), Legislative Standards Act 74 Ivi, para. 102. An argument 221 at p. 223; Ng cit., pp. 228- 1992 (Qld). based upon this approach was 229. On an ad hoc basis the 98 s 4(4)(c), Legislative Standards Act rejected in New South Wales v Attorney-General’s Department 1992 (Qld). See also s 4(5)(d). Commonwealth (2006) 229 CLR 1 has incorporated statutory 99 Scrutiny of Legislation at paras. 400 ff. amendments made by regulation Committee, The Use of ‘Henry VIII 75 See also Ng cit., p. 222, pp. 224- into the reprints of some Clauses’ in Queensland Legislation, 225, p. 228. principal Acts. However, the Brisbane, Legislative Assembly of 76 Communist Party cit., p. 193; texts of such amendments appear Queensland, 1997, para. 1.27. APLA Ltd v Legal Services Commis- in a table at the end of the Act and sioner (NSW) (2005) 224 CLR 322 are not incorporated alongside at para. 30; Thomas cit., para. 61; the affected provisions, where South Australia v Totani (2010) they would most readily come 242 CLR 1 at para. 61, para. 131, to the attention of readers. See paras. 232-233, para. 423; Rowe v Bankruptcy Act 1966 (Repr 30 Electoral Commissioner (2010) 243 January 2012, C2012C00173), p. CLR 1 at para. 120. 67, p. 619; Patents Act 1990 (Repr 77 s 75(v), Commonwealth of 3 May 2012, C2012C00423), Australia Constitution (1900). p. 34, p. 250; Life Insurance 78 Re Minister for Immigration and Act 1995 (Repr 27 March Multicultural Affairs; Ex parte 2012, C2012C00334), p. 283. Miah (2001) 206 CLR 57 at para. The modified provisions are 208; Re Patterson; Ex parte Taylor annotated with the statement (2001) 207 CLR 391 at para. 64, “see Table B” without indicating para. 321; Plaintiff S157/2002 cit., that their operation has been para. 5, para. 103; British Ameri- modified. The Notes to the can Tobacco Australia Ltd v Western Trade Marks Act 1995 merely Australia (2003) 217 CLR 30 at state that the Act has been para. 113. modified by the Regulations, 79 M. Gleeson, The Rule of Law and but those “modifications the Constitution, Sydney, ABC are not incorporated in this Books, 2000, pp. 67-68. compilation” (Repr 30 January 80 MZXOT v Minister for Immigration 2012, C2012C00161), p. 175. and Citizenship (2008) 233 CLR 87 D.P. Currie, The Constitution of 601 at para. 39, para. 171. the Federal Republic of Germany, 81 Reference re Manitoba Language Chicago, University of Chicago
143
Australian State Courts and Chapter III of the Commonwealth Constitution – Interpretation and Re-Interpretation and the Creation of Aus- tralian Constitutional “Orthodoxy”
sarah murray
Introduction framing of the role of the “Courts of a State” in the Commonwealth Constitution (the In his classic novel, Nineteen Eighty-Four, Constitution) by Australia’s constitutional George Orwell wrote that “[o]rthodoxy founders in the 1890s and in early inter- means not thinking--not needing to think. pretations by the High Court of Australia. Orthodoxy is unconsciousness”1. Applied Part 2 explores the seismic decision of Ka- to constitutional interpretation or consti- ble, the implications of its radical interpre- tutional reasoning this seems almost para- tation of Chapter III and the track-record doxical as constitutional exegesis is typically of subsequent challenges to the decision. associated with logical, articulate, black-let- Part 3 reflects on the High Court’s imbuing ter thinking. However, it is clear that as con- of new meaning into key state constitu- stitutional principles or approaches become tional phrases in Chapter III and how these generally well-accepted, or orthodox, they have risen into the Australian constitution- can become so habitual and sometimes un- al consciousness. thinkingly applied as to shift into a state of constitutional unconsciousness. This, of course, does not mean that concepts cannot be contested, but that assailing them re- Part 1 quires a degree of iconoclasm. 1.1. History and Constitutional Framing of This paper will explore the process by State Courts which constitutional readings relating to State courts within the Australian federa- In the drafting of the first three chapters tion have been interpreted and re-inter- (Chs I, II and III) of Australia’s Common- preted. Part 1 will reflect on the historical wealth Constitution in the 1890s, the in- giornale di storia costituzionale / journal of constitutional history 24 / II 2012 145 Directions dependence and separation of the federal tinued to recognise the constitutional in- judiciary from the legislative and executive dependence of the “court[s] of a State”8. In governmental arms was almost received Le Mesurier v Connor Knox CJ, Rich and Dix- wisdom2. The High Court was conceived by on JJ explained that9: the framers as the “bedrock” of this inde- 3 The Parliament may create Federal Courts, and pendent federal judicial structure . over them and their organization it has ample Australian State courts, unlike in the power. But the Courts of a State are the judicial United States4, were to be vested with fed- organs of another Government. They are created eral jurisdiction by the Commonwealth Con- by State law; their existence depends upon State stitution for “economical” reasons5. Sec- law. tions 71 and 77(iii) contemplate this vesting Although s 77(iii) allowed federal ju- in State courts with the latter providing that risdiction to be vested in such courts, this the Commonwealth Parliament can make did not mean that the Commonwealth laws “investing any court of a State with Parliament was able to “affect or alter the federal jurisdiction”. This unique attribute constitution of the Court itself”10. Even 50 of Australia’s judicial system has come to be years later Mason J confirmed in the Hospi- 6 known as the “autochthonous expedient” . tal Contribution Fund case that State parlia- Whilst the autochthonous expedi- ments have the “legislative competence to ent gives State courts a role to play within alter the structure and organization of State the integrated national court structure, Courts”11. His Honour continued that12: the “court[s] of a State” were regarded as self-governing institutions within what was Chapter III of the Constitution contains no pro- traditionally the colonies’ domain. State vision which restricts the legislative competence of the States in this respect. Nor does it make any legislatures and State constitutions were discernible attempt to regulate the composition, therefore able to independently regulate structure or organization of the Supreme Courts the operation of the State courts and the as appropriate vehicles for the exercise of invest- appointment of State judges. Consistently ed federal jurisdiction. with this, Sir William Downer referred at At the State level this position was af- the 1898 Melbourne Constitutional Con- firmed. In S (A Child), the Supreme Court vention to the fact that the “the Federation of Western Australia rejected an argument has no control over the state courts, and no 7 that any implied federal constitutional right to dictate to the state courts” . limit, or s 106 in the Commonwealth Con- stitution, could invalidate a State law which empowered the Supreme Court of West- ern Australia to keep a juvenile in prison 1.2. Attempts to Re-Frame the Interpretation after the conclusion of the juvenile’s term of State Courts of imprisonment13. This meant that cou- pled with the consistent recognition of the For nearly 100 years the High Court of Aus- absence of a separation of power in State tralia did not impose significant federal constitutions14, State parliaments were limits on State legislation regulating courts granted considerable legislative freedom within the State court hierarchy and con- in relation to the operations of their courts.
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Part 2 State judicial power… It is axiomatic that neither the Commonwealth nor a State can legislate in a 2.1. The Earthquake of Kable way that might alter or undermine the constitu- tional scheme set up by Ch III of the Constitu- The well-established constitutional po- tion… Because the State courts are an integral sition of State courts was shattered by the and equal part of the judicial system set up by Ch High Court in Kable15. This iconoclastic de- III, it also follows that no State or federal parlia- ment can legislate in a way that might undermine cision departed from what had, for nearly a the role of those courts as repositories of federal century, been accepted constitutional doc- judicial power. trine, namely that the Constitution did not impede legislation regulating State courts. For Brennan CJ and Dawson J in dissent, It did not find that Australian State courts the majority’s approach represented a too are subject to a formal separation of pow- radical interpretation of Chapter III of the ers, like Australian federal courts. Howev- Constitution. Brennan CJ contended that er, the decision was a significant foil to the there was no “textual or structural foun- relative sovereignty of parliaments of the dation for the submission” of the plain- State. tiff and that it is well-established that the Kable concluded that, even without a Commonwealth Parliament must take State 19 separation of powers doctrine, the New courts as it finds them . His Honour fur- South Wales Parliament could not empow- ther indicated that should such limitations er the State’s Supreme Court to order the apply to State courts then it would “surely ongoing preventative detention of Grego- have provoked debate” amongst the fram- 20 ry Wayne Kable, on an ad hominem basis, ers in the 1890s . Dawson J agreed. He after the conclusion of his sentence. A ma- concluded that Chapter III did not require jority of the High Court concluded that such State courts to take on the attributes of fed- 21 State legislation was incompatible with the eral courts , when the Constitution con- 22 Constitution as it undermined the integrat- ceived them as “existing institutions” . ed Australian court system and the ability The fretfulness caused by the decision of the New South Wales Supreme Court to cannot be underplayed. The late Professor continue to be vested with Commonwealth George Winterton referred to it as having judicial power under s 77(iii) of the Consti- “enormous implications” which the States 23 tution16. The order thwarted this ability by were powerless to stop . Its significance compromising “public confidence in the stemmed from what Dawson J described impartial administration of the judicial as rendering “a quasi-separation of pow- functions of the Supreme Court” through ers” for the Australian States, in spite of the making the court appear as no more than fact that the High Court had consistently an instrument of government policy17. As shied away from this finding in the past. McHugh J explained18: For Winterton, the majority’s position was unpersuasive24. He concluded that the State courts have a status and a role that extends Commonwealth Constitution does not force beyond their status and role as part of the State judicial systems. They are part of an integrated the Commonwealth Parliament to vest ju- system of State and federal courts and organs for risdiction in a State court which is not fit to the exercise of federal judicial power as well as act as a repository, that the Supreme Court
147 Directions of New South Wales had, in fact, been suf- ful did result in considerable refinement ficiently independent to refuse to renew of the newfound doctrine. First, the High Kable’s detention order25 and that it was Court clarified that the principle in Kable more appropriate that the courts undertake did not mean that State courts are required the functions contemplated by the Com- to operate in accordance with federal court munity Protection Act 1994 (NSW) than such stringencies. Rather, the Constitution im- roles being administered by the executive poses on State courts some limits while alone26. The criticism of the decision was allowing greater flexibility than are possi- not reserved to the academy and it has been ble within the federal court hierarchy. The noted that sitting and future members of upshot of this greater legislative freedom the High Court also received it unwelcome- at the State level is that if a function would ly27. be considered constitutional at the federal Remarkably, and contrary to predic- level its constitutional acceptability at the tions, the aftershocks of Kable were hardly State level is likely to be assured39. felt at all. Consistently, the High Court re- Second, the High Court has come to fused to re-apply the decision’s reasoning. denounce the assumption, drawn from The facts in Kable were repeatedly cited as the majority judgments in Kable, that the 28 “exceptional” and “unlikely to be repeat- constitutional test to be applied is the im- 29 ed” such that cases such as Fardon v At- pact of a law on public confidence40. In its 30 torney-General for the State of Queensland , place, the High Court emphasised that the Forge v Australian Securities and Investment impact of state legislation on “institution- 31 Commission , Gypsy Jokers Motorcycle Club al integrity” is the appropriate gauge41. For 32 Incorporated v Commissioner of Police example, in Fardon, Gummow J referred and K-Generation Pty Ltd v Liquor Licensing to “repugnancy to or incompatibility with 33 Court saw appeals on Kable grounds fail. that institutional integrity of the State 34 In Fardon, McHugh J explained : courts which bespeaks their constitution- Kable is a decision of very limited application. ally mandated position in the Australian That is not surprising. One would not expect the legal system”42. In the same case Gleeson States to legislate, whether by accident or design, CJ referred to the State legislation as inva- in a manner that would compromise the institu- lid if it bestows on a State court “a function tional integrity of their courts. which substantially impairs its institution- The constitutional reality of this was al integrity” so as to be “incompatible with captured by Kirby J’s reference to Kable as its role as a repository of federal jurisdic- “the constitutional guard-dog that would tion”43. “Institutional integrity”, a phrase bark but once”35. Ever since, this canine initially used by the United States Supreme allusion has become the almost trite way of Court44, has therefore become the key State referring to the decision36. With some rare constitutional criterion, with the focus be- exceptions37, courts within the State court ing on whether a State law substantially hierarchy were also very reticent to hear the impairs a State court’s institutional integ- dog bark again38. rity so as to compromise the investiture of Subsequent attempts to apply Kable pri- federal judicial power in that body. This or to 2009, although ultimately unsuccess- criterion ultimately operates to qualify the
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A drawing of the building of the Supreme Court of Victoria. The Court was established by an Act of the Victorian Parliament in 1852. (Source: Supreme Court of Victoria)
general principle that the Commonwealth acteristics which mark a court apart from other Parliament, in investing its jurisdiction, decision-making bodies. 45 It is neither possible nor profitable to attempt must take a State court “as it finds it” . to make some single all-embracing statement The concept of “institutional integrity” of the defining characteristics of a court. The has not, however, been uniformly or defin- cases concerning identification of judicial pow- itively described. Nevertheless, the courts er reveal why that is so. An important element, have tended to relate it to the fundamental however, in the institutional characteristics of courts in Australia is their capacity to administer attributes of a court and particularly to the the common law system of adversarial trial. Es- retention of a State court’s “institution- sential to that system is the conduct of trial by an al independence” and “integrity”46. For independent and impartial tribunal. example, in Forge, Gummow, Hayne and Crennan JJ explained, in relation to “insti- Third, after Kable, there was some doubt tutional integrity”, that47: about whether a State court had to be in the process of exercising federal jurisdiction the relevant principle is one which hinges upon for the doctrine to apply48. It now seems maintenance of the defining characteristics of a clear that it applies if the court is capable of ‘court’, or in cases concerning a Supreme Court, the defining characteristics of a State Supreme exercising federal jurisdiction even if it is Court. It is to those characteristics that the ref- not actually being exercised by the court at erence to ‘institutional integrity’ alludes. That that particular point in time49. is, if the institutional integrity of a court is dis- Fourth, K-Generation has clarified that a torted, it is because the body no longer exhibits body does not cease to be a “court of a State” in some relevant respect those defining char-
149 Directions if its institutional integrity is called into that the doctrine was again resuscitated to question50. In that case, Queensland and invalidate functions conferred by State leg- Western Australia quite shrewdly submit- islation on a State court. ted that, while not applicable to a Supreme Court, if the Licensing Court was constitu- tionally tainted by the functions conferred upon it by the Liquor Licensing Act 1997 (SA), 2.2. Kable – Alive and Kicking? it would simply cease to be a “court of a State” capable of being a repository of fed- In 2008, French CJ became the Chief Jus- eral jurisdiction under s 77(iii) of the Con- tice of the High Court, following Gleeson stitution. This submission was rejected on CJ’s retirement. In the next year, Interna- the basis that it would subvert s 77(iii) and tional Finance Trust55 heralded, for the first 51 render the “Kable principle impotent” . time, an increased willingness by the High The outcome of this approach was that “the Court to apply Kable, this time in the con- States may not establish a ‘court of a State’ text of New South Wales assets forfeiture within the constitutional description and legislation which applied to those suspect- deprive it, whether when established or ed of serious criminal activity. The legis- subsequently, of those minimum charac- lation was struck down by a majority of the teristics of […] institutional independ- Court as “repugnant to the judicial process 52 ence and impartiality” . Consequently, a in a fundamental degree”56 because it could court vested with incompatible functions require the Supreme Court to hear an ap- “retains its character as a ‘court of a State’” plication ex parte. Soon after, the principle capable of being vested with federal juris- was again resuscitated in Totani57. By 6:1, diction but the legislation vesting those in- the High Court found s 14 of the Serious and compatible functions is invalidated. Organised Crime (Control) Act 2008 (SA) was In spite of its rarity of application, the substantially incompatible with the South Kable principle continued to exist in con- Australian Magistrate Court’s institutional stitutional consciousness. The High Court integrity and placement within the inte- refrained from overruling it and was not grated court structure. It was in this case requested to do so53. Meagher comment- that French CJ also clearly began to map out ed that, whatever reservations one might his “list” of the “defining characteristics” formulate there was little “sense” in calling of State courts including “independence, for a “a reconsideration of the correctness impartiality, fairness and adherence to the of the Kable principle” as it has become “a open-court principle”58. settled feature of Australian constitutional The principles in Kable were further law” and even failed attempts to re-activate built upon, albeit silently59, in the deci- the decision still sanctioned it54. Appeals to sion in Kirk Industrial Relations Commission the Court continued, albeit courageously, of New South Wales60. In Kirk it was deter- to present arguments calling for State leg- mined that, by virtue of s 73 of the Constitu- islation to be struck down in Kable grounds. tion, Parliaments could not deprive a State It was not, however, until French CJ’s ap- of a Supreme Court, or, remove a Supreme pointment to the position of Chief Justice Court’s ability to review and provide re-
150 Murray lief for decisions tainted by jurisdiction- The term ‘institutional integrity’, applied to a al error. The joint judgment of French CJ, court, refers to its possession of the defining or Gummow, Hayne, Crennan, Kiefel and Bell essential characteristics of a court. Those charac- teristics include the reality and appearance of the JJ argued that not only does s 73 require an court’s independence and its impartiality. Other avenue of appeal from Supreme Courts to defining characteristics are the application of the High Court (subject to exceptions en- procedural fairness and adherence, as a general acted by the Commonwealth Parliament) rule, to the open court principle. As explained but also the continuation of the “Supreme later, it is also a defining characteristic of a court that it generally gives reasons for its decisions. In Courts” as institutions which retain the es- the case of the Supreme Courts of the States, that sence of what a “Supreme Court” necessi- characteristic has a constitutional dimension by tates61. Accordingly, the Supreme Courts’ reason of the appellate jurisdiction conferred on supervisory jurisdiction for jurisdictional this Court by s 73 of the Constitution. error was determined to be unassailable The continuity of the Kable principle was as it amounted to a “defining characteris- again solidified in a significant High Court tic” of a “Supreme Court of a State”62. This case on the constitutionality of the Victo- conclusion was based on the historical sta- rian statutory rights charter (the Charter of tus of such Courts prior to federation63 but Human Rights and Responsibilities Act 2006 is probably more readily explainable by (Vic)), Momcilovic v The Queen69. the nature of the integrated constitutional and court system developed in Kable64. For Ultimately, under the current High example, in Kable McHugh J commented Court approach, the role of a State court as that65: a “court” referred to in Chapter III operates as a limiting factor. Certainly, State courts a State law that prevented a right of appeal to the can adapt to new circumstances and reform Supreme Court from, or a review of, a decision agendas but there are, by virtue of Chapter of an inferior State court, however described, would seem inconsistent with the principle ex- III, “limits upon permissible departures pressed in s 73 and the integrated system of State from the basic character and methodolo- and federal courts that covering cl 5 and Ch III gies of a court”70. Further, French CJ has envisages. recently indicated that it is not necessar- While, in Hogan v Hinch66, the success- ily possible to argue that these departures ful Kable run stalled. Kable’s re-emergence are “confined” or “limited” in nature when these can combine to result in the “death of continued in Wainohu where a six judge 71 High Court majority invalidated organised the judicial function by a thousand cuts” . crime legislation as compromising the in- stitutional integrity of New South Wales Su- preme Court67. The impugned legislation, the Crimes (Criminal Organisations Control) Part 3 Act 2009 (NSW), conferred administrative 3.1. Reflections on the imbuing ofmeaning to powers on Supreme Court judges without “Court of a State” requiring reasons to be given in relation to the exercise of those powers. French CJ and There are two apparent aspects to the cre- Kiefel J commented that68: ation of constitutional orthodoxy. First,
151 Directions the establishment by a court of a doctrine legislative power of a State so to alter the con- or principle. Second, the widespread ac- stitution or character of its Supreme Court that ceptance of that doctrine as a durable, le- it ceases to meet the constitutional description’. gitimate and convincing statement of legal The High Court’s shift towards a focus on principle. It is the latter which has proven the meaning of the constitutional phrase, the most interesting in the refinement of “court” was not entirely unexpected. Win- Kable. terton impliedly predicted this shift back The post-2009 rejuvenation of Kable in 2002 in highlighting that the Common- has coincided with much greater emphasis wealth Parliament could decide in which upon the text of Chapter III of the Constitu- State bodies it vested its power, “provided, tion. This move began with the shift in lan- of course, that the State body in which ju- guage after Kable from “public confidence” risdiction is to be vested is sufficiently ju- to “institutional integrity” and has become dicial to be characterised as a ‘court’ within much more closely tethered to Chapter III Ch III of the Constitution”75. Similarly, the phrases such as “court of a State” in s 77(iii) Court is, as earlier favoured by Meagher, or “Supreme Court of any State” in s 73(ii). drawing upon comments made by Dawson J Chief Justice Spigelman, as he then was, in dissent in Kable that s 77(iii) “treats State has noted that this textual focus is particu- courts as existing institutions… so long as larly evident in Kirk where the Court has they are in fact courts”76. Meagher77 also sought to instil substantive constitutional linked this with comments made by the content or essential characteristics in such majority judges in Kable concerning the constitutional phrases72. His Honour ex- “identity” of a body as a “court”78 and the plained that73: “constitutional expression” of a “Supreme 79 the contemporary jurisprudence of the court Court” in s 73 . exhibits a proclivity to clearly anchor signifi- It is submitted that, while such an ap- cant constitutional developments in the text and proach does not necessarily draw a clear or structure of the Constitution. The concept of a definitive boundary around what amounts ‘constitutional expression’ provides a textual to a “court”, it provides a conceptual tool basis for and, therefore, an aura of orthodoxy to, significant changes in constitutional juris- which can be fleshed out on the basis of prudence. That aura dissipates when the court the surrounding constitutional provi- undertakes the unavoidably creative task of in- sions in Chapter III and how these inter- stilling substantive content to the constitution- play with the curial role. This ensures that al dimension of a constitutional expression by the attributes identified derive from the identifying its ‘essential’ features or character- istics. Constitution’s text and structure as ‘a start- ing point’80, rather than being entirely The accuracy of this is evident. In Kirk, ‘free-standing’81. While the High Court has quoting Forge, the majority note that it is indicated that the core characteristics of a imperative74: ‘court’ cannot be exhaustively set down82 it has accepted that some fundamental curial to take account of the requirement of Ch III of the Constitution that there be a body fitting the attributes flow from the constitutional ex- description ‘the Supreme Court of a State’, and pectations and functions conferred on the the constitutional corollary that ‘it is beyond the judicature.
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The Court has also brought the focus to the Commonwealth Constitution’s formula- State courts’ constitutionally contemplat- tion is also evident in other constitutional ed role within the wider Australian court provisions such as ss 106, 108 and covering structure. This is evident within s 73(iii)’s clause 5. His Honour stated87: reference to an appellate pathway from Su- The absence of an entrenched doctrine of sep- preme Courts to the High Court as well as ss aration of powers under the constitutions of the 71 and 77(iii)’s express reference to federal States at Federation and thereafter does not de- judicial power being vested in sub-national tract from the acceptance at Federation and the courts. continuation today of independence, impartiali- Further, the Court has increasingly ty, fairness and openness as essential character- istics of the courts of the States. Nor does the un- sought to ground its constitutional reason- doubted power of State Parliaments to determine ing in this context in history to try to avoid the constitution and organisation of State courts the perceived “creativity” eluded to by Chief detract from the continuation of those essential Justice Spigelman. In Kirk, although heavi- characteristics. It is possible to have organisa- ly criticised, the majority argued that, “[t] tional diversity across the Federation without compromising the fundamental requirements of he supervisory jurisdiction of the Supreme a judicial system. Courts was at federation, and remains, the mechanism for the determination and the Similarly, in Kirk, the joint judgment enforcement of the limits on the exercise of French CJ, Gummow, Hayne, Crennan, of State executive and judicial power”83. In Kiefel and Bell JJ relied heavily on the char- Totani¸ French CJ stated that the84: acteristics of a “Supreme Court of a State” at federation which State parliaments were Ch III of the Constitution rests upon assumptions about the continuing existence and essential not able to stray from, most notably their characteristics of State courts as part of a nation- ability to review decisions on the ground of al judicial system and the implications that this jurisdictional error88. Court has drawn from those assumptions. The In the context of United States’ consti- assumptions are historical realities and not the tutional jurisprudence, Kahn and Kersch product of judicial implication. have referred to the “backward-looking, His Honour sought to connect this “as- after-constructed ‘constitutive stories’ of sumption” with the Framers’ conceptions constitutional development” as an “impor- pre and post-Federation85, these included tant form of constitutional construction”89. the “rule of law”, the competence assumed However, the authors do not see this con- by ss 71 and 77(iii) of State courts as re- structive process as one undertaken by the positories of federal jurisdiction and that courts alone. Instead, they refer to the role the State judiciary “continue to bear the of the “interpretive community” as “an ac- defining characteristics of courts and, in tive participant in the process of construct- particular, the characteristics of independ- ing authoritative constitutional stories”90. ence, impartiality, fairness and adher- The process is an ongoing and organic one ence to the open-court principle”. These which is “taken into the interpretive and characteristics do not however amount to advocacy community, to be accepted, con- a closed list86. The Chief Justice makes it tested, or reworked”91. Further, the pro- clear that retention of these assumptions in cess cannot be considered without an ap-
153 Directions preciation of the “Court’s unique needs as stitutional focus upon the text and phrases an institution”92. such as “court of a State” and “Supreme Kahn and Kersch’s work is highly rele- Court of a State” is particularly beneficial vant in the Australian constitutional setting because it allows the identity and charac- of Kable. In the Kable context the “inter- teristics of courts to develop such that cer- pretive community” is a rich one; judges, tain functions, such as criminal determi- barristers, academics, students, politi- nations, have instead begun to be classed cians and other government actors and the as reserved for curial exercise95. What is public at large. For the courts the question evident is that the creation of constitution- is how their fashioning of constitutional al orthodoxy is being influenced by and is doctrine can resonate with the interpretive influencing the relationship of the courts community. This is particularly pertinent with the other branches of government96. in the Chapter III context when there is The process is delicate and dynamic and is the potential for constitutional doctrine to an inevitable part of the creation of consti- be perceived as self-interested and as “the tutional consciousness. courts protecting the courts”. It is submitted that, criticisms aside, The Kable principle, in applying a qua- the ‘interpretive community’ at the time of si-separation of powers principle to State Kable were well placed to receive the High courts, and in turn restricting the sover- Court’s new interpretation of Chapter III. eignty of State Parliaments, is prone to a There are three key reasons for this. First, criticism of feather-bedding and as being the legal community had consistently failed strategically self-determining. A focus to find alternative constitutional means by upon interpreting the constitutional text which to restrict the activity of State legisla- within a historical and broader constitu- tures. The absence of a separation of powers tional context defends the Court to some within State constitutions had been con- extent from criticisms of arbitrariness by sistently re-affirmed and the restrictions mooring it within the Commonwealth Con- that trickled down from the Commonwealth stitution, and within Spigelman’s “aura of Constitution, such as ss 92 or 109 were not orthodoxy”93. Ironically though, through broadly applicable. Kable’s potential lim- interpreting the text, it also has the poten- it on State parliamentary sovereignty was tial to provide the Court with some malle- therefore able to very quickly capture the ability to continue to shape constitutional profession’s constitutional imagination. doctrine. Second, the persuasive influence of For example, take the risk in the State counsel in Kable, Sir Maurice Byers QC, sphere that, if courts become too prescrip- cannot be ignored. Byers had ‘penned’ and tive, State legislatures will choose to confer eloquently made the argument in Australi- functions on non-curial bodies instead an Capital Television Pty Ltd v Commonwealth and vest “dangerous” functions in the ex- “which… in a slightly edited form”97 be- ecutive, away from unwanted interference came the focus of the High Court’s “dis- by the courts. In earlier cases, like Fardon, covery” of an implied freedom of politi- the constitutionality of this was accepted cal communication in the Commonwealth by members of the High Court94. The con- Constitution in 1992. Byers’ innovative ar-
154 Murray gument in Kable was made to the Court at gressive re-interpretation of the principle a point when the barrister’s “influence… by the Court, and emphasis upon essential was at its height”98. His submission in Ka- characteristics of a court as relevant to its ble, very much resembles the approach now institutional integrity, have meant that the taken by the Court nearly 16 years later99: essence of Kable has been more readily ap- plied by the Court in recent years, particu- Chapter III of the Constitution applied to State courts from 1 January 1901; they were impressed larly when, like in Kable, the State court’s with the characteristics necessary for the pos- independent judicial role is compromised session and exercise of Commonwealth judicial by becoming a mere puppet of the executive power. No legislature, State or federal, might or legislative arms. impose on them jurisdiction incompatible with the exercise of that judicial power. Nor could it control the manner of the exercise of judicial power whether conferred by the Commonwealth or States. Since Ch III envisages State courts as Conclusion being capable of investiture with and exercise of the judicial power of the Commonwealth, it grants to them or prevents their deprivation of The Kable principle has become an accept- those characteristics required of recipients of ed part of the Australian constitutional or- that power. A State law which controlled the State thodoxy. The process of interpretation and court in the exercise of jurisdiction granted by re-interpretation of the principle has been the State is invalid if it is inconsistent with the an iterative constitutional “story” by which court’s possession of the constitutional charac- teristics. the initial ratio decidendi and reasoning has been re-imagined and re-fashioned as Third, the legal abhorrence of the leg- new factual scenarios have been present- islation encountered in Kable also played ed to the High Court. The Kable principle’s a significant part. Section 3(3) of the Com- journey is incomplete and the Court’s tools munity Protection Act 1994 (NSW) contained of “institutional integrity” and “essential the extraordinary ad hominem provision curial characteristics” provide sufficient that ‘This Act authorises the making of a malleability to allow the concept to evolve detention order against Gregory Wayne Ka- further through an ongoing dialogue with ble and does not authorise the making of a the legal profession, the academy, the com- detention order against any other person’. munity and the other governmental arms. Kable was to be preventatively detained by As Kahn and Kersch explain, the shape the Court beyond the end of his sentence of the doctrine is not set purely by the con- without being found guilty of further crimi- stitutional text, and although this is be- nal conduct. The High Court, although em- ing increasingly relied upon by the Court, phasising the rarity of such an enactment, different available interpretations mean were going to be more inclined to accept pi- that the ultimate principle is collabora- oneering arguments so as to find a means to tively “built” by influences both “inside invalidate it. Certainly, the exceptional na- and outside the Court”100. The acceptance ture of the legislation in Kable made it more or legitimacy of this process is determined difficult for the facts in subsequent cases by a number of factors. However, the High to approach its severity. However, the pro- Court has to find ways to respond to de-
155 Directions velopments within the executive or leg- stitutional line in the sand for State legis- islative arms, while retaining legitimacy lation, by reconceptualising the import of and not being accused of jeopardising the Chapter III of the Constitution and its im- democratic process through overly inter- plications for the operations of ‘courts of a ventionist forms of judicial review101. Ka- State’. ble provides an interesting example of this dynamic process, by which the Court has institutionalised a means of drawing a con-
1 George Orwell, Nineteen Eighty- Melbourne, 28 January 1898, p. Prosecutions (1996) 189 CLR 51. Four, Pt 1, Ch 5, London, Penguin 276. 16 The majority comprised Books, 1949, p. 46. 8 The King v Murray; Ex Parte the Gaudron, McHugh, Gummow 2 Official Report of the National Commonwealth (1916) 22 CLR and Toohey JJ with Dawson and Australasian Convention Debates, 437, p. 452, per Isaacs J. Brennan CJ dissenting. Sydney, 11 March 1891, p. 257 9 (1929) 42 CLR 481, p. 495. 17 Ivi, p. 107 per Gaudron J, p. (Inglis Clark); Official Record of 10 Ivi p. 496. See also Kotsis v 124 per McHugh J, p. 133 per the Debates of the Australasian Kotsis (1970) 122 CLR 69, p. 88 Gummow J. Federal Convention, Melbourne, per Menzies J, 109, per Gibbs 18 Ivi, pp. 114-116. 28 January 1898, p. 268 (Edmund J. Gibbs J although in dissent 19 Ivi, p. 67. Barton); Official Record of the in Kotsis was later accepted 20 Ivi, p. 68. Debates of the Australasian as correct in Commonwealth v 21 Ivi, p. 80. Federal Convention, Melbourne, Hospital Contribution Fund of 22 Ivi, p. 83. 31 January 1898, p. 313 (Charles Australia (1982) 150 CLR 49. 23 B. Lane, Separation of Powers for Kingston); 1 February 1898, 11 Commonwealth v Hospital States Inevitable, The Australian, p. 363 (Josiah Symon), p. 371 Contribution Fund of Australia 17 September 1996, p. 6. (William McMillan), pp. 365- (1982) 150 CLR 49, p. 61. 24 See also D. Meagher, The Status 366 (Bernhard Wise). 12 Ibidem. See also 56-57 (Gibbs of the Kable Principle in Australian 3 Official Report of the National CJ). See also L. Zines, The High Constitutional Law, in «Public Australasian Convention Debates, Court and the Constitution (5th Law Review», vol. 16, 2005, pp. Adelaide, 20 April 1897, p. 950 ed.), Sydney, Federation Press, 182, at p. 183. (Josiah Symon); Official Record p. 268. 25 See eg, Kable v Director of Public of the Debates of the Australasian 13 (1995) 12 WAR 392. Prosecutions (1996) 189 CLR 51, p. Federal Convention, Melbourne, 14 JD & WG Nicholas v Western 64 per Brennan CJ. 31 January 1898, p. 343 (Josiah Australia [1972] WAR 168, p. 26 G. Winterton, Justice Kirby’s Symon). 173, per Jackson CJ, p. 175, per Coda in Durham, in «Public Law 4 J. Quick and R.R. Garran, The Burt J; Gilbertson v South Australia Review», vol. 13, pp. 165-168. Annotated Constitution of the (1976) 15 SASR 66, p. 85, per 27 H.P. Lee, The Kable Case: A Australian Commonwealth Part Bray CJ; Building Construction Guard-Dog that Barked But Once?, 2 (1901), Kessinger Legacy Employees and Builders’ Labourers in G. Winterton (edited by), Reprints, p. 727. Federation of New South Wales v State Constitutional Landmarks, 5 South Australia v Totani (2010) 85 Minister for Industrial Relations Sydney, The Federation Press, ALJR 19, pp. 48-50, per French (1986) 7 NSWLR 372, p. 381, 2006, pp. 390, 411 referring CJ. per Street CJ, p. 400, p. 401 per to Callinan J in APLA Ltd v Legal 6 R v Kirby: Ex parte Boilermakers’ Kirby P, p. 412 per Mahoney Service Commissioner (NSW), Society of Australia (1956) 94 JA; City of Collingwood v Victoria 2005, p. 469; R v Moffatt (1997) 91 CLR 254, p. 268, per Dixon CJ, (No 2) [1994] 1 VR 652, p. 663 A Crim R 557, p. 577 (Hayne JA, as McTiernan, Fullager and Kitto JJ. (Brooking J, Southwell and he then was). 7 Official Record of the Debates of the Teague JJ agreeing). 28 Kable v Director of Public Australasian Federal Convention, 15 Kable v Director of Public Prosecutions (1996) 189 CLR
156 Murray
51, p. 134 per Gummow J, p. 98 J; Forge v Australian Securities State Courts: The Limits of Kable, per Toohey J; Fardon v Attorney- Investments Commission (2006) in «Sydney Law Review», vol. General (Qld) (2004) 223 CLR 228 CLR 45, p. 194 per Kirby J; 20, 1998, p. 214 at p. 227; Carney, 575, p. 33, p. 37 (McHugh J), p. South Australia v Totani (2010) 85 The Constitutional Systems of the 144 per Kirby J. ALJR 19, p. 73 per French CJ. Australian States and Territories 29 Fardon v Attorney-General (Qld) 41 G. Carney, The Constitutional cit., p. 356. (2004) 223 CLR 575, p. 43, per Systems of the Australian States 50 K-Generation Pty Ltd v Liquor Li- McHugh J. and Territories, Melbourne, censing Court (2009) 237 CLR 30 (2004) 223 CLR 575. Cambridge University Press 501, p. 99 per French CJ, p. 154 31 (2006) 228 CLR 45. 2006, p. 250. per McHugh, Gummow, Kirby, 32 (2008) 234 CLR 532. 42 Fardon v Attorney-General for the Hayne, Callinan and Heydon JJ, 33 (2009) 237 CLR 501. State of Queensland (2004) 223 pp. 236-244 per Kirby J. 34 Fardon v Attorney-General (Qld) CLR 575, p. 101. 51 Ibidem. (2004) 223 CLR 575, p. 43. 43 Ivi, p. 15. 52 Ivi,p. 53 per McHugh, Gummow, 35 Baker v The Queen (2004) 223 CLR 44 Commodity Futures Trading Kirby, Hayne, Callinan and Hey- 513, p. 54 per Kirby J. Commission v Schor 478 US 833, p. don JJ. See also p. 99 per French 36 See eg, Transcript of Proceed- 851 (1986). CJ and pp. 236-237, p. 243 per ings, Forge v ASIC [2006] HCA- 45 Kable v Director of Public Kirby J. Trans 25 (8 February 2006) (Mr Prosecutions (1996) 189 CLR 51, 53 South Australia v Totani (2010) 85 Gageler SC); Justice Brian Pres- p. 102 per Gaudron J; Fardon ALJR 19, p. 245 per Heydon J (in ton, Commentary on paper by Dr v Attorney-General for the State dissent). M Groves: “Federal Constitutional of Queensland (2004) 223 CLR 54 Meagher, The Status of the Kable Influences on State Judicial Re- 575, p. 37 per McHugh J; Forge v Principle in Australian Constitu- view”, AACL Seminar, Sydney, 26 Australian Securities Investments tional Law cit., p. 183. August 2010, p. 5; Chief Justice Commission (2006) 228 CLR 55 (2009) 240 CLR 319. Marilyn Warren, The Dog That 45, p. 61 per Gummow, Hayne 56 Ivi, p. 96 per Gummow and Bell Regained its Bark: A New Era of and Crennan JJ. See also South JJ, p. 136 per Hayne, Crennan and Administrative Justice in the Aus- Australia v Totani (2010) 85 ALJR Kiefel JJ, p. 140 per Heydon J. tralian States. Speech delivered to 19, pp. 67-68 per French CJ. 57 (2010) 85 ALJR 19. the Australian Institute of Admin- 46 See for example K-Generation Pty 58 Ivi, p. 62. istrative Law Conference, Sydney, Ltd v Liquor Licensing Court (2009) 59 Although not mentioned in the 23 July 2010, pp. 14-15. 237 CLR 501, pp. 255-256 per judgment it was discussed during 37 See Re Criminal Proceeds Confisca- Kirby J; Fardon v Attorney-General argument: see detailed discus- tion Act 2002 [2004] 1 Qd R 40. for the State of Queensland (2004) sion of this in S. Young and S. 38 See eg, Moffatt (1997) 91 A Crim R 223 CLR 575, p. 219 per Callinan Murray, An Elegant Convergence? 557; R v England (2004) 89 SASR and Heydon JJ. The Constitutional Entrenchment 316; McGarry v Western Australia 47 Forge v Australian Securities of Jurisdictional Error Review in (2005) 32 WAR 69. Investments Commission (2006) Australia, in «Oxford University 39 Gypsy Jokers Motorcycle Club v 228 CLR 45, pp. 63-64. Commonwealth Law», vol. 11, n. Commissioner of Police (2007) 33 48 This confusion stemmed from 2, 2011, p. 117. WAR 245, p. 85 per Steytler P; the judgment of Toohey J in Kable 60 (2010) 239 CLR 531. Baker v The Queen (2004) 223 CLR v Director of Public Prosecutions 61 Ivi, p. 96. 513, p. 51 per McHugh, Gummow, (1996) 189 CLR 51, p. 96. 62 Ivi, p. 98. Hayne and Heydon JJ; Fardon 49 International Finance Trust Co 63 For criticisms of this historical v Attorney-General for the State Ltd v New South Wales Crime reasoning see C. Finn, Consti- of Queensland (2004) 223 CLR Commission (2009) 240 CLR 319, tutionalism Supervisory Review at 575, p. 87 per McHugh J; Silbert v p. 86 per Gummow and Bell JJ; State Level: The End of Hickman?, Director of Public Prosecutions (WA) Fardon v Attorney-General for the in «Public Law Review», vol. (2004) 217 CLR 181, p. 11 per State of Queensland (2004) 223 21, 2010, p. 92, p. 99; N. Gouli- Gleeson CJ, McHugh, Gummow, CLR 575, p. 37 perMcHugh J; Re aditis, Privative Clauses: Epic Fail, Hayne, Callinan and Heydon JJ. Grinter: Ex parte Hall (2004) 28 paper presented at the Gilbert & 40 Baker v The Queen (2004) 223 CLR WAR 427, p. 41 per Malcolm CJ; Tobin Centre for Public Law 2010 513, p. 79 per Kirby J; Fardon v H.A. Bachrach Pty Ltd v. State of Constitutional Law Conference, Attorney-General for the State of Queensland (1998) 195 CLR 547, Sydney, 19 February 2010, p. 7. Queensland (2004) 223 CLR 575, 561; R v Moffatt [1998] 2 VR 229, L. Zines, Recent Developments in p. 23 per Gleeson CJ, p. 102 per p. 248 per Hayne JA. See also Chapter III: Kirk v Industrial Re- Gummow J, p. 144 per Kirby P. Johnston and R. Hardcastle, lations Commission of New South
157 Directions
Wales & South Australia v Totani 77 Meagher, The Status of the Vision of the Structure and Function (CCCS/AACL Seminar, Mel- Kable Principle in Australian of the Constitution, in «Australian bourne Law School, Melbourne, Constitutional Law cit., p. 186. Bar Review», vol. 32, 2009, p. 26 November 2010); G. Williams 78 Kable v Director of Public 138, at p. 139. and A. Lynch, The High Court on Prosecutions (1996) 189 CLR 51, p. 98 Ibidem. Constitutional Law: The 2010 Term, 117 per McHugh J. 99 Kable v Director of Public Paper presented at the Gilbert & 79 Ivi, p. 141 per Gummow J. Prosecutions (1996) 189 CLR 51, p. Tobin Centre for Public Law 2011 80 McGinty v Western Australia (1996) 54. Constitutional Law Conference, 186 CLR 140, p. 231 per McHugh 100 Kahn and Kersch, Conclusion Sydney, 18 February 2011, p. 8. J. – Supreme Court Decision 64 Kirk v Industrial Relations 81 Ivi, p. 232. Making and American Political Commission of New South Wales 82 Forge v Australian Securities Development cit., p. 450. (2010) 239 CLR 531, p. 93; Zines, Investments Commission (2006) 101 See eg, J.H. Ely, Democracy and Recent Developments in Chapter 228 CLR 45, pp. 63-64 per Distrust – A Theory of Judicial III cit., pp. 10-11; Williams Gummow, Hayne and Crennan Review, Harvard University Press, and Lynch, The High Court on JJ; South Australia v Totani (2010) 1980. Constitutional Law: The 2010 Term 85 ALJR 19, p. 62 per French CJ. cit., p. 8. 83 Kirk v Industrial Relations 65 Kable v Director of Public Commission of New South Wales Prosecutions (1996) 189 CLR 51, (2010) 239 CLR 531, p. 98. p. 114. See also South Australia v 84 South Australia v Totani (2010) 85 Totani (2010) 85 ALJR 19, p. 4 per ALJR 19, p. 47. French CJ. 85 Ivi, pp. 48-52 and pp. 59 ff. 66 (2011) 85 ALJR 398. 86 Ivi, p. 62. 67 Wainohu (2011) 85 ALJR 746, p. 87 Ivi, p. 66. 69 per French CJ, p. 109 per- 88 Kirk v Industrial Relations Gummow, Hayne, Crennan and Commission of New South Wales Bell JJ. (2010) 239 CLR 531, p. 96, p. 98. 68 Ivi, p. 44. 89 R. Kahn and K.I. Kersch, 69 (2011) 85 ALJR 957. Conclusion – Supreme Court 70 Gypsy Jokers Motorcycle Club Decision Making and American Incorporated v Commissioner for Political Development, in R. Kahn Police (2008) 234 CLR 532, p. 103 and K.I. Kersch (edited by), The per Kirby J, although in dissent. Supreme Court & American Political 71 International Finance Trust Co Development, University Press of Ltd v New South Wales Crime Kansas, 2006, pp. 443, 457. Commission (2009) 240 CLR 319, 90 Ivi, p. 458. p. 57. 91 Ibidem. 72 For a further discussion of this in 92 Ibidem. the Kirk context see Ibidem. 93 Spigelman, The Centrality of 73 Hon J.J. Spigelman, The Centrality Jurisdictional Error cit., p. 80. of Jurisdictional Error, in «Public 94 Fardon v Attorney-General for the Law Review», vol. 21, 2010, p. 77, State of Queensland (2004) 223 p. 80. CLR 575, p. 40 per McHugh J. 74 Kirk v Industrial Relations 95 Statements by the High Court in Commission of New South Wales cases like Totani demonstrate (2010) 239 CLR 531, p. 96. that members of the bench are 75 G. Winterton, Justice Kirby’s increasingly gravitating towards Coda in Durham, in «Public Law this conception: see South Aus- Review», vol. 13, 2002, p. 165, at tralia v Totani (2010) 85 ALJR 19, p. 168. p. 76, p. 82 per French CJ, pp. 76 Meagher, The Status of the 146-147 per Gummow J. Kable Principle in Australian 96 B. Friedman, The Politics of Constitutional Law cit., p. 186 Judicial Review, in «Texas Law quoting Dawson J at Kable v Review», vol. 84, n. 2, 2005, p. Director of Public Prosecutions 257, at p. 308. (1996) 189 CLR 51, p. 83. 97 S. Gageler, Beyond the Text: A
158 Authors / Autori
Augusto Zimmermann, Senior Lecturer and Associate Dean (Research), Murdoch University, School of Law: [email protected] James Allan, Garrick Professor of Law, T.C. Beirne School of Law, The University of Queensland: [email protected] Nicholas Aroney, Professor of Constitutional Law, T.C. Beirne School of Law, The University of Queensland: [email protected] Jürgen Bröhmer, Dean and Professor of Law, Murdoch University, School of Law: j.brohmer@ murdoch.edu.au Michelle Evans, Senior Lecturer in Law, Murdoch University, School of Law: Michelle.Evans@ murdoch.edu.au Lorraine Finlay, Lecturer in Law, Murdoch University, School of Law: [email protected] Eric Ghosh, Senior Lecturer in Law, University of New England, School of Law: [email protected] Jeffrey Goldsworthy, Professor of Constitutional Law, Monash University, Faculty of Law: jeff. [email protected] Gabriël A. Moens, Pro Vice Chancellor and Professor of Law, Murdoch University, Faculty of Law, Business and Information Technology: [email protected] John Trone, Adjunct Professor, Murdoch University, School of Law: [email protected] Sarah Murray, Associate Professor of Constitutional Law, The University of Western Australia, School of Law: [email protected]
giornale di storia costituzionale / journal of constitutional history 24 / II 2012 159
Abstracts
Nicholas Aroney, ‘Una società di società’: Why Australia is a Federation / “Una società di società”: perché l’Australia è una federazione
Although the Australian federation came into being in 1901 under the authority of the British Imperial Parliament in London, the decision to federate, and the terms and conditions upon which it occurred, were all negotiated and agreed to by elected representatives of the several constituent states. The constituent states of the federation had secured independent powers of local self-gov- ernment and constitutional self-determination in the 1850s, and when considering the possibility of forming a federation, they were not willing to give up those powers to a consolidated central gov- ernment. In this respect, they looked to the examples of other historic federations, such as Swit- zerland and the United States, as models of government in which the constituent states agreed to form a federal level of government for certain ‘national’ purposes, while retaining a fundamental capacity to govern themselves independently in all other respects. The design of the Australian Constitution reflected this fundamental principle, particularly in the specifically limited compe- tences conferred upon the federal institutions of government, the reservation of all other powers to the states, the representation of the states as equals within one of the houses of the federal par- liament, and the requirement that any additional changes to the federal compact would have to be agreed to by a majority of people in a majority of states. Since the formation of the Australian feder- ation, the High Court of Australia has not consistently interpreted the Constitution in a manner that gives effect to the intentions of its framers. Although the Constitution was designed to maintain a kind of balance between the federal and state levels of government, the general trend in Australia has been to towards increasing centralisation. There are several strategies that might be adopted to attempt to reverse this trend. One of the most radical would involve the state governments ini- tiating a process whereby the state constitutions would be submitted to their respective peoples for ratification and approval by referendum. Such an initiative has the potential to reinvigorate the role and constitutional standing of the states within the federation. This is because, at present, only the federal constitution has been popularly ratified, and the democratic foundations of the federation giornale di storia costituzionale / journal of constitutional history 24 / II 2012 161 Abstracts have been one of the underlying reasons why the High Court has given interpretive priority to the powers of the federation in preference to those of the states. While the practical implications of such a change cannot be predicted with absolute certainty, if the state constitutions were ratified by their respective peoples, it would give the Court reason to consider the states as locations of consti- tutional, democratic self-governance at least as fundamental to the federation as the government of the federation as a whole, just as the framers had originally intended, and to interpret the federal Constitution in that light. Sebbene la federazione Australiana venne costituita nel 1901 sotto l’autorità del Parlamento Imperiale Britannico a Londra, la decisione di confederarsi e i termini e le condizioni in base alle quali avvenne furono tutti negoziati e concordati dai rappresentanti eletti dei numerosi Stati costi- tuenti. Gli Stati costituenti della federazione si erano assicurati poteri indipendenti di autogoverno locale e di autodeterminazione costituzionale negli anni 50 del Milleottocento, e nel considerare la possibilità di formare una federazione, essi non desideravano rinunciare a questi poteri a fa- vore di un governo consolidato centrale. A questo riguardo, essi guardavano agli esempi di altre federazioni storiche, come Svizzera e Stati Uniti, come modelli di governo sulla base dei quali gli Stati costituenti concordarono di formare un livello federale di governo per alcuni ‘scopi’ nazionali, conservando una capacità fondamentale di governare se stessi in modo indipendente per altri versi. L’assetto della costituzione australiana rifletteva questo principio fondamentale, particolarmente nelle specificamente limitate competenze conferite alle istituzioni federali del governo, la riserva di tutti gli altri poteri agli Stati, la rappresentazione degli Stati come uguali all’interno di una delle Camere del Parlamento Federale, e il requisito che ogni cambiamento addizionale alla normativa federale dovesse essere concordato da una maggioranza di persone in una maggioranza di Stati. Fin dalla formazione della Federazione australiana, l’High Court of Australia (Alta Corte d’Australia) non ha coerentemente interpretato la costituzione in una maniera che renda effettive le intenzioni dei suoi estensori. Sebbene la Costituzione fu disegnata per mantenere una sorta di equilibrio tra livello federale e statale di governo, la tendenza generale in Australia è andata verso una centraliz- zazione crescente. Ci sono diverse strategie che potrebbero essere adottate per tentare di invertire questa tendenza. Una delle più radicali comporterebbe che i governi degli Stati inizino un procedi- mento in cui le costituzioni degli Stati sarebbero sottoposte alla ratifica ed approvazione mediante referendum da parte dei rispettivi cittadini. Tale iniziativa ha il potenziale di rinvigorire il ruolo e la posizione costituzionale degli Stati all’interno della Federazione. Questo perché, al momento, solo la Costituzione federale è stata ratificata popolarmente, e i fondamenti democratici della Federa- zione sono stati una delle ragioni sottostanti il fatto che la High Court (Alta Corte) ha dato priorità interpretativa ai poteri della federazione con preferenza su quelli degli Stati. Mentre le implicazioni pratiche di un tale cambiamento non possono essere predette con assoluta certezza, se le costituzio- ni degli Stati fossero ratificate dai rispettivi cittadini, ciò darebbe alla Corte ragione di considerare gli Stati come sedi di autogoverno costituzionale e democratico almeno altrettanto fondamentali per la federazione quanto il governo della federazione nel suo insieme, proprio come gli estensori avevano originalmente inteso, e di interpretare la Costituzione federale in questo senso. Keywords / Parole chiave: Federalism, Constitutionalism, Self-Government, Localism, Cen- tralisation, Federal Balance, Judicial Review / Federalismo, Costituzionalismo, Autogoverno, Loca- lismo, Centralizzazione, Equilibrio Federale, Revisione Giudiziale.
162 Abstracts
James Allan, Why Australia Does Not Have, and Does Not Need, a National Bill of Rights / Perché l’Australia non ha, e non ha bisogno di avere, un Bill of Rights nazionale
In this article the author explains why Australia does not have a national Bill of Rights while also arguing that is a good thing, that Australia does not need one. He also considers the recent failed attempt to enact a statutory Bill of Rights and how these non-constitutionalised models also make inroads into democratic decision-making. The author finishes by considering what Australia does have that falls broadly under this aegis, namely the statutory Bill of Rights of the one and only State that has one (Victoria) and the so-called ‘implied rights’ jurisprudence that gives the top judges a not-often-used power to invalidate legislation. In questo articolo l’autore spiega perché l’Australia non ha un Bill of Rights (Carta dei diritti), ar- gomentando anche che questa è una buona cosa in quanto l’Australia non ha bisogno di averne uno. Egli considera anche il recente tentativo fallito di promulgare un Bill of Rights (Carta dei diritti) legale e come questi modelli non costituzionalizzati facciano irruzione in processi decisionali democrati- ci. L’autore conclude considerando quanto posseduto dall’Australia che possa ricadere ampiamente sotto questa egida, precisamente il Bill of Rights (Carta dei diritti) legale del solo e unico Stato (Victo- ria) che ne ha uno e la cosiddetta giurisprudenza degli “implied rights” (diritti implicati) che dà agli alti magistrati un potere, non usato spesso, di invalidare la legislazione. Keywords / Parole chiave: Australian Constitution, Bill of Rights, Human Rights, Judicial Re- view / Costituzione Australiana, Bill of Rights (Carta dei diritti), Diritti Umani, Revisione Giudiziale.
Jürgen Bröhmer, The External Affairs Power in Australia and in Germany: Different Solutions, Similar Outcome? / Il potere degli Affari esteri in Australia e in Germania: diverse soluzioni, analogo risultato?
Australia and Germany are both constitutionally organized federal states. The Commonwealth Constitution and the German Basic Law approach the distribution of power between the centre and the constituent entities in external affairs matters from opposite directions. In the end, in both cases an institutional modus vivendi has been found in trying to balance the interests of the federation with those of the constituent entities by improving information and communication between the two lev- els and by involving and listening to the constituent entities. However, the position of the German Länder in external affairs is considerably stronger than that of their Australian counterparts. Where- as Article 23 of the Basic Law indicates the potentially strong position of the Länder in external affairs, it is also an indication of the degree to which European Union matters have evolved into a sui generis relationship and which can no longer be regarded as merely a subset of traditional external affairs even if they cannot be regarded as domestic affairs either. Australia e Germania sono entrambi Stati federali organizzati costituzionalmente. La Costituzio- ne del Commonwealth e la Costituzione (Grundnorm) tedesca affrontano la distribuzione del potere tra centro e le entità costituenti negli affari esteri da punti di vista opposti. Alla fine, in entrambi i casi un modus vivendi istituzionale è stato trovato nel cercare di equilibrare gli interessi della federazione con quelli delle entità costituenti migliorando informazione e comunicazione tra i due livelli e coin- volgendo e ascoltando le entità costituenti. Comunque, la posizione dei Länder tedeschi negli affari
163 Abstracts esteri è considerevolmente più forte di quella delle loro controparti australiane. Mentre l’articolo 23 della Costituzione (Grundnorm) indica la posizione potenzialmente forte dei Länder negli affa- ri esteri, è anche un indicatore del grado di evoluzione delle questioni dell’Unione Europea in una relazione sui generis, che non può più essere considerata come meramente un sottoinsieme di affari esteri tradizionali anche se essi non possono essere considerati neanche affari interni. Keywords / Parole chiave: Australian Constitution, German Basic Law, Australian federalism, German federalism, Sovereignty, External Affairs, European Union, Treaty making and Implemen- tation / Costituzione Australiana, Costituzione tedesca (Grundnorm), Federalismo Australiano, Fe- deralismo Tedesco, Sovranità, Affari Esteri, Unione Europea, Elaborazione e applicazione dei Trat- tati.
Michelle Evans, Engineers: The Case that Changed Australian Constitutional History / Engineers: il caso che cambiò la storia costituzionale australiana
Australia’s federal system of government is established by the Commonwealth Constitution which provides for a central Commonwealth government with limited powers and six state governments with plenary powers. When the Constitution was originally drafted, the framers sought, in the provi- sions and structure of the Constitution, to retain the powers of the states as much as possible. After Australia became a federation in 1901, the High Court of Australia, in its early decisions, sought, in the method of constitutional interpretation they utilised (originalism), to give effect to the framers’ intention to protect the federal nature of the Constitution. However, in 1920 in Amalgamated Society of Engineers v Adelaide Steamship Co Ltd (‘Engineers’), the High Court rejected this approach. Instead, the High Court advocated a method of constitutional interpretation (literalism) which favoured a broad interpretation of Commonwealth powers, and which compromised the federal balance there- after. This paper provides an overview and critique of the decision in Engineers, explaining its sig- nificance for Australian federalism. This paper concludes with some observations about the role of precedent in Australian constitutional interpretation and seeks to offer some suggestions as to why a decision that was so ill-founded has proven to be so enduring. Il sistema federale australiano di governo è stabilito dalla Costituzione del Commonwealth che prevede un governo centrale del Commonwealth con poteri limitati e sei governi di Stati con pieni poteri. Quando la Costituzione venne originariamente stesa, gli estensori cercarono, nelle norme e nella struttura della costituzione, di mantenere i poteri degli Stati, per quanto possibile. Dopo che l’Australia divenne una federazione nel 1901, la High Court of Australia (Alta Corte d’Australia), nelle sue prime decisioni, tentò, con il metodo di interpretazione costituzionale che utilizzarono (origina- lism), di dare effettività all’intenzione degli estensori di proteggere la natura federale della Costitu- zione. Comunque, nel 1920 nel processo Amalgamated Society of Engineers contro Adelaide Steamship Co. Ltd (‘Engineers’), la High Court (Alta Corte) rigettò questo approccio. Invece, la High Court (Alta Corte) sostenne un metodo di interpretazione costituzionale (literalism) che favoriva un’interpre- tazione ampia dei poteri del Commonwealth, e che comprometteva l’equilibrio federale successivo. Questo paper fornisce una panoramica e una critica della decisione nel processo Engineers, spiegan- do il suo significato per il federalismo australiano. Questo paper conclude con alcune osservazioni sul ruolo del precedente nell’interpretazione australiana e tenta di offrire alcune indicazioni sul per- ché una decisione che fu così mal fondata ha dato prova di essere così duratura.
164 Abstracts
Keywords / Parole chiave: Australian Constitution, Engineers, Federalism, High Court Of Aus- tralia, Centralisation, Constitutional Interpretation, Precedent / Costituzione Australiana, Engi- neers, Federalismo, Alta Corte d’Australia, Centralizzazione, Interpretazione costituzionale, Prece- dente.
Lorraine Finlay, The Power of the Purse: An Examination of Fiscal Federalism in Australia / Il potere della borsa: un esame del federalismo fiscale in Australia
This paper will trace the growing financial dominance of the Commonwealth government over the past century and its implications for the federal balance in Australia. It will argue that such an economically dominant central government was never intended by the Founding Fathers, and in- deed that it undermines many of the protections they sought to establish through the adoption of a federal structure in the Constitution. Finally, it will go on to briefly highlight a number of possible reforms that, if introduced, would go some way to restoring the fiscal position of the States relative to the Commonwealth government. Questo paper seguirà le tracce della crescente dominazione finanziaria del governo del Common- wealth durante il secolo scorso e le sue implicazioni per l’equilibrio federale in Australia. Sosterrà che tale governo centrale economicamente dominante non fu mai nelle intenzioni dei Padri Fon- datori, e che senz’altro erode molte delle tutele che essi cercarono di stabilire attraverso l’adozione di una struttura federale nella Costituzione. Infine evidenzierà brevemente un numero di possibili riforme che, se introdotte, potrebbero restaurare la posizione fiscale degli Stati in relazione al gover- no del Commonwealth. Keywords / Parole chiave: Fiscal Federalism, Australian Constitutional History, Reform / Fede- ralismo Fiscale, Storia Costituzionale Australiana, Riforma.
Eric Ghosh, The Australian Constitution and Expressive Reform / La Costituzione Australiana e la qualità espressiva della riforma
The Australian Constitution is relatively old and this has led to some tension between the values it expresses and contemporary values. The paper refers to some historic landmarks in the life of the Constitution and these form the basis for an exploration of the expressive quality of the Constitu- tion, with particular attention given to expressive reform. This exploration draws more generally on political, legal, philosophical, and sociological literature. It sounds a note of caution in pursuing ex- pressive constitutional reform. On the other hand, it concludes with discussion of how the symbolic charge of the Constitution could be increased. This would be achieved through reform of the consti- tutional amendment process aimed at furthering popular sovereignty. La Costituzione Australiana è relativamente vecchia e questo ha portato a qualche tensione tra i valori che esprime e valori contemporanei. Il paper fa riferimento ad alcune pietre miliari storiche nella vita della Costituzione e queste formano la base per un’esplorazione della qualità espressiva della Costituzione, con un’attenzione particolare data alla riforma espressiva. Questa esplorazione
165 Abstracts fa ricorso più generalmente alla letteratura politica, legale, filosofica e sociologica. Produce una nota di cautela nel perseguire la riforma costituzionale espressiva. D’altra parte, conclude col discutere come il cambiamento simbolico della Costituzione potrebbe essere aumentato. Questo potrebbe es- sere raggiunto attraverso una riforma della procedura di revisione costituzionale diretta a favorire la sovranità popolare. Keywords / Parole chiave: Constitutionalism, Symbolism, Constitutional Amendment, Consti- tutional Referendum, Deliberative Democracy, Indigenous Recognition, National Identity / Costitu- zionalismo, Simbolismo, Revisione costituzionale, Referendum costituzionale, Democrazia delibe- rative, Riconoscimento degli Indigeni, Identità Nazionale.
Jeffrey Goldsworthy, Interpreting the Australian Constitution: Express Provisions and Unexpressed General Principles / Interpretare la Costituzione Australiana: provvedimenti espressi e principi generali inespressi
Disagreement within the High Court of Australia concerning the proper method for interpret- ing the Constitution initially concerned the legitimacy of enforcing general unexpressed principles that could arguably be inferred from express provisions. This was perceived at the time to involve a disagreement between British and American approaches to interpretation. This article describes that initial disagreement, how it was resolved in the landmark Engineers’ case (1920), and how the disagreement re-emerged in later cases, particularly ones decided over the last twenty years. Il disaccordo all’interno della High Court of Australia (Alta Corte d’Australia) concernente il meto- do corretto per interpretare la Costituzione concerneva inizialmente la legittimità di attuare principi generali inespressi che potevano probabilmente essere dedotti dai provvedimenti espressi. Questo al tempo fu percepito come comportante un disaccordo tra gli approcci britannici e americani all’in- terpretazione. Questo articolo descrive quell’iniziale disaccordo, come venne risolto nel caso epocale Engineers (1920), e come il disaccordo riemerse in casi successivi, particolarmente in quelli decisi negli ultimi venti anni. Keywords / Parole chiave: Australian Constitution, Interpretation, Implications, Unwritten Principles / Costituzione Australiana, Interpretazione, Implicazioni, Principi non scritti.
Gabriël A. Moens, John Trone, The Validity of Henry VIII Clauses in Australian Federal Legislation / La validità delle Clausole di Enrico VIII nella legislazione federale australiana
The Australian High Court has stated that the federal Parliament may not abdicate its legislative powers. However, the Court’s concept of abdication only prohibits an abdication or renunciation of the power of Parliament to repeal or amend a statute. This concept of abdication is so narrow that it has not proved to be a meaningful limitation in practice. This paper argues that the Court should modify its abdication doctrine so that a delegation of power to amend statute law by regulation would constitute an abdication of legislative power. Subordinate legislation must at least be subordinate to primary legislation.
166 Abstracts
L’High Court (Alta Corte) australiana ha deciso che il Parlamento federale può non abdicare i suoi poteri legislativi. Comunque, il concetto di abdicazione della Corte proibisce solamente una abdi- cazione o rinuncia del potere del Parlamento di respingere o emendare una legge. Questo concetto di abdicazione è così stretto che ha dato prova di non essere una limitazione significativa in pratica. Questo paper dibatte che la Corte dovrebbe modificare la sua dottrina sull’abdicazione in modo che una delega di potere a emendare la legge mediante regolamenti costituirebbe una abdicazione del potere legislativo. La legislazione subordinata deve almeno essere subordinata alla legislazione pri- maria. Keywords / Parole chiave: Separation of Powers between Executive and Legislature, Abdication and Delegation of Legislative Power, Power to Amend Statute Law by Regulation / Separazione di Po- teri tra Esecutivo e Legislativo, Abdicazione e Delega di Potere Legislativo, Potere di Emendare la Legge mediante Regolamento.
Sarah Murray, Australian State Courts and Chapter III of the Commonwealth Constitution – Interpretation and Re-Interpretation and the Creation of Australian Constitutional “Orthodoxy” / I Tribunali di Stato australiani e il Capitolo III della Costituzione del Commonwealth – Interpretazione e re-interpretazione e la creazione della “Ortodossia” costituzionale australiana
This article will provide a historical gaze over the High Court of Australia’s interpretation and re-interpretation of Chapter III of the Commonwealth Constitution in terms of its implications for State Courts. Beginning with the framing of the constitutional text, it will survey the Court’s approach to Chapter III leading up to the seismic decision in Kable and the Court’s ongoing provision of mean- ing to constitutional phrases such as “Court of a State” and “Supreme Court of any State”. With some comparative discussion, it will reflect on the constitutional process by which radical interpretations can become commonplace and accepted orthodoxy. Questo articolo provvederà uno sguardo storico sull’interpretazione e reinterpretazione del capi- tolo III della Costituzione del Commonwealth da parte dell’High Court of Australia (Alta Corte D’Au- stralia) relativamente alle sue implicazioni per le Corti statali. Iniziando con un quadro generale del testo costituzionale, analizzerà l’approccio della Corte al capitolo III che porta alla decisione deva- stante in Kable e il provvedimento in corso della Corte significativo per le frasi costituzionali come “Corte di uno Stato” e “Corte Suprema di uno Stato”. Sulla base di alcune discussioni comparative, rifletterà sul processo costituzionale attraverso il quale interpretazioni radicali possono diventare luoghi comuni e ortodossia accettata. Keywords / Parole chiave: Constitutional orthodoxy, High Court of Australia, Commonwealth Constitution, Kable and Australian State Courts / Ortodossia costituzionale, Alta Corte d’Australia, Costituzione del Commonwealth, Kable e le Corti Statali Australiane.
167
In the next issues / Nei prossimi numeri n. 25 – I semestre / 1st semester 2013 Special Issue Dimensioni costituzionali ed esperienze coloniali
Contributi di/articles by: Giulio Abbate, Gianluca Bascherini, Antonella Bettoni, Bernard Durand, Sandro Guerrieri, Antonio-Filiu Franco, Marco Fioravanti, Luigi Nuzzo, María Nieves Saldaña Díaz, Julia Solla Sastre, Giorgio Stamboulis, Elio Tavilla, Gian Paolo Trifone. n. 26 – II semestre / 2nd semester 2013 Miscellaneous issue Library of the Journal of Constitutional History / Biblioteca del Giornale di Storia costituzionale Series directed by / Collana diretta da: Luigi Lacchè, Roberto Martucci, Luca Scuccimarra
L’evidenza dei diritti. La déclaration des droits di Sieyès e la critica di Bentham, con testi originali a fronte, a cura di / edited by Giovanni Ruocco, 2009 Lucien Jaume, Che cos’è lo spirito europeo?, 2010 Maurizio Ricciardi, La società come ordine. Storia e teoria politica dei concetti sociali, 2010 Simona Gregori, L’enfance de la Science du Gouvernement. Filosofia, politica e istituzioni nel pensiero dell’abbé de Saint-Pierre, 2010 Ronald Car, "Un nuovo Vangelo per i tedeschi". Dittatura del Cancelliere e Stato popolare nel dibattito costituzionale tedesco del secondo Ottocento, 2011 Il ‘giureconsulto della politica’. Angelo Majorana e l’indirizzo sociologico del Diritto pubblico, a cura di / edited by Giacomo Pace Gravina, 2011
Forthcoming / In preparazione: La teoria costituzionale di Sieyès di Antoine Claude Boulay de la Meurthe, con testo originale a fronte, a cura di / edited by Paolo Colombo Costituzione e governo. Scritti e interventi politici di P.‑L. Roederer, con testi di L. Lacchè, R. Martucci, L. Scuccimarra Andrea Marchili, Dal sovrano alla nazione. Rousseau e la rappresentazione del popolo Michele Basso, Max Weber. Economia e politica fra tradizione e modernità Trasfigurazioni costituzionali nelle quattro lezioni di J.J. Park:The Dogmas of the Constitution (1832); traduzione ed edizione critica a cura di U. Bruschi e D. Rossi, con saggi introduttivi di M. Bertolissi e D. Rossi.
Demands and informations / Per richieste ed informazioni: eum edizioni università di macerata Via Carducci, 63/a 62100 Macerata T (39) 07332586081 F (39) 07332586086 [email protected] http://eum.unimc.it BOARD OF EDITORS OF THE GIORNALE DI STORIA COSTITUZIONALE / JOURNAL OF CONSTITUTIONAL HISTORY
STYLE SHEET FOR THE AUTHORS
1. The editorial staff accepts articles in the main European languages. 2. The articles must have an electronic format (a ’.doc’ file or a ’.rtf’ file) and should not exceed 60,000 characters (including spaces). They can be sent to the following email address [email protected] or copied onto a CD or a DVD and sent to the postal address of the Board of Editors: Giornale di Storia costituzionale / Journal of Constitutional History, Dipartimento di diritto pubblico e teoria del governo, Università degli Studi di Macerata, piazza Strambi, 1 – 62100 Macerata, Italy. 3. Every article must include: - title, eventual subtitle, name and surname of the author, her / his academic title, name and address of the institution to which she / he belongs, email address; - abstract (no longer than 2,500 characters) and 5 keywords, written both in the language of the article and in English. 4. The eventual iconographic material should be sent in separate files named in such a way as to indicate their sequence. Images (’.tiff’ or ’.jpeg’ format) should have a definition of, at least, 300 dpi and a width at their base of, at least, 70 mm; graphs and tables should be sent in their original format with a width no larger than 133 mm. The captions relating to every image, table or graph have to be inserted in a separate text file.
EDITORIAL RULES Titles. The use of capital letters or small capital letters is to be avoided. The titles of articles and abstracts are to be written in English as well. Subheadings and sub-subheadings must be numbered with progressive Arabic numerals. Please avoid to put a full stop at the end. Manuscript preparation. The manuscript must have basic stylistic features. The editors only require the recognisability of the elements of which the contribution is made up: the title, the subheadings and sub-subheadings, the body of the text, the quotations, the endnotes and the position of the eventual explicative material (images, graphs, tables). All the layout that is not necessary for the comprehension of the content must be avoided, in that it makes less easy file processing. Automatic text formatting, justifying lines, using numbered (or bullet) lists provided by a programme, using the hyphen or striking the enter key in order to divide words into syllables must be avoided. Automatic division into syllables must be avoided as well; it is sufficient to justify the left margin. Use the enter key only in order to end a section. Respect the function and the hierarchy of inverted commas (“ ”) and quotation marks (« »); limit the use of italics and, if possible, avoid the use of bold type or underlined parts. Choose common fonts (Arial, Times, Verdana) and indicate – in a note for the editorial board – the eventual use of special type. For further instructions see below. Quotations. Lengthy quotations (more than 3 or 4 lines) must be separated from the body of the text (preceded and followed by a blank line), should not be in inverted commas or quotation marks, should be written with types of a smaller size and never in italics. Short quotations should be incorporated in the text body and put in quotation marks « »; eventual quotations which are within a quotation must be put in inverted commas “ ”, and never in italics. Endnotes. Endnotes are essentially destined to mere bibliographical reference and to explicative purposes. We recommend limiting the number of endnotes. In any case, the number of characters (including spaces) of the endnotes should not exceed a third of the total number of characters of the text (therefore in a standard text of 60,000 characters, including spaces, endnotes should not exceed 20,000 characters, including spaces). Note numbers in the text should be automatically created, should precede a punctuation mark (except in the cases of exclamation and question marks and of suspension points) and be superscripted without parentheses. Even if it is a question of endnotes (and not footnotes), note numbers in the text should never be created superscripting numbers manually, but always using the specific automatic function of the writing programme (for example in Word for Windows 2003 in the menu Insert > Reference). A full stop always ends the text in the notes. Bibliographical references. Bibliographical information of a quoted work belongs in the notes. In the first quotation of the work, complete data must be indicated, that is the below-mentioned elements following the order here established. – if it is a monograph: initial of the name (in capital letters) followed by a full stop and surname of the author (with only the initial in capital letters and never in small capital letters); title in italic type; place of publication; publishers; year of publication (eventual indication of the quoted edition superscripted). All these elements must be separated from one another by a comma. A comma must also separate the name of the authors, if a work has been written by more than one person. In the case in which the author has a double name, the initials should not be separated by a space. ’Edited by’ must be written between parentheses in the language in which the quoted text is written, immediately after the name of the editor and the comma must be inserted only after the last parenthesis. If only a part of the work is quoted, the relative page (or pages) must be added. If it is a work of more than one volume, the indication of the number of the volume (preceded by ’vol.’) must be given and it should be placed before the numbers of the pages. Examples: F. Jahn, Deutsches Volksthum, Lübeck, Niemann & Co, 1810. L. Pegoraro, A. Rinella, Le fonti del diritto comparato, Torino, Giappichelli, 2000. R.D. Edwards, The Best of Bagehot, London, Hamish Hamilton, 1993, p. 150. A. King (edited by), The British Prime Minister, London, Macmillan, 19852, pp. 195-220. AA.VV., Scritti in onore di Gaspare Ambrosini, Milano, Giuffrè, vol. III, pp. 1599-1615. – if it is a translated work: initial of the name (in capital letter) followed by a full stop and surname of the author (with only the initial in capital letter and never in small capital letters); original title of the work in italic type; year of publication between parentheses, followed by a semicolon; the following abbreviations: It. tr. or Fr. tr. or Sp. tr. etc. (which precede and introduce the title of the translation); title of the translation in italic type; place of publication; publishers; year of publication. Examples: W. Benjamin, Über den Begriff der Geschichte (1940); It. tr. Sul concetto di storia, Torino, Einaudi, 1997. J.S. Mill, Considerations on Representative Government (1861); It. tr. Considerazioni sul governo rappresentativo, Roma, Editori Riuniti, 1999. – if it is an article published in a miscellaneous work: initial of the name (in capital letters) followed by a full stop and surname of the author of the article (with only the initial in capital letters and never in small capital letters); title of the article in italic type; initial of the name (in capital letters) followed by a full stop and surname of the editor / author of the volume (with only the initial in capital letters and never in small capital letters) preceded by ’in’ and eventually followed by (’edited by’); title of the volume in italic type; place of publication; publishers; year of publication; pages of the articles. Examples: G. Miglio, Mosca e la scienza politica, in E.A. Albertoni (a cura di), Governo e governabilità nel sistema politico e giuridico di Gaetano Mosca, Milano, Giuffrè, 1987, pp. 15-17. O. Hood Phillips, Conventions in the British Constitution, in AA.VV., Scritti in onore di Gaspare Ambrosini, Milano, Giuffrè, vol. III, pp. 1599 s. – if it is an article which appeared in a periodical: initial of the name (in capital letters) followed by a full stop and surname of the author of the article (with only the initial in capital letters and never in small capital letters); title of the article in italic type; name of the periodical in quotation marks (« ») preceded by ’in’; number of the volume of the periodical (if present) written in Roman numerals; number of the issue preceded by ’n.’ (not by n°., N., num. etc.); year of publication; page number(s). In the case of quotation from a newspaper, after the name of the newspaper indicate the complete date. In the case of reference to articles published in online periodicals, the exact ’http’ address of the text must be given, or alternatively, of the main page of the website which publishes it. Examples: G. Bonacina, Storia e indirizzi del conservatorismo politico secondo la dottrina dei partiti di Stahl, in «Rivista storica italiana», CXV, n. 2, 2003. A. Ferrara, M. Rosati, Repubblicanesimo e liberalismo a confronto. Introduzione, in «Filosofia e Questioni Pubbliche», n. 1, 2000, pp. 7 ss. S. Vassallo, Brown e le elezioni. Il dietrofront ci insegna qualcosa, in «Il Corriere della Sera», 9 ottobre 2007, p. 42. G. Doria, House of Lords: un nuovo passo sulla via della riforma incompiuta, in «www.federalismi.it», n. 4, 2007,
Bibliographical data must be complete only for the first quotation; the following quotations are shortened, indicating only the surname of the author / editor; the title (or part of it) in italic type followed by the abbreviation ’cit.’ or ’cit. tr.’ (in the case of translated works); the number of pages. Here we give some examples for the different typologies of works: Jahn, Deutsches Volksthum cit., pp. 45, 36. Pegoraro, Rinella, Le fonti del diritto cit., p. 200. King, The British Prime Minister cit., p. 195. Benjamin, Über den Begriff cit. tr., pp. 15-20, 23. Bonacina, Storia e indirizzi del conservatorismo politico cit., p. 19. Ferrara, Rosati, Repubblicanesimo cit., pp. 11 and following pages. Doria, House of Lords cit. In the case of reference to the same work and the same page (or pages) quoted in the preceding endnote ’Ibidem’ (in italic type) can be used, without repeating any of the other data; if instead reference is made to the same work quoted in the preceding endnote, but to a different page, ’Ivi’ can be used followed by the page number.
Further instruction for the preparation of the manuscript
References within the issue. They should never refer to page numbers; instead sections of the text, full articles and paragraphs or images (opportunely numbered) can be referred to.
Pages. In bibliographical references, referring to the number or the numbers of the pages must always be preceded by (respectively) ’p.’ or ’pp.’ and reported entirely; therefore, for example, ’pp. 125-129’ and not ’pp. 125-9’. In the case in which it is a question of non consecutive pages, numbers must be separated by commas: for example: ’pp. 125, 128, 315.’ in order to indicate the following page or pages, as well please use ’f.’ or ’ff.’ respectively (hence without the preceding ’and’).
Dates. Reporting dates, the author can adopt the criterion which he believes to be the most adequate, as long as he rigorously respects the internal uniformity of the article. In the case where abbreviated forms are used, please use the preceding apostrophe and not the single inverted comma (for examples ’48 and not ‘48).
Abbreviations and acronyms. Abbreviations must always be without the dot between the letters and, the first time they are quoted, they must be followed by the full name and by the eventual translation in brackets. It is not necessary to explain common use abbreviations (like USA, NATO, ONU, UE, etc.).
Suspension points. Are always three in number, therefore they should not be inserted in the text writing three full stops, rather inserting its symbol. When they indicate suspension – as every punctuation mark – they should be separated by a space from the following word and attached to the word that precedes them (for example: … I do not remember any more…). They do not require the final full stop. When they indicate elision, therefore a cut or a gap in the text, the symbol must be included in square brackets, like this […].
Dashes and hyphens. The dash is used, followed or preceded by a space, in order to open and close an incidental sentence. When the dash that closes the incidental sentence coincides with the closing of the whole sentence, it is omitted and only a full stop is inserted. Eg.: …text – incidental sentence that closes also the whole sentence. The hyphen is used only for compound words formed by entire words (eg.: tree-house) and in order to unite two numerical quantities (eg.: pp. 125-148); always without spaces before and after.
Quotation marks and inverted commas. Quotation marks « » are used in order to indicate direct speech, short quotations, and, in bibliographical references, for the titles of the periodicals. The inverted commas “ ”, instead are used for words of common use to which the author would like to give a particular emphasis (or which are used regardless of their habitual meaning). Moreover, in the quotation of titles of newspapers, periodicals, magazines or chapters or sections of paragraphs of a book (eg.: … as indicated in the paragraph “La Germania assassinata” of the Storia dell’età moderna…). Finally, when it is necessary to use inverted commas within a sentence which is already in quotation marks. The hierarchy is the following: «… “… ’…’ …” …». Punctuation marks (except the exclamation or the question mark when they are part of the quotation) should always be placed after the closing quotation marks or inverted commas.
Web reference. When referring to online contents, the complete address (including the protocol ’http://’ or ’ftp://’ etc. possibly without breaking it) must be indicated and must be included between the signs < >; the date of consultation or verification of the address should always be indicated. Another essential element is the title (or name) of the website / page or a brief description of the contents that could be found at the quoted address. Therefore, for example, a correct reference can be formulated as follows: Sezione novità delle Edizioni Università di Macerata,
DUTIES OF EDITORS
Our ethic statements concerning the duties of the editors of the Journal of Constitutional History are based on COPE (Committee on Publication Ethics), Best Practice Guidelines for Journal Editors: http://publicationethics.org/files/u2/Best_ Practice.pdf.
The editors of the Journal are responsible for deciding which of the articles submitted to the Journal should be published. They are guided by the policies of the Journal’s International Board and constrained by the laws in force. They actively work to improve the quality of their Journal.
The editors evaluate manuscripts for their intellectual content without regard to race, gender, sexual orientation, religious belief, ethnic origin, citizenship, or political orientation of the authors.
The editors and any editorial staff must not disclose any information about a submitted manuscript to anyone other than the corresponding author, reviewers, potential reviewers, other editorial advisers, and the publisher.
Unpublished materials disclosed in a submitted manuscript must not be used in an editor’s own research without the express written consent of the author.
DUTIES OF REVIEWERS
Our ethic statements concerning the duties of reviewers are based on http://www.njcmindia.org/home/about/22.
Peer review assists the editor in making editorial decisions and through the editorial communications with the author may also assist the author in improving the paper.
Any selected referee who feels unqualified to review the research reported in a manuscript or knows that its prompt review will be impossible should notify the editor and excuse himself from the review process.
Any manuscripts received for review must be treated as confidential documents. They must not be shown to or discussed with others except as authorized by the editor.
Reviews should be conducted objectively. Personal criticism of the author is inappropriate. Referees should express their views clearly with supporting arguments.
Reviewers should identify relevant published work that has not been cited by the authors. Any statement that an observation, derivation, or argument had been previously reported should be accompanied by the relevant citation. A reviewer should also call to the editor’s attention any substantial similarity or overlap between the manuscript under consideration and any other published paper of which they have personal knowledge.
Privileged information or ideas obtained through peer review must be kept confidential and not used for personal advantage. Reviewers should not consider manuscripts which can give birth to conflicts of interest resulting from competitive, collaborative, or other relationships or connections with any of the authors, companies, or institutions connected to the papers.
DUTIES OF AUTHORS
Our ethic statements concerning the duties of authors are based on http://www.elsevier.com/framework_products/ promis_misc/ethicalguidelinesforauthors.pdf.
Authors of reports of original research should present an accurate account of the work performed as well as an objective discussion of its significance. Underlying data should be represented accurately in the article. This should contain sufficient detail and references to permit others to replicate the work. Fraudulent or knowingly inaccurate statements constitute unethical behaviour and are unacceptable.
The authors should ensure that they have written entirely original works, and if the authors have used the work and/or words of others that this has been appropriately cited or quoted.
Usually, authors should not publish manuscripts presenting the same research in more than one journal or primary publication.
Proper acknowledgment of the work of others must always be given. Authors should cite publications that have been influential in determining the nature of the reported work.
Authorship should be limited to those who have made a significant contribution to the conception, design, execution, or interpretation of the reported study. All those who have made significant contributions should be listed as co-authors. Where there are others who have participated in certain substantive aspects of the research project, they should be acknowledged or listed as contributors. The corresponding author should ensure that all co-authors are included on the article, and that all co-authors have seen and approved the final version of the article and have agreed to its submission to the Journal for its publication.
When an author discovers a significant error or inaccuracy in his/her own published work, it is the author’s obligation to promptly notify the Journal editor or publisher and cooperate with the editor to retract or correct the paper. INDICAZIONI REDAZIONALI PER GLI AUTORI
1. La redazione accetta articoli nelle principali lingue di comunicazione scientifica. 2. Gli articoli vanno elaborati in formato digitale (file .doc o .rtf), contenendone la lunghezza entro le 60.000 bat- tute (spazi inclusi). Possono essere recapitati all’indirizzo di posta elettronica [email protected] oppure registrati su supporto elettronico (Cd-Rom) e inviati per posta ordinaria all’indirizzo della Redazione: Giornale di Storia costituzionale, Dipartimento di diritto pubblico e teoria del governo, Università degli Studi di Macerata, piazza Strambi, 1 – 62100 Macerata, Italia. 3. Ogni articolo deve essere corredato da: - titolo, eventuale sottotitolo, nome e cognome dell’autore, titolo accademico, denominazione e indirizzo dell’ente, recapito di posta elettronica; - un abstract (non più di 2.500 battute) e da 5 parole‑chiave, redatti sia nella lingua del contributo che in lingua inglese. 4. L’eventuale materiale iconografico va consegnato in file separati, nominati in modo da indicarne la sequenza. Le immagini (formato .tiff o .jpeg) dovranno avere una risoluzione di almeno 300 dpi e una larghezza alla base di almeno 70mm; grafici e tabelle dovranno essere consegnati nel formato originale di elaborazione, con una larghezza non superiore ai 133mm. In un apposito file di testo vanno invece riportate le didascalie relative a ciascuna immagine, tabella o grafico.
NORME EDITORIALI
Titoli. Evitare l’uso del maiuscolo o del maiuscoletto. I titoli dei contributi e degli abstracts vanno riportati anche in inglese. I titoli di paragrafi e sottoparagrafi debbono essere numerati, con numerazione progressiva in cifre arabe. Il punto finale non va messo in nessun caso.
Redazione del testo. La formattazione del testo deve essere minima. Si richiede soltanto che siano riconoscibili gli elementi che compongono il contributo: il titolo, i titoli dei paragrafi e dei sottoparagrafi, il corpo del testo, le citazioni, le note e la collocazione degli eventuali materiali di corredo (immagini, grafici e tabelle). Vanno evitate tutte le istruzioni/impostazioni ’superflue’ ai fini della comprensione dei contenuti, che pure rendono meno agevole il trattamento del file. Da evitare la formattazione automatica, la giustificazione, l’uso degli elenchi numerati (o puntati) da programma, l’utilizzo del trattino e del tasto invio per la sillabazione. Evitare anche la sillabazione automatica; è sufficiente allineare il testo a sinistra. Usare il ritorno a capo (tasto invio) solo per chiudere il paragrafo. Rispettare la funzione e la gerarchia delle virgolette; limitare l’uso dei corsivi e, se possibile, evitare quello dei grassetti e dei sottolineati. Si scelga font comuni (arial, times, verdana) e si segnali – in una nota per la redazione – l’eventuale utilizzo di caratteri spe- ciali. Per ulteriori indicazioni si veda di seguito.
Citazioni. Le citazioni lunghe (superiori a 3-4 righe) vanno staccate dal testo (precedute e seguite da uno spazio), senza essere racchiuse da virgolette, composte in corpo minore e sempre in tondo. Le citazioni brevi vanno incorporate nel testo e poste fra virgolette basse (o caporali) « »; eventuali citazioni interne alla citazione vanno poste fra virgolette doppie alte “ ”, sempre in tondo.
Note. Le note al testo sono destinate essenzialmente a mero rinvio bibliografico e a fini esplicativi. Si raccomanda di conte- nere al massimo il numero delle note. In ogni caso, le battute relative alle note (spazi inclusi) non devono superare il terzo delle battute complessive del testo (nel caso di un testo standard di 60.000, spazi inclusi, le note non dovranno superare le 20.000 battute). Il rimando alle note, all’interno del testo, va elaborato automaticamente e va collocato prima della punteggiatura (salvo i casi dei punti esclamativo, interrogativo e di sospensione). Anche se si tratta di note di chiusura (e non a piè di pagina), i rife- rimenti nel testo non vanno in nessun caso creati assegnando l’apice a un numero posto manualmente, ma solo utilizzando l’apposita funzione del programma di video scrittura (che automaticamente genera il numero e colloca il testo di nota; in Word, dal menù Inserisci > riferimento). Il punto chiude sempre il testo delle note.
Indicazioni bibliografiche. I dati bibliografici di un’opera citata vanno in nota. Nella prima citazione debbono essere completi dei seguenti elementi, nell’ordine indicato. – se si tratta di un’opera compiuta: iniziale puntata del nome e cognome dell’autore (con solo le iniziali in maiuscolo e mai in maiuscoletto); titolo in corsivo; luogo; editore; anno (in apice, l’eventuale segnalazione del numero dell’edizione citata). Tutti questi elementi saranno separati l’uno dall’altro mediante virgole. Sempre mediante la virgola, vanno se- parati i nomi degli autori in un’opera a più mani. Nel caso in cui l’autore abbia un nome doppio, le iniziali vanno indica- te senza lo spazio separatore. L’a cura di va riportato (tra parentesi tonde) nella lingua di edizione del testo, subito dopo il nome del curatore e con la virgola solo dopo la parentesi di chiusura. Se viene indicata una parte della pubblicazione, va aggiunta la pagina (o le pagine) di riferimento. Qualora si tratti di un’opera in più volumi, l’indicazione del volume (preceduta da ’vol.’) va anteposta ai numeri di pagina. Esempi: F. Jahn, Deutsches Volksthum, Lübeck, Niemann & Co, 1810. L. Pegoraro, A. Rinella, Le fonti del diritto comparato, Torino, Giappichelli, 2000. R.D. Edwards, The Best of Bagehot, London, Hamish Hamilton, 1993, p. 150. A. King (edited by), The British Prime Minister, London, Macmillan, 19852, pp. 195-220. AA.VV., Scritti in onore di Gaspare Ambrosini, Milano, Giuffrè, vol. III, pp. 1599-1615.
– se si tratta di un’opera tradotta: iniziale puntata del nome e cognome dell’autore; titolo originale dell’opera in corsivo; anno di pubblicazione tra parentesi tonde, seguito dal ’punto e virgola’; l’abbreviazione che introduce il titolo della traduzione ’tr. it.’ (o ’tr. fr.’, ’tr. es.’ ecc.); titolo della traduzione in corsivo; luogo; editore; anno. Esempi: W. Benjamin, Über den Begriff der Geschichte (1940); tr. it. Sul concetto di storia, Torino, Einaudi, 1997. J.S. Mill, Considerations on Representative Government (1861); tr. it. Considerazioni sul governo rappresentativo, Roma, Edi- tori Riuniti, 1999.
– se si tratta di un contributo che compare in un volume miscellaneo: iniziale puntata del nome e cognome dell’autore del contributo; titolo del contributo in corsivo; nome (puntato) e cognome del curatore/autore del volume, preceduto da ’in’ ed eventualmente seguito da (a cura di); titolo del volume in corsivo; luogo; editore; anno; paginazione del con- tributo. Esempi: G. Miglio, Mosca e la scienza politica, in E.A. Albertoni (a cura di), Governo e governabilità nel sistema politico e giuridico di Gaetano Mosca, Milano, Giuffrè, 1987, pp. 15-17. O. Hood Phillips, Conventions in the British Constitution, in AA.VV., Scritti in onore di Gaspare Ambrosini, Milano, Giuffrè, vol. III, pp. 1599 s.
– se si tratta di un contributo che compare in una pubblicazione periodica: nome dell’autore e titolo dell’articolo (ri- portati come in tutti gli altri casi); testata del periodico tra virgolette caporali preceduta da ’in’; (ove presenti) indi- cazione dell’annata (in numeri romani) e numero del fascicolo preceduto da ’n.’ (e non da n°, N., num. ecc.); anno di pubblicazione; numero pagina/e. Nel caso di citazione da un quotidiano, dopo il titolo della testata si metta la data per esteso. Nel caso si faccia riferimento ad articoli pubblicati in riviste on line, si dovrà fornire l’indirizzo esatto del testo (o, in alternativa, della pagina principale del sito che lo rende disponibile) e la data di consultazione. Esempi: G. Bonacina, Storia e indirizzi del conservatorismo politico secondo la dottrina dei partiti di Stahl, in «Rivista storica italia- na», CXV, n. 2, 2003. A. Ferrara, M. Rosati, Repubblicanesimo e liberalismo a confronto. Introduzione, in «Filosofia e Questioni Pubbliche», n. 1, 2000, pp. 7 ss. S. Vassallo, Brown e le elezioni. Il dietrofront ci insegna qualcosa, in «Il Corriere della Sera», 9 ottobre 2007, p. 42. G. Doria, House of Lords: un nuovo passo sulla via della riforma incompiuta, in «www.federalismi.it», n. 4, 2007,
I dati bibliografici dovranno essere completi solo per il primo rimando; per i successivi si procederà indicando solo il cognome dell’autore/curatore; il titolo (o una parte) in corsivo e seguito dall’abbreviazione ’cit.’ o ’tr. cit.’ (nel caso di opere tradotte); l’indicativo delle pagine. Di seguito gli esempi per le diverse tipologie di: Jahn, Deutsches Volksthum cit., pp. 45, 36. Pegoraro, Rinella, Le fonti del diritto cit., p. 200. King, The British Prime Minister cit., p. 195. Benjamin, Über den Begriff tr. cit., pp. 15-20, 23. Bonacina, Storia e indirizzi del conservatorismo politico cit., p. 19. Ferrara, Rosati, Repubblicanesimo cit., pp. 11 ss. Doria, House of Lords cit. Nel caso si rimandi alla stessa opera e alla stessa pagina (o pagine) citate nella nota precedente si può usare ’Ibidem’ (in corsivo), senza ripetere nessuno degli altri dati; se invece si rimanda alla stessa opera citata nella nota precedente, ma a un diverso numero di pagina, si usi ‘Ivi’, seguito dal numero di pagina. ULTERIORI INDICAZIONI PER LA REDAZIONE DEL TESTO
Rimandi interni al volume. Non debbono mai riferirsi a numeri di pagina; si può invece rimandare a sezioni di testo, interi contributi e paragrafi o immagini (opportunamente numerati).
Paginazione. Nei riferimenti bibliografici, il richiamo al numero o ai numeri di pagina deve essere sempre preceduto (ri- spettivamente) da p. o pp. e riportato per intero; quindi, ad es., pp. 125-129 e non pp. 125-9. Qualora non si tratti di pagine consecutive, i numeri vanno separati dalle virgole: per es. pp. 125, 128, 315. Per indicare anche la pagina seguente o le pagine seguenti si utilizzi rispettivamente s. o ss. (quindi senza ’e’ precedente) e non sgg., seg. o formule analoghe.
Date. Riportando le date, l’autore può adottare il criterio che ritiene più adeguato, purché rispetti rigorosamente l’unifor- mità interna all’articolo. Nel caso vengano utilizzate forme abbreviate, il segno per l’elisione è l’apostrofo e non la virgoletta alta di apertura (per es. ’48 e non ‘48).
Sigle e acronimi. Le sigle devono sempre comparire senza punti tra le lettere e, la prima volta in cui sono citate, vanno fatte seguite dalla dicitura per esteso e dall’eventuale traduzione tra parentesi. Non occorre l’esplicitazione delle sigle di uso co- mune (come USA, NATO, ONU, UE, ecc.).
Punti di sospensione o elisione. Sono sempre 3, quindi non si rendono digitando tre volte il punto sulla tastiera ma inseren- do l’apposito simbolo. Quando indicano sospensione – come ogni segno di punteggiatura – vanno staccati dalla parola che segue e attaccati alla parola che li precede (ad esempio … non mi ricordo più…). Non richiedono il punto finale. Quando indicano elisione, quindi un taglio o una lacuna nel testo, il simbolo viene incluso tra parentesi quadre, in questo modo […].
Trattini. Il trattino medio viene usato, seguito e preceduto da spazio, per aprire e chiudere gli incisi. Quando il trattino di chiusura dell’inciso coincide con la chiusura della frase, si omette e si inserisce solo il punto fermo. Ad es. … testo – inciso che chiude anche la frase. Il trattino breve si usa solo per i termini compositi formati da parole intere (ad es. centro-sinistra) e per unire due quantità numeriche (ad es. pp. 125-148); sempre senza spazi prima e dopo.
Virgolette. Le virgolette basse « » (caporali) si usano per indicare il discorso diretto, le citazioni brevi e, nei riferimenti bibliografici, per i titoli delle pubblicazioni periodiche. Le virgolette alte “ ”, invece, per le parole di uso comune a cui si vuo- le dare particolare enfasi (o assunte prescindendo dal loro significato abituale). Inoltre, nelle citazioni di titoli di quotidiani, periodici, riviste oppure di capitoli e sezioni di paragrafi di un libro (ad es. … come indicato nel paragrafo “La Germania assassinata” della Storia dell’età moderna…). Infine, quando è necessario fare uso delle virgolette all’interno di un discorso già tra caporali. La gerarchia è la seguente: «… “… ’…’ …” …». I segni di punteggiatura (salvo il punto esclamativo o in- terrogativo quando fanno parte della citazione) vanno sempre posposti alla chiusura delle virgolette.
Rimandi al web. Quando si fa riferimento a contenuti on line, bisogna sempre indicare in maniera completa l’indirizzo (compreso il protocollo http:// o ftp:// ecc.; possibilmente senza spezzarlo) e racchiuderlo tra i segni minore e maggiore; va indicata sempre anche la data di consultazione o di verifica (dell’indirizzo). Altro dato indispensabile è il titolo (o nome) del sito/pagina o una breve descrizione dei contenuti che si troveranno all’indirizzo riportato. Quindi, ad esempio, un ri- ferimento corretto può essere così formulato: Sezione novità delle Edizioni Università di Macerata,
DOVERI DEI DIRETTORI E DEI REDATTORI
I principi etici su cui si basano i doveri dei Direttori e dei Redattori del Giornale di Storia costituzionale si ispirano a COPE (Committee on Publication Ethics), Best Practice Guidelines for Journal Editors: http://publicationethics.org/files/u2/Best_ Practice.pdf.
I Direttori e Redattori del Giornale decidono quali articoli pubblicare fra quelli sottoposti alla redazione. Nella scelta sono guidati dalle politiche stabilite dal Comitato Internazionale del Giornale e sono tenuti al rispetto delle norme vigenti. Essi tendono fattivamente al miglioramento della qualità scientifica del Giornale.
Direttori e Redattori valutano i manoscritti sulla base del loro contenuto intellettuale senza tener conto di razza, sesso, orientamento sessuale, fede religiosa, origine etnica, cittadinanza, o orientamento politico dell’autore.
I Direttori e i membri della redazione non devono rivelare alcuna informazione concernente un manoscritto sottoposto alla redazione a nessun’altra persona diversa dall’autore, dal referee, dal referee potenziale, dai consiglieri di redazione, dall’editore.
Il materiale non pubblicato contenuto in un manoscritto non deve essere usato nella ricerca di uno dei Direttori o Redattori senza l’espresso consenso scritto dell’autore.
DOVERI DEI REFEREES
I principi etici su cui si basano i doveri dei Referees del Giornale di Storia costituzionale si ispirano a http://www.njcmindia. org/home/about/22.
Il referaggio dei pari assiste i Direttori e i Redattori nel compiere le scelte redazionali e attraverso la comunicazione reda- zionale con gli autori può anche aiutare gli autori a migliorare l’articolo.
Ogni referee scelto che si senta inadeguato a esaminare la ricerca riportata in un manoscritto o che sappia che gli sarà im- possibile esaminarlo prontamente deve comunicarlo ai Direttori del Giornale e esentare se stesso dal processo di esame.
Ogni manoscritto ricevuto e da sottoporre a valutazione deve essere trattato come documento confidenziale. Esso non deve essere mostrato o discusso con altri eccetto quelli autorizzati dai Direttori e Redattori.
L’esame del manoscritto deve essere condotto in maniera obiettiva. Critiche personali concernenti l’autore sono inappro- priate. I referees devono esprimere i loro pareri chiaramente con argomenti a loro supporto.
I referees devono individuare lavori rilevanti pubblicati che non sono stati menzionati dall’autore. Affermare che osserva- zioni, deduzioni, o tesi siano state precedentemente già sostenute deve essere accompagnato dalla citazione pertinente. I referees devono anche portare all’attenzione dei Direttori e Redattori ogni somiglianza sostanziale o sovrapponibilità tra il manoscritto sotto esame e ogni altro paper pubblicato di cui essi abbiano conoscenza personale.
Informazioni privilegiate o idee ottenute attraverso il referaggio devono essere considerate confidenziali e non usate a vantaggio personale. I referees non dovrebbero accettare di esaminare manoscritti che possano far nascere conflitti di in- teresse risultanti da relazioni o rapporti competitivi o collaborativi o di altra natura con gli autori, le società o le istituzioni connesse con il paper. DOVERI DEGLI AUTORI
I principi etici su cui si basano i doveri degli Autori del Giornale di Storia costituzionale si ispirano a http://www.elsevier. com/framework_products/promis_misc/ethicalguidelinesforauthors.pdf.
Gli autori di manoscritti che riferiscono i risultati di ricerche originali devono dare un resoconto accurato del metodo seguito e dei risultati ottenuti e devono discuterne obiettivamente il significato e valore. I dati sottostanti la ricerca devo- no essere riferiti accuratamente nell’articolo. Questo deve contenere sufficienti riferimenti tali da permettere ad altri di ripercorrere la ricerca eseguita. Affermazioni fraudolente o scientemente inaccurate costituiscono comportamento non etico e sono inaccettabili.
Gli autori devono assicurare di aver scritto lavori interamente originali, e se gli autori hanno usato il lavoro e/o le parole di altri ciò deve essere citato in modo appropriato.
Di norma, gli autori non pubblicano manoscritti che presentano la stessa ricerca in più di un periodico o pubblicazione primaria.
Deve sempre essere dato riconoscimento appropriato del lavoro degli altri. Gli autori devono citare le pubblicazioni che hanno influito nel determinare la natura del lavoro da essi svolto.
La paternità di un manoscritto deve essere limitata a coloro che hanno dato un contributo significativo alla concezione, pianificazione, esecuzione o interpretazione dello studio riportato. Tutti coloro che hanno dato un contributo significativo dovrebbero essere elencati come co-autori. Nel caso in cui ci siano altri che hanno partecipato in alcuni aspetti sostanziali del progetto di ricerca, essi dovrebbero essere menzionati o elencati come contributori. L’autore con cui è in contatto il Giornale dovrebbe assicurarsi che tutti i co-autori siano inclusi nell’articolo, e che tutti i co-autori abbiano visto ed approvato la versione finale del contributo e siano d’accordo a sottoporlo al Giornale per la sua pubblicazione.
Quando un autore scopre un errore significativo o una inesattezza nel proprio articolo pubblicato, ha l’obbligo di notifi- carlo prontamente ai Direttori, Redattori o Editori del Giornale e di cooperare con i Direttori per ritrattare o correggere l’errore.