The major constitutional cases of the century have generally swung the balance of power from the states to the Commonwealth. Or they have defined no-go areas where neither the Commonwealth nor the states can tread.
Selecting the major cases invites contention, but most constitutional historians would agree on a core of up to a dozen cases out of the 10,000 cases decided.
I have selected seven. The first, the Engineers case in 1920, is perhaps the High Court’s most important decision.
In its first 17 years, the High Court developed two doctrines: the doctrine of reserved state powers and the doctrine of immunity of instrumentalities.
The first was that, at the time of federation, the states handed a list of powers to the Commonwealth. These were concurrent powers. That meant the states could still exercise any of those powers if the Commonwealth did not legislate in the area. The states, under the implied prohibitions doctrine, were entitled to exercise all the remaining powers to their full extent.
So Commonwealth powers had to be interpreted in a restrictive way that did not intrude upon the area of state power – the reserved state powers. The finite list of subjects assigned to the Commonwealth left a wide area of reserved authority for the states where the Commonwealth could not go.
The doctrine of the immunity of instrumentalities meant that the Commonwealth could not interfere with the ordinary exercise of state legislative or executive power and vice versa. So Commonwealth public servants did not have to pay state income taxes (which existed in those days). And state employees (like railway workers) did not have to submit to the Commonwealth industrial and arbitration system.
By 1920 the original Justices had gone and the court had been expanded to five, setting the stage for a major shift.
The national engineers union, the Amalgamated Society of Engineers, wanted the right to enter the premises of employers – including state departments and authorities — to check on the working conditions of apprentices.
The Constitution gives the Commonwealth Parliament power to make laws with respect to “the conciliation and arbitration for the prevention and settlement of industrial disputes extending beyond the limits of any one state’’. The Commonwealth Conciliation and Arbitration Act 1904 provided for a Commonwealth Court of Conciliation and Arbitration to deal with interstate industrial disputes such as the engineers’ dispute. But the states objected to having their departments and instrumentalities being subjected to that court’s rulings. They relied on the doctrine of reserved State powers and the doctrine of immunity of instrumentalities.
A majority of the Court — Chief Justice Knox and Justices Isaacs, Higgins, Rich and Starke, with Justice Gavan Duffy dissenting – held that the Commonwealth Parliament had power to make laws binding on state ministers, departments and instrumentalities as employers with respect to industrial disputes extending beyond the limits of one state.
The judges said the correct approach was to construe the meaning of the words of the Constitution like any other law to see what power had been given to the Commonwealth. Once that was done a prohibition against the exercise of that power could not be implied in the Constitution. If an Act of Parliament came within that power in the Constitution it would be valid.
This case in effect swept aside the notion that the states’ had some implied powers where the Commonwealth could not tread. The Commonwealth could exercise its listed powers within the ordinary meaning of the words. Over the years, the Commonwealth has done just that and as it has done so its legal footprint has grown larger.
2. The Uniform Tax case.
The first Uniform Tax Case, heard in 1942, saw the High Court hold in favour of the exercise of even wider central power. The Commonwealth enacted four laws, which together spelled a practical end to the States’ ability to levy income tax. One law imposed an income tax at a rate of up to 90 per cent, thereby leaving the States very little room to impose their own tax. A second law offered grants to those States which voluntarily refrained from imposing an income tax. A third law said the Commonwealth could take over any officers, offices and other physical means that the States used in any attempt to levy an income tax and the fourth law gave the Commonwealth’s taxes priority – forbidding people to pay the State tax until they had paid the Federal one.
The States unsuccessfully challenged the laws, saying that taken together they amounted to a scheme to deprive them of their taxing power.
But the court held that if an Act on its own was valid, the existence of another Act (valid or invalid) could make no difference. The Commonwealth said the scheme was a wartime measure, but in the end its constitutional validity did not depend on the defence power and it continued after World War II.
The practical effect of the first Uniform Tax Case was a huge transfer of money and power to the national Government. In the second half of the century, the High Court’s further interpretation of the grants power allowed for even greater Commonwealth control.
3. Bank Nationalisation
In 1948 the Chifley Labor Government moved to nationalise the banks. If successful it would have allowed the Government to follow through with its policy to nationalise other industries.
The court held the law ran foul of Section 92 which says that trade and commerce between the states shall be absolutely free. The Court put forward an “individual rights” theory of the section. Every person or corporation was entitled to be immune from governmental interference, particularly in the form of legislation, in interstate trade.
The court said also that the law was an unconstitutional acquisition of property.
The practical effect of the case was to put an end to nationalisation as a political agenda.
4. The Communist Party case.
Robert Menzies led his Liberal Party to power at the end of 1949, having campaigned on what he termed the communist menace and communist influence in unions. One of Menzies’ first major pieces of legislation was the Communist Party Dissolution Act. The legislation dissolved the party and provided for the appointment of a receiver to deal with its property. It also permitted the Executive Government to declare unlawful any other organisation if it was satisfied that the organisation was a threat to security. The Act said also that members of the Communist Party or other banned organisations could not be Commonwealth public servants or hold leadership positions in unions.
The Court held that the defence power would not support the legislation. This was because the Act declared the Communist Party a threat to the Commonwealth and it banned organisations which in the opinion of the Government were a threat to the security of the Commonwealth. The Act did not ban organisations which were in fact a threat to the security of the Commonwealth based on contestable facts. The difference was crucial. The Commonwealth Parliament could not permit the Executive Government to merely assert that an organisation was a security threat and ban it, invoking the defence power. It was not for Parliament to determine the ambit of its own defence power. It was for the High Court to determine the ambit of the defence power.
Soon after the decision was handed down on 9 March 1951, Menzies called an election. After winning, Menzies sought approval in a referendum for the widening of Commonwealth legislative power in the Constitution to support the Communist Party Dissolution Act. But the referendum failed and it was left to the Communist Party to dissolve itself through lack of support in 1989.
5. Cole v Whitfield. This unanimous decision in 1988 ended decades of uncertainty over the meaning of Section 92 which provides that trade and commerce between the states shall be absolutely free. It brushed aside the “individual freedom” approach replacing it with a test of discrimination. If a law of a state discriminated against interstate trade and commerce it would be invalid. If it applied across the board it would be valid. The court held valid a Tasmanian law prohibiting the possession of lobsters under a certain size. A lobster farm was prosecuted despite its claim that the lobsters had been legally harvested at that size in South Australia. The Tasmania law applied to all lobsters and so did not infringe freedom of interstate trade.
6. The Tasmanian Dam case
Environmental issues were prominent in the 1983 Federal election campaign, particularly the proposal by the Tasmanian Government and the Hydro-Electric Commission to build a dam on the Gordon River below its junction with the Franklin River. Federally, Labor promised that if it won government it would stop the dam. The new Parliament passed the World Heritage Properties Conservation Act 1983. This prohibited any person from constructing a dam – including preliminary works – that would inundate significant Aboriginal archaeological sites or cause damage to a wilderness area.
Tasmania challenged the validity of the Act, asserting that it went beyond the power of the Commonwealth Parliament.
The Act was held to be valid under the external affairs power. The case led the way for the Commonwealth to make laws to implement any genuine international treaty, irrespective of its subject matter. It did not matter that the subject matter was something that had previously been thought of as solely within state power, such as dam construction or land management. It did not matter that the subject matter of the treaty had previously not been a matter of international concern. The mere fact that Australia and other countries had thought it appropriate to enter into a treaty was enough to attract the external affairs power. The only proviso was that the treaty had to be entered into in good faith and not a subterfuge by the Commonwealth to increase its power in Australia.
The Tasmanian Dam case had the effect of widening Commonwealth power. Over time nations have entered into treaties over a range of new matters, in particular the environment, labour conditions, discrimination and a range of criminal conduct. As they did so, the Commonwealth gained wider power by entering into international obligations which were given effect within Australia by legislation.
The case drew considerable criticism from supporters of States’ rights and some constitutional lawyers who thought the Court had changed the federal compact by giving power to the Commonwealth at the expense of the States.
As it happens, in the ensuing 20 years the Commonwealth has made only infrequent use of treaties to legislate in fields where it had no other head of power, though the opportunity remains for an adventurous government to do so.
6. The Mabo native title case. Much has already recently been written about this case to warrant a large treatment here. The court held that Australian common law – like the common law of other places colonised by the British – recognised the pre-existing land rights of indigenous people. However, native title could be extinguished by the grant of an interest in land that was inconsistent with the continuing right to enjoy native title – either by the Executive or legislature.
But whatever extinguishment occurred in the past, future extinguishment will be difficult. State legislatures could not do it because they would come up against the Racial Discrimination Act. And the Commonwealth Parliament could not do it without dealing with the constitutional requirement for acquisition of property only on just terms, which would involve the payment of compensation.
7. Plaintiff S157
In 2003 a case was brought to the High Court by Plaintiff S157 (who could not be named because of a provision of the Migration Act). The plaintiff challenged the validity of a section of the Migration Act that provided that administrative decisions (with some exceptions) made under the Migration Act were “final and conclusive and must not be challenged, appealed against, reviewed, quashed or called in question in any court.” It was a privative clause that attempted to oust the jurisdiction of the courts.
Chief Justice Gleeson said, “In a federal nation, whose basic law is a Constitution that embodies a separation of legislative, executive, and judicial powers, there is a further issue that may be raised by a privative clause. It is beyond the capacity of the Parliament to confer upon an administrative tribunal the power to make an authoritative and conclusive decision as to the limits of its own jurisdiction, because that would involve an exercise of judicial power.”
So the Migration Act could not prevent a challenge to a decision of the Refugee Tribunal affecting its jurisdiction. This might involve a whole range of issues because a tribunal that does not adopt procedural fairness, for example, might lack jurisdiction to rule the way it did.
The case was an important statement of the rule of law and the limits of executive and legislative power.
Three other cases as a group are worth mentioning: the Incorporation case 1990, Ha in 1997 (excise) and Re Brown 1999 (cross-vesting). In each case the court struck down legislation that both the states and the Commonwealth had agreed to on grounds of convenience. The words of the Constitution were more important than administrative convenience. In the incorporation case a federal-state legislative scheme to govern companies was struck out for lack of Commonwealth legislative power. In Ha, state taxes on tobacco, alcohol and petrol were was struck out because they were held to be excises and the Constitution gives the Commonwealth exclusive power over excises. In Re Brown the court struck out a federal-state scheme to enable complex matters involving federal and state law to be heard in one court.
There are, of course, of important and interesting High Court cases in the Commonwealth Law Reports. Those above at least give an idea of the complexity and importance of the court’s work.