661:
lost some of their former powers and gained no new powers. They became components of a federation, the
Commonwealth of Australia. It became a nation. Its nationhood was in the course of time to be consolidated in war, by economic and commercial integration, by the unifying influence of federal law, by the decline of dependence upon British naval and military power and by a recognition and acceptance of external interests and obligations. With these developments the position of the Commonwealth, the federal government, has waxed; and that of the States has waned. In law that is a result of the paramount position of the Commonwealth Parliament in matters of concurrent power. And this legal supremacy has been reinforced in fact by financial dominance. That the Commonwealth would, as time went on, enter progressively, directly or indirectly, into fields that had formerly been occupied by the States, was from an early date seen as likely to occur. This was greatly aided after the decision in the
670:
to a growing realization that
Australians were now one people and Australia one country and that national laws might meet national needs. For lawyers the abandonment of old interpretations of the limits of constitutional powers was readily acceptable. It meant only insistence on rules of statutory interpretation to which they were well accustomed. But reading the instrument in this light does not to my mind mean that the original judges of the High Court were wrong in their understanding of what at the time of federation was believed to be the effect of the Constitution and in reading it accordingly. As I see it the Engineers case, looked at as an event in legal and constitutional history, was a consequence of developments that had occurred outside the law courts as well as a cause of further developments there. That is not surprising for the Constitution is not an ordinary statute: it is a fundamental law.
679:
Constitution. However, in the
Engineers' Case, the High Court under the intellectual leadership of Isaacs J insisted that the Constitution was rather to be understood as a statute of the Imperial Parliament and was to be interpreted as such, according to ordinary principles of statutory interpretation. The Court thus rejected the American theories and precedents with which federalism was associated and insisted that specifically British political ideas and exegetical methods should inform and guide the Court. In substitution for the American idea of federalism, the Court asserted that the British system of parliamentary responsible government was especially fundamental to the system
464:
of this Court. If your
Honours will permit me to question all or any of these earlier decisions, I will undertake to advance a sensible argument.' I waited for the heavens to fall. Instead, the Chief Justice said: 'The Court will retire for a few minutes.' And when they came back, he said, 'This case will be adjourned for argument at Sydney. Each government will be notified so that it may apply to intervene. Counsel will be at liberty to challenge any earlier decision of this Court!'
42:
527:
and some are individually rested on reasons not founded on the words of the
Constitution or on any recognized principle of the common law underlying the expressed terms of the Constitution, but on implication drawn from what is called the principle of 'necessity', that being itself referable to no more definite standard than the personal opinion of the Judge who declares it.
459:, then a junior barrister. His account of the hearing in Melbourne on 24 May 1920 before the High Court is that he argued that the government sawmills in Western Australia were not state instrumentalities, as they were trading rather than government enterprises. Menzies records Starke J as describing the argument as nonsense and says
295:, the employers included three governmental employers. The question was whether a Commonwealth law made under the "conciliation and arbitration" power regarding industrial disputes, section 51(xxxv), could authorise the making of an award binding the three employers. The case came before the Full Court on a case stated under the
1074:
835:
391:
198:
609:
It cut off
Australian constitutional law from American precedents, a copious source of thoroughly relevant learning, in favour of crabbed English rules of statutory interpretation, which are one of the sorriest features of English law, and are... particularly unsuited to the interpretation of a rigid
566:
The joint majority judgment then went on to establish that the Crown in its various capacities is bound by the
Constitution. The power of the Commonwealth to bind the States was seen as an aspect of the general conclusion. Its reasoning invoked the notion of the one and indivisible Crown, which is no
463:
I, in what I later realized to be an inspired moment, replied: 'Sir, I quite agree.' 'Well', intervened the Chief
Justice, Chief Justice Knox, never the most genial of interrogators, 'why are you putting an argument which you admit is nonsense?' 'Because' ... 'I am compelled by the earlier decisions
337:
and all are properly seen as among the framers of the
Constitution, The Court described the Constitution as "framed in Australia by Australians, and for the use of the Australian people", thus when the Court spoke of what framers of the Constitution knew, intended or expected, they were referring to
669:
as the correction of antecedent errors or as the uprooting of heresy. To return today to the discarded theories would indeed be an error and the adoption of a heresy. But that is because in 1920 the
Constitution was read in a new light, a light reflected from events that had, over twenty years, led
526:
The more the decisions are examined, and compared with each other and with the Constitution itself, the more evident it becomes that no clear principle can account for them. They are sometimes at variance with the natural meaning of the text of the Constitution; some are irreconcilable with others,
429:
The appointment or departure of a judge from the High Court can change the dynamics within the court. From 1906 to 1913 there had been five appointments, and the death of O'Connor J in 1912. These changes did not however generally change the approach of the High Court. The first sign of significant
898:
the question of intention may be a reference to the intention of the Conventions, the Australian voters who approved the draft constitution, the Australian delegates in London who negotiated the passage of the constitution, the British law officers who redrafted section 74 or to the Houses of the
660:
The Colonies which in 1901 became States in the new Commonwealth were not before then sovereign bodies in any strict legal sense; and certainly the Constitution did not make them so. They were self-governing colonies which, when the Commonwealth came into existence as a new Dominion of the Crown,
531:
The judgment then returned to first principles on how the Constitution is to be interpreted. The use of American precedent was rejected in favour of applying the settled rules of construction that gave primacy to the text of the Constitution and anchored its interpretation to its express words.
678:
Prior to the case, the High Court had interpreted the Constitution with regard to its character as a federal compact between the peoples of the separate colonies of Australia, a conception that the judges no doubt considered to be in line with the consensus of opinion among the framers of the
644:
in this oft-quoted passage: "The prima-facie rule is that a power to legislate with respect to a given subject enables the Parliament to make laws which, upon that subject, affect the operations of the States and their agencies. That, as I have pointed out more than once, is the effect of the
404:
In considering the respective powers of the Commonwealth and of the States it is essential to bear in mind that each is, within the ambit of its authority, a sovereign State, subject only to the restrictions imposed by the Imperial connection and to the provisions of the Constitution, either
420:
The reserved powers doctrine was a principle used in the interpretation of the Constitution that emphasised the context of the Constitution, drawing on principles of federalism, what the court saw as the compact between the newly formed Commonwealth and the former colonies, particularly the
626:, references to United States authority were much less frequent. The majority remarked: "American authorities... are not a secure basis on which to build fundamentally with respect to our own Constitution in secondary... matters they may... afford considerable light and assistance."
683:
The Engineers case has also had an important legacy on the High Court's use of comparative (particularly American) cases in developing federalism. In particular, it has isolated Australian federalism case law from the insights of federalism from the United States Supreme Court.
645:
Engineers case stripped of embellishment and reduced to the form of a legal proposition." Earlier, he had written: "We should avoid pedantic and narrow constructions in dealing with an instrument of government and I do not see why we should be fearful about making implications."
472:
had access to the notebooks of both Knox CJ and Isaacs J, from which he concluded that "It seems quite clear that Menzies lit the fuse in Melbourne, though the main charge for exploding the notion of reciprocal supremacy seems to have been prepared by Isaacs and Rich JJ. in the
631:
Much later, in the 1980s and the 1990s, the Court made extensive use of foreign authorities and comparative law. This use of foreign precedents was associated with the demise of the Privy Council appeal and the Court's recognition of its responsibility to declare the law for
355:
criticised the High Court's approach to the interpretation of the constitution, holding that the relevant question was not the intention of the Australians who framed the Constitution, but rather what the British Parliament had in mind when it passed the
600:
ushered in a period of literal interpretation of the Constitution. Literal interpretation and legalism (of which Sir John Latham was the chief exponent) were characteristic of the Court's constitutional interpretation for the greater part of the 20th
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compromises that informed the text of the constitution. The doctrine involved a restrictive approach to the interpretation of the specific powers of the Federal Parliament to preserve the powers that were intended to be left to the states.
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Some "reservations" were made about State prerogatives and special Commonwealth powers (like over taxation); the reservations eventually became subsumed within some general intergovernmental immunity rules to emerge as the
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447:. The change was described as the departure of statesmen, who interpreted the constitution as a political compact and their replacement by legalists and nationalists, who interpreted it as a legal document.
360:. Despite the criticism, and the challenge by the new appointments to the Court from 1906, the original members of the High Court maintained and continued their approach to constitutional interpretation.
665:, which diverted the flow of constitutional law into new channels. I have never thought it right to regard the discarding of the doctrine of the implied immunity of the States and other results of the
596:
The combination of literal interpretation and a broad construction of Commonwealth powers led to the Commonwealth assuming a dominant position in the Australian federation vis-a-vis the states. The
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Passages of the joint majority judgment discuss the paramountcy of Commonwealth law, which foreshadow the later expansion of Constitution s109 inconsistency doctrine in
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where it was held that municipal corporations responsible for the making, maintenance, control and lighting of public streets were not State instrumentalities.
1535:– Proceedings of a seminar held 31 August 1995 to mark the 75th Anniversary of the case, Eds. Michael Coper and George Williams, Federation Press, March 1997.
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More dramatic consequences flowed, however, from the retirement of Griffith CJ in 1919, the death of Barton J in 1920 and their replacement by
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but the court did not confine itself to that question, using the opportunity to roam broadly over constitutional interpretation.
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Constitution.... The fundamental criticism of the decision is that its real ground is nowhere stated in the majority judgment.
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was delivered by Isaacs J and its authorship is commonly attributed to him based on its style which was long, rhetorical and
674:
Constitutional scholar, Nicholas Aroney, has been critical of Isaacs' reasoning inconsistent with the Court's jurisprudence:
166:) the States, when parties to an industrial dispute in fact, are subject to the Commonwealth legislation passed pursuant to
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their personal experience in that process, and not to the intention or knowledge of the Imperial Parliament in passing the
551:, which had been the foundation case for the original intergovernmental immunities doctrine. It has been said that the
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expressed or necessarily implied... a right of sovereignty subject to extrinsic control is a contradiction in terms.
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Federated Amalgamated Government Railway & Tramway Service Association v NSW Rail Traffic Employees Association
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longer part of Australian jurisprudence, but that conclusion is capable of being reached without such a notion.
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1476:"Constitutional Choices in the Work Choices Case, or What Exactly Is Wrong with the Reserved Powers Doctrine?"
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Despite the case, doctrine can be based on an implication from the text or structure of the Constitution. Sir
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was attacked as resting on opinions "as to hopes and expectations respecting vague external conditions".
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The joint majority opinion of the Court reviewed the jurisprudence of the Griffith Court and declared:
477:. Yet it was Leverrier's, rather than Menzies' advocacy which seems to have had the greatest impact".
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non-interference principle lives on in the second ("rights impairment") test of inconsistency.
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The Amalgamated Society of Engineers v The Adelaide Steamship Company Limited and Ors
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attacks the reasoning in D'Emden, but rationalises the conclusion. A later case (
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on 31 August 1920. The immediate issue concerned the Commonwealth's power under
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Amalgamated Society of Engineers v Adelaide Steamship Co Ltd (Engineers case)
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The original High Court tended to employ the US jurisprudence governing
1356:"High Court of Australia: A Personal Impression of its first 100 years"
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Attorney-General for Queensland v Attorney-General for the Commonwealth
557:
Attorney-General for Queensland v Attorney-General for the Commonwealth
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246:
Widely regarded as one of the most important cases ever decided by the
109:
Minister for Trading Concerns (WA) v Amalgamated Society of Engineers
1508:
1254:"Three cheers for Engineers: 75th Anniversary of the Engineers Case"
640:, in particular, was critical of any such overblown reading of the
746:
Booker, Keven; Glass, Arthur; Watt, Rob (1998). "3 at paras -".
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The decision has had its critics. In 1937, R.T.E. Latham wrote:
1574:
Intergovernmental immunity in the Australian Constitution cases
1379:
Australian Federal Constitutional Law: Commentary and Materials
258:, thus paving the way for fundamental changes in the nature of
1524:
Amalgamated Society of Engineers v. Adelaide Steamship Co Ltd.
18:
Amalgamated Society of Engineers v Adelaide Steamship Co. Ltd.
1569:
Trade and commerce power in the Australian Constitution cases
515:
J wrote a separate opinion but came to a similar conclusion.
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1 at - per Gleeson CJ, Gummow, Hayne, Heydon and Crennan JJ.
291:
for an award relating to 844 employers across Australia. In
222:
Amalgamated Society of Engineers v Adelaide Steamship Co Ltd
35:
Amalgamated Society of Engineers v Adelaide Steamship Co Ltd
1183:
The High Court, the Constitution and Australian Politics
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at pp. 141–2 per Knox CJ, Isaacs, Rich & Starke JJ.
1176:
A Twomey (2015). "Ch 6 the Knox Court". In Dixon, R;
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at p. 146 per Knox CJ, Isaacs, Rich & Starke JJ.
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at p. 69-7 per Grifith CJ, Barton & O'Connor JJ.
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1138:was appointed in 1913 but never sat as a judge.
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1377:quoted in Winterton, Lee, Glass and Thomson,
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545:The Court considered its earlier decision in
333:JJ, had all been leading participants in the
307:The three original judges of the High Court,
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1214:Central Power of the Australian Commonwealth
973:Huddart, Parker & Co Pty Ltd v Moorehead
325:, and the two new judges appointed in 1906,
748:Federal Constitutional Law: An Introduction
174:(per Knox CJ, Isaacs, Rich & Starke JJ;
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863:Commonwealth of Australia Constitution Act
340:Commonwealth of Australia Constitution Act
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1500:Engineers' Problematic Comparative Legacy
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750:(2nd ed.). Sydney: Federation Press.
250:, it swept away the earlier doctrines of
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937:(on appeal from Vic, Australia).
883:Baxter v Commissioners of Taxation (NSW)
27:Judgement of the High Court of Australia
1503:, (2020) 31(1) Public Law Review 22-27
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652:J made the following assessment of the
425:Changes to the composition of the court
588:Former Chief Justice of Australia Sir
370:Intergovernmental immunity (Australia)
191:This case overturned a previous ruling
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694:List of High Court of Australia cases
7:
922:
364:Implied intergovernmental immunities
252:implied intergovernmental immunities
279:arose out of a claim lodged by the
1327:Clyde Engineering Co Ltd v Cowburn
899:British Parliament who passed the
894:at p. 1169-70 that in relation to
573:Clyde Engineering Co Ltd v Cowburn
455:The Engineers were represented by
25:
231:, was a landmark decision by the
281:Amalgamated Society of Engineers
176:Higgins J concurring separately;
1486:Melbourne University Law Review
1480:Melbourne University Law Review
1464:353 at p. 396-7 per Windeyer J.
1366:Melbourne University Law Review
1360:Melbourne University Law Review
485:The joint majority judgment of
1533:How Many Cheers For Engineers?
1238:, counsel for the Commonwealth
1186:. Cambridge University Press.
896:section 74 of the Constitution
1:
1584:Maritime history of Australia
1564:Australian constitutional law
1549:High Court of Australia cases
1431:Airlines Nationalisation case
400:declared in the first case:
1610:
1594:Adelaide Steamship Company
1589:Australian labour case law
1527:Australian Taxation Office
1409:Melbourne Corporation case
1381:(Law Book Co. 1999) at 757
969:at p. 514 per Griffith CJ.
413:
376:intergovernmental immunity
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335:Constitutional Conventions
285:Adelaide Steamship Company
178:Gavan Duffy J dissenting)
1474:Aroney, Nicholas (2008).
196:
189:
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927:[1906] UKPCHCA 4
767:Reference to Full Court.
416:Reserved powers doctrine
225:, commonly known as the
979:at p. 563 per Barton J.
430:change was in the 1919
260:federalism in Australia
248:High Court of Australia
233:High Court of Australia
53:High Court of Australia
1554:1920 in Australian law
1458:[1971] HCA 16
919:[1906] UKPC 75
888:[1907] HCA 76
836:Railway Servants' case
805:[1904] HCA 21
783:[2006] HCA 52
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576:: The language of the
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393:Railway Servants' case
1442:at p. 85 per Dixon J.
1436:[1945] HCA 41
1420:at p. 78 per Dixon J.
1414:[1947] HCA 26
1310:[1915] HCA 39
1157:[1919] HCA 73
1080:[1904] HCA 1
1058:[1904] HCA 57
1036:[1904] HCA 1
953:[1908] HCA 43
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841:[1904] HCA 1
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256:reserved state powers
204:[1906] HCA 94
86:[1920] HCA 54
1332:[1926] HCA 6
1290:[1904] HCA 1
800:Peterswald v Bartley
778:The WorkChoices case
170:of the Constitution.
1498:Partlett, William,
1003:on 15 February 2017
880:Higgins J noted in
475:Municipalities Case
433:Municipalities Case
1250:Sir Gerard Brennan
1015:Federal Law Review
761:Judiciary Act 1903
1579:Arbitration cases
1396:(1920) 28 CLR 129
1336:(1926) 37 CLR 466
1314:(1915) 20 CLR 148
1272:(1920) 28 CLR 129
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892:(1907) 4 CLR 1087
731:(1920) 28 CLR 129
648:Writing in 1971,
468:Writing in 1995,
293:Western Australia
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1218:. pp.
1178:Williams, G
1125:Gavan Duffy
933: 356,
903:1900 (Imp).
865:1900 (Imp)"
833:at p. 113;
618:Before the
517:Gavan Duffy
398:Griffith CJ
140:Gavan Duffy
1543:Categories
1364:(2003) 27
1232:Leverrier
1136:Piddington
1013:(2003) 31
989:A Twomey.
948:R v Barger
925: 81;
847:at p. 536.
700:References
638:Owen Dixon
632:Australia.
542:doctrine.
470:Brennan CJ
390:, and the
266:Background
237:s 51(xxxv)
168:s 51(xxxv)
1248:The Hon.
1097:French, R
765:s 18
208:(1906) 4
77:Citations
1354:(2003).
1252:(1995).
1210:(1967).
1180:(eds.).
1099:(2015).
921:,
688:See also
650:Windeyer
601:century.
481:Judgment
451:Argument
445:Starke J
320:O'Connor
309:Griffith
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1121:Higgins
1007:19 June
561:D'Emden
513:Higgins
509:polemic
441:Knox CJ
342:1900.
331:Higgins
287:in the
239:of the
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1188:ISBN
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