LAWS1116 Lecture 4

Limited Powers

Engineer’s Case

  • Isaacs JJ: One of the worst written judgements ever
  • Modern status of the case: Still relevant to Commonwealth Heads of Power, but mostly overruled
  • Issue: Did the Commonwealth Power under s51 (xxxv) (The power to arbitrate interstate industrial disputes) extend to binding statutory entities created by a Western Australian government? In effect, should the states be free to control their own employees?
  • Ruling: Yes, the Commonwealth Power extends as far as it wants to
  • Justification:
    • The Australian Constitution is an Act of the Imperial Parliament (British Parliament under their colonial jurisdiction)
    • Therefore we should use standard UK principles of interpretation and cases to aid in our interpretation, not US cases
    • This meant that it should be read as broadly as possible, and the Commonwealth Parliament is effectively sovereign except where the wording of the constitution specifically state it isn’t.
    • Therefore section 109 should be read as evidence that the Commonwealth Parliament is more powerful than the states.
    • It was based on the idea of Westminster style “responsible” government and not “federation” (at least as far as Isaacs was concerned), which meant the House of Representatives was the only important Commonwealth Government
    • Furthermore, the crown is one and indivisible, and since statutes *can* bind the crown, a Commonwealth statute can bind any state government

UK Principles

  • The crown is ‘one and indivisible’ (the same crown for both states and the commonwealth – note that this viewpoint is no longer held, and was contentious even at the time)
  • Statutes CAN bind the crown (legislative supremacy over the executive – executive only acts on the advice of the popularly supported representative of the legislature)
  • Must use the ‘natural meaning’ and ‘actual terms’ of the constitution (textualism) rather than honouring the federal compact (originalism). Effectively – intention can ONLY come from the words, not federal theory
  • Must find any limitations on the power of the legislature in the express or NECESSARILY implied meaning of the WORDS THEMSELVES
  • As UK House of Lords is not democratically elected and is weak, any system based on the UK system must also have a weak upper house.

Effects on Federal Powers

  • Commonwealth powers became ‘plenary and ample’ – with sections 51 and 52 given the widest meaning possible
  • Railway Servant’s Case – overruled (Only the commonwealth legislature is supreme – state legislatures are subordinate, based on a creative interpretation of section 109)
  • D’Emden, Baxter – upheld, but re-interpreted – now used as evidence OF commonwealth supremacy, based on the same creative interpretation of s109

Crown Immunity

  • Section 61 vested power in the crown
  • “Crown” consists of the executive – Queen, Governors, Governor-General, Ministers, Departments, and even statutory authorities/government corporations
  • Historically immune, but recently (17th century) became able to be bound by the legislature
  • ‘Crown in right of Queensland’ refers to Queensland executive power, and is different and separate to the ‘Crown in right of the Commonwealth’

Limited Powers Cases

Melbourne Corporations (1947)

  • Issue: Does the Commonwealth banking power in section 51 (xiii) grant the power to prevent banks from providing services to the states? (Part of an attempt to nationalize the banking system)
  • Held: No, it did not
  • Justification: The Commonwealth is not permitted to control the states – they are independent bodies referenced in the constitution, and must remain so. Therefore a law attacking state functions (minority) or discriminating against the states (majority) is not constitutional. In effect, the Commonwealth cannot pass a law singling out the states and discriminating against them.
  • Engineer’s Case was upheld, but only its decisive issue – that Commonwealth law *can* bind the states – additional limitations (the ‘limited powers’ doctrine) was introduced limiting the manner in which it could do so.

Commonwealth v Cigamatic

  • Issue: Do the states have the power to abrogate the Commonwealth/Crown rights to first repayment of debts? (In effect, can they pass a law requiring bankrupt companies to finish paying off their employees before their tax debts)
  • Held: The states cannot bind the Commonwealth in this way – where supremacy does exist, it belongs to the Commonwealth (s109), with state powers remaining merely residual.

Queensland Electricity v Commonwealth (1985)

  • Issue: Engineer’s Case redux – did the Commonwealth Power under s51 (xxxv) (the power to arbitrate industrial disputes) extend to passing an Act targeting a trade union dispute occurring entirely within Queensland?
  • Held: No, this would go beyond the limited powers of the Commonwealth
  • Justification: It was a law singling out and discriminating against Queensland. Two elements needed to show discrimination:
  • 1) places on the States a "special burden or disability"
  • 2)the law (of general application) would operate to destroy or curtail the continued existence of the States or their capacity to function as governments

Re Australian Education Union (1995)

  • Issue: Could employees of the Victorian Government seek protection under Commonwealth Contract Law instead?
  • Held: Yes, for the most part, but not appropriate under certain conditions.
  • Addendum: This limited powers ‘immunity’ protects state capacity TO function, but not the EXERCISE of those functions – so the states must continue to exist, but what they actually have the power to *do* is debatable
  • In relation to Fed laws imposing on a State labour force, some impositions are constitutional, others are not:
  • Constitutional —> Federal government determining general wages, working conditions
  • Unconstitutional —> the Government's right to determine the number & identity of who it employs. Also, for higher level employees, their working conditions. These impositions would impair the states ability to function as a government

Native Title Act (1994-95)

  • Issue: Did a Commonwealth Act limiting the States capacity to respond regarding Native title/mandating a payment to extinguish it unfairly discriminate against Western Australia, which had more crown land than any other state, and/or interfere with its capacity to function?
  • Held: No, it did not – the discrimination was purely a function of geography and history, not targeted at WA, and did not serve to impair its capacity to function

Industrial Relations Act (1996)

  • Issue: Did the Commonwealth ‘external affairs’ power (particularly in the aftermath of Tasmanian Dams) extend to implementing industrial relations changes that had been agreed to in an international treaty?
  • Held: Yes, it did – the law is valid, but does not bind states/state employees, as they need to retain control over their employees in order to continue to function

Austin v Commonwealth (2003)

  • Issue: Did superannuation taxes imposed upon high level state judges constitute significantly impairing the independence of the states?
  • Held: Yes, it did – impaired the freedom of the states to select the manner and method by which they paid their judges
  • Addendum: Removed the ‘two limb’ theory and replaced it with a single theory on when limited powers would result in state immunity:

State Immunity (After Austin)

  • The Commonwealth cannot pass any law that discriminates against the states in general, or a state specifically, or destroys or significantly impairs its independence.