Foundations of Australian Federalism and the Role of Judicial Review
| Author | Stephen Gageler |
| Published date | 01 September 1987 |
| Date | 01 September 1987 |
| DOI | 10.1177/0067205X8701700303 |
| Subject Matter | Article |
FOUNDATIONS OF AUSTRALIAN FEDERALISM AND THE
ROLE OF JUDICIAL REVIEW
STEPHEN
GAGELER*
The High Court . . . is properly termed the "keystone
of
the federal arch".
-Alfred Deakin 1
I take it as an incontrovertible axiom that responsible government
is
to be the keystone
of
this federal arch. -Isaac Isaacs2
INTRODUCTION
Federalism inevitably involves a dynamic
of
centripetal and centrifugal
forces:3 a tension between competing tendencies
of
centralization and decen-
tralization. Throughout the greater part of the history
of
the Commonwealth of
Australia, the underlying assumption of scholars and practitioners of con-
stitutional
law
has been that these forces, if left unchecked, would tend towards
the impairment or destruction
of
the federal system through implosion or
explosion. The maintenance of the "federal balance" has been seen
to
be
the
province of the High Court. The Australian experience has thus often been said
to
exhibit one of the characteristics identified
by
Albert Venn Dicey more than a
century ago
as
the essential indicia
of
federalism. "Federalism", wrote Dicey,
means "legalism", which
he
defined
in
part
to
mean "the predominance of the
judiciary
in
the constitution".
4
As
a description of contemporary Australian constitutional law, however,
Dicey's statement is apt to be misleading. The publicity
now
being given
to
the
role of the High Court
in
constitutional adjudication and
its
discovery
as
a
"political" institution,5 have tended
to
obscure a major consequence
of
its recent
* B Ec,
LL
B (Hons) (ANU); LL M (Harvard). I wish
to
thank Mr Geoffrey Lindell, Dr James
Thomson and Dr Gary Rumble for their comments on the draft
of
this article.
All
errors
and
omissions are entirely
my
own.
1 Commonwealth Parliamentary Debates
Vol
8, 10967 (1902); quoted
in
Bennett, Keystone
of
the
Federal Arch (1980) iii.
2 Official Report
of
the National Australasian Convention Debates, Adelaide, March
22-
May 5,
1897 (1897) 169.
3 Menzies, Central Power in the Australian Commonwealth: An Examination
of
the Growth
of
Commonwealth Power in the Austraian Federation (1967) 2-3.
4 Dicey, The Law
of
the Constitution (lOth ed 1960) 175. References to Dicey's
use
of
the term
"legalism" are legion
in
writings on Australian Constitutional Law. Eg Zines, The High Court and
the Constitution (2nd ed 1987) ix; Wynes, Legislative, Executive and Judicial Powers in Australia
(4th ed 1970)
3;
Else-Mitchell (ed), Essays on the Australian Constitution (2nd ed 1961) xxix;
Bailey, "The Working
of
the Australian Constitution Since Federation"
in
Portus (ed), Studies in the
Australian Constitution (1933) Ch II; Clark, Studies in Australian Constitutional Law (2nd ed 1905)
5;
Clark, "The Supremacy
of
the Judiciary under the Constitution
of
the United States, and under the
Constitution
of
the Commonwealth
of
Australia" (1903)
17
Harv L
Rev
I. The other part
of
Dicey's
definition
of
"legalism", "the prevalence
of
a spirit
of
legality among the people", has always been
of
doubtful applicability to Australia. The Constitutional Commission has commented that the "level
of
awareness
of
our Constitution among Australians has been abysmally low": Constitutional Commis-
sion Media Release December
31
1987.
5 See Galligan, Politics
of
the High Court (1987); Galligan, "The 'Dams' Case: A Political
Analysis"
in
Sornarajah (ed), The South West Dam Dispute: the Legal and Political Issues (1983)
102;
Galligan, "Legitimating Judicial Review: The Politics
of
Legalism" (1981) 8 Journal
of
Australian Studies 33.
1987]
Foundations
of
Australian Federalism
-Judicial
Review
163
decisions.
By
broadening its interpretation
of
Commonwealth legislative power6
and
by
loosening the constraints
on
government action affecting inter-state trade
imposed
by
s
92/
the High Court
has
displayed
an
increasing tendency
to
leave
the final determination of the "federal balance"
to
the political and not the legal
process. Moreover, the political process
is
increasingly proving itself
to
be
a
means through which the centripetal and centrifugal forces of federalism tend
towards equilibrium.
This theme strikes at the root
of
the standard lawyer's conception
of
the role
of
the High Court in Australian federalism.
If
it
is
not the Court, through legalism,
but the political process, through the ordinary workings of government, which
is
emerging
as
the foundation upon which the contemporary federal order
is
based,
then some re-assessment
of
the position
of
the High Court within Australian
federalism
is
called for.
This article does not seek
to
support empirically the observation that a federal
political equilibrium exists
in
Australia, nor to justify the level at which
equilibrium may
be
reached. Although
its
detailed analysis awaits further study,
the existence
of
a political equilibrium within the federal system
has
become the
subject
of
increasing comment. 8 The question of the efficacy of its level at
any
given time
is
inseparable from the wider question
of
the functional justification
for federalism and
is
an
issue which
has
traditionally caused divisions along
party-political lines. 9
This article rather focuses
on
the position of the High Court and the institution
of
judicial review under the Australian Constitution and presents
an
historical
and
jurisprudential argument for its re-orientation. The argument
is
that,
in
the
6Eg Constitution, s
51
(xx) (corporations power); Actors & Announcers Equity v Fontana Films
Pty Ltd (1982)
ISO
CLR 169; Fencott v Muller (1983)
142
CLR 570; Commonwealth v Tasmania
(the Tasmanian Dam case) (1983)
158
CLR I; Richardson v The Forestry Commission
0988)
77
ALR 237; Constitution. s
51
(xxix) (external affairs power); Koowarta v Bjelke-Petersen (1982)
153
CLR 168; the Tasmanian Dam case. Constitutions
51
(xxxv) (conciliation and arbitration power);
Reg v Coldham: ex parte Australian Social Welfare Union (1983)
153
CLR 297; Reg v Ludeke;
ex
parte Queensland Electricity Commission (1985) 159 CLR 178;
Re
Lee; ex parte Harper (1986) 160
CLR 430. The cases on s
51
(xxi) (marriage power) and (xxii) (divorce and matrimonial
cau~s
power) constitute an exception to this trend: In the Marriage
of
Cormick (1984) 156 CLR 170; Reg v
Cook;
ex
parte C (1985) 156 CLR 249;
Re
F; ex parte F (1986)
161
CLR 438.
7 Constitution s 92: "On the imposition
of
uniform duties
of
customs, trade, commerce, and
intercourse among the states
...
shall be absolutely free." See especially, David Miller
vTCN
Channel Nine (1986)
161
CLR 556, 570-571, 617-618. See now Cole v Whitfield (1988) 78 ALR
42, decided after the preparation
of
the text
of
this article.
&rite
pioneering work was Partridge, "The Politics
of
Federalism" in Sawer (ed), Federalism:
An
Australian Jubilee Study (1952) 174. See now: Scott, "Australian Federalism Renewed" in Patience
and Scott (eds), Australian Federalism: Future Tense (1983)
I-ll;
Sharman, "The Australian Senate
as a States House" in Jaensch (ed) The Politics
of
"New Federalism" (1977) 64-75; Holmes and
Sharman, The Australian Federal System (1977); Holmes "The Australian Federal Process" in Mayer
and Nelson (eds), Australian Politics: A Fourth Reader (1976) 327-346. In a speech at the dinner to
mark the publication
of
Volume
14
Nos 3 and 4
of
the Federal Law Review in Canberra on April 24
1985, the Secretary
of
the Commonwealth Attorney-General's Department, Mr Pat Brazil, said:
"I
believe that the 'federal balance' under the Australian Constitution will continue to be, as it has
always been, heavily dependent upon the political processes and forces within Australia at the
relevant time." ·
9 See generally: Head, ''The Political Crisis
of
Australian Federalism" in Patience and Scott (eds),
supra n 8, 75-79, 81-82. Maddox, "The Federal Environment
of
Australian Politics" in Hanley and
Cooper (eds) Man and the Austraian Environment ( 1982) 295-301. For
the
survey
of
the literature on
arguments for and against the maintenance
of
the federal system in Australia, see McMillan, Evans
and Storey (eds), Australia's Constitution: Time
for
Change? (1983) 138-140.
164 Federal Law Review [VOLUME
17
institution
of
responsible government, the political process is recognized
in
the
Australian Constitution as a mechanism
of
constitutional constraint capable
of
operating in relation to issues
of
federalism, and that it is to the primacy
of
the
political process that the institution
of
judicial review is most appropriately
adapted.
This argument is developed in several stages. Part I identifies potentially
competing notions
of
constitutionalism in the Australian Constitution: one based
on legalism and the separation
of
powers and the other based on the primacy
of
the political process. Part II argues that the "strict and complete legalism", often
advocated by the High Court
in
the past and still clung to
in
a residuary way, is
of
its nature incapable
of
generating satisfactory outcomes to constitutional dis-
putes. Part III examines the Engineers' case10 and subsequent developments in
the interpretation
of
Commonwealth legislative powers in the light
of
the
perception
of
responsible government as a mechanism
of
constitutional con-
. straint.
It
also surveys significant developments in American constitutional
thought. Finally, Part IV advocates a role for the judiciary which
is
one
of
policing rather than containing the political process.
1 COMPETING CONSTITUTIONALISMS
The Australian Constitution embodies two constitutional traditions. While
modelled partly on the Constitution
of
the United States, it incorporates the
British notion
of
responsible government. That these traditions are
in
tension is
widely recognized and has been portrayed as a source
of
the constitutional crisis
of
1975.
11
The significance
of
this tension for the role
of
the judiciary in the
interpretation
of
Commonwealth and State legislative powers, however, has been
generally ignored by legal scholars. Its appreciation requires some explanation
of
the history and character
of
the two traditions.
The Constitution
of
the United States, formed
in
the period
of
post-revolution-
ary unrest which followed the American War
of
Independence, was conceived in
an atmosphere
of
fear: fear
of
despotism by a ruling elite unresponsive to the
needs
of
the people -the experience which had led to war with Britain -and
also fear
of
majoritarian tyranny and factionalism within popularly elected local
assemblies-
the immediate post-war experience
of
a number
of
the liberated
American colonies under the loosely formed Articles
of
Confederation. 12 Writing
10
Amalgamated Society
of
Engineers v Adelaide Steamship Co Ltd (the. Engineers' case) ( 1920)
28
CLR 129.
11
Howard and Saunders, "The Blocking
of
the Budget and Dismissal
of
the Government" in Evans
(ed) Labor and the Constitution 1972-1975 (1977) 251-287. The authors state:
The fundamental cause
of
the constitutional troubles which came upon Australia in
1975
lies
in
the self-contradictory character
of
our machinery
of
government. The framers
of
the Australian
Constitution wished both to create a federal structure and to preserve parliamentary government
of
the British kind. These two aims were, and are, incompatible.
See also Thompson, "The 'Washminster' Mutation"
in
Weller and Jaensch (eds), Responsible
Government in Australia ( 1980) 32-40; Mallory, "Politics by Other Means: the Courts and the
Westminster Model in Australia" ( 1979)
17
The Journal
of
Commonwealth and Comparative Politics
3. On a more general level see Moffat, "Philosophical Foundations
of
the Australian Constitutional
Tradition" (1965-1967) 5 Syd UL Rev 59. Contrast Reg v Kirby: ex parte Boilermakers' Society
of
Australia (1956) 94 CLR 254, 275.
12 See generally Wood, The Creation
of
the American Republic 1776-1787 (1969); Mcilwain,
Constitutionalism and the Changing World (1939) 245-6.
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