Interpretation and Cooperative Federalism: Bond v R from a Constitutional Perspective

AuthorDarryl Smith,James McConvill
Publication Date01 Mar 2001
James McConvill and Darryl Smith
[C]o-operative federalism is not a constitutional term. It is a political slogan, not a
criterion of constitutional validity or power. … Where constitutional power does not
exist, no cry of co-operative federalism can supply it. If the object lies outside the reach or
the effect of what a State or the Common-wealth can constitutionally do, the subject
matter is beyond the reach of the legislature. 1
Co-operative federalism is the process by which the Commonwealth and the States
organise for their overlapping constitutional powers to be exercised concurrently in
order to achieve national outcomes through consensual processes.2 Beginning with Re
* BCom/LLB student; LLB student (respectively), Deakin University—Melbourne Campus.
The authors wish to thank a number of people for their helpful suggestio ns and comments,
in particular Professor George Williams (University of New South Wales), Professor
George Winterton (University of New South Wales), along with Dr Danuta Mendelson and
Richard Haigh, both of Deakin University. Of course, any errors or omissions are the
responsibility of the authors alone.
1 Re Wakim; Ex parte McNally (1999) 198 CLR 511 ('Re Wakim') at 556 per McHugh J. See also
McHugh J's pertinent comment in McGinty v Western Australia (1996) 186 CLR 140 at 231-
32: "After the decision of this Court in the Engineers' Case, the Court had consistently held, prior
to Nationwide News and Australian Capital Television Pty Ltd v The Commonwealth, that it is not
legitimate to construe the Constitution by reference to political principles or theories that are not
anchored in the text of the Constitution or are not necessary implications from its structure"
(emphasis added).
For a discussion of the High Court's alternative "flexible" approach to constitutional
interpretation, refer to J McConvill "The United Kingdom is a Foreign Power- Sue v Hill"
(2000) 4(2) Deakin L R 151.
2 B Galligan, "The Future of Australian Federalism" in S Prasser and G Starr (eds), Policy and
Change: The Howard Mandate (1997) at 97; M Longo, "Co-operative Federalism in Australia
and the European Union: Cross-Polluting the Green Ideal" (1997) 25 F L Rev 127 at 147;
Deputy Commissioner of Taxation (NSW) v WR Moran Pty Ltd (1939) 61 CLR 735 at 774 per
Starke J: "Cooperation on the part of the Commonwealth and the States may well achieve
objectives that neither could achieve; that is often the end and the advantage of cooperation"
(emphasis added); A de Costa, "The Corporations Law and Cooperative Federalism after
The Queen v Hughes" (2000) 22 Syd L R 451 at 465: "The implicit constitutional principle of
cooperative federalism acknowledges that Australian governments may work together to
produce results … that could not be achieved by each acting alone" (citations omitted). See
76 Federal Law Review Volume 29
Wakim,3 the controversial cross-vesting case, from which the opening statement above
by Justice McHugh was taken, the High Court has applied a restrictive approach to
interpreting constitutional and statutory provisions when cooperative arrangements
have been challenged.4
According to Professor George Williams:
Recent interpretation of the Constitution has placed great strain upon co-operative
federalism… The appointment of five new judges to the High Court since 1995 has
brought about a dramatic shift in approach. It appears that the court is no longer willing to
positively shape the Constitution to promote o-operation.5
The result is that, however convenient and effective these examples of co-operative
federalism in action proved to be, they have been ruled invalid by the High Court on
the basis of "dry and technical"6 legal points. This occurred in the recent case of Bond v
This paper provides an analysis of the High Court's contemporary approach to
legal and constitutional issues concerning cooperative federalism, using Bond v R as a
key case study.
The Commonwealth DPP knocked on the Court's door. But as he had no lawful authority
to do so, the Court could not bid him e nter. It could only open its door a fraction to say so
and to send him on his way.8
On 5 February 1997, Murray J in the Supreme Court of Western Australia sentenced
disgraced entrepreneur Alan Bond to three years imprisonment for each of the two
offences for which he was prosecuted (failing to act honestly in his capacity as an
officer of a company, with intent to defraud its shareholders, contrary to ss 229(1)(b)
and 570 of the Companies (Western Australia) Code). Each sentence was to be served
cumulatively upon a sentence already being served by Bond, and therefore the total
effective sentence was four years imprisonment.
also the joint judgment of Gleeson CJ, Gaudron, Gummow, Hayne and Callinan JJ in The
Queen v Hughes (2000) 171 ALR 155 at 167-168.
3Re Wakim; Ex parte McNally (1999) 198 CLR 511. Re Wakim was actually a sequel to an earlier
High Court decision, Gould v Brown (1998) 193 CLR 346. In Gould v Brown, the Court was
split 3:3 as to the question of whether cross-vesting legislation was constitutionally invalid.
Because of this, the unanimous decision of the Federal Court of Australia upholding the
validity of the legislation (BP Australia v Amann Aviation (1996) 137 ALR 447) was not
4See J Kirk, "Constitutional Interpretation and a Theory of Evolutionary Originalism" (1999)
27 F L Rev 321, for criticism of the legalism applied in Re Wakim.
5 G Williams, "Power to the people to alter constitutional flaws" Financial Review 24 March
2000 at 30-31. See also G Williams, "The Real Answer is Constitutional Reform" Financial
Review 1 December 2000 at 41.
6 Bond v R (2000) 169 ALR 607 at 608 ('Bond').
8 Byrnes v R (1999) 199 CLR 1 at 38 per Kirby J ('Byrnes').

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