Justice Windeyer on the Engineers' Case

DOI10.22145/flr.37.3.2
Date01 September 2009
Published date01 September 2009
Subject MatterArticle
JUSTICE WINDEYER ON THE ENGINEERS' CASE
Jeffrey Goldsworthy*
1 WINDEYER J'S DICTUM
In their majority judgment in the Work Choices Case, five Justices of the High Court
endorsed a well known obiter dictum of Windeyer J in Victoria v Commonwealth ('the
Payroll Tax Case').1 The dictum concerns the Engineers' Case, which famously
repudiated the doctrines of implied intergovernmental immunities and reserved state
powers, previously held by the Griffith Court to be entailed by the federal principle
implicit in the basic structure of the Constitution.2 The Court in Engineers declared that
both doctrines, and the reasoning on which they were based, were erroneous. But
Windeyer J disagreed with this. He said that he had never regarded the decision in
Engineers 'as the correction of antecedent errors or as the uprooting of heresy': it '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.' Rather, the decision 'was a consequence of
developments that had occurred outside the law courts': 'in 1920 the Constitution was
read in a new light, a light reflected from events that had, over twenty years, led to a
growing realisation that Australians were now one people and Australia one country
and that national laws might meet national needs'. 'In any country where the spirit of
the common law holds sway the enunciation by courts of constitutional principles
based on the interpretation of a written Constitution may vary and develop in
response to changing circumstances.' He implied that the relevant circumstances had
not changed since Engineers: 'To return today to the discarded theories would indeed
be an error and the adoption of a heresy.'3
This was not the reason given for its decision by the majority in Engineers, which
argued at length that the repudiated doctrines had always been legally erroneous. It is
not clear whether Windeyer J thought that some or all of the majority chose to conceal
the real reasons for their decision, or were ignorant of them because they operated at a
subconscious level. In another well known assessment of the decision, which no doubt
influenced Windeyer J, Richard Latham seems to have taken the former view, when he
_____________________________________________________________________________________
* Professor of Law, Faculty of Law, Monash University. Correspondence to
jeff.goldsworthy@law.monash.edu.au>.
1 New South Wales v Commonwealth (2006) 229 CLR 1, 119 (Gleeson CJ, Gummow, Hayne,
Heydon and Crennan JJ) ('Work Choices'), citing Victoria v Commonwealth (1971) 122 CLR
353, 396–7 (Windeyer J) ('Payroll Tax Case').
2 Amalgamated Society of Engineers v Adelaide Steamship Co Ltd (1920) 28 CLR 129 ('Engineers').
3 Payroll Tax Case (1971) 122 CLR 353, 396.

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT