The Centralisation of Judicial Power within the Australian Federal System

Date01 June 2014
Published date01 June 2014
Subject MatterArticle
James Stellios*
This article considers the pa tterns of centralisation within the federal judicial system.
While centralisation of legislative, executive and fiscal power within the federal system
has been well documented, the architecture of judicial federalism has been the subject
of less attention. The article, f irst, seeks to show that principle s derived from Chapter
III of the Constitution ha ve, on the whole, exhibite d broadly similar centralis ing
characteristics and exerted centralising effects, and, secondly, offers explanations for
this centralisation.
The centralisation of power wit hin the Australian federal system has been well
documented. The expansion of federa l legislative power is well known. The High
Court has developed characterisation principles1 and other rules of interpretation2 that
allow expansive readings of federa l heads of legislative power. 3 The federal
* Associate Professor, ANU College of Law; Barrister, NSW Bar. My thanks to Professor
Peter Cane for his valuable comments and to the anonymous referees for their very helpful
suggestions. Earlier versions of this article were presented at the ANU College of Law, the
Australian Association of Constitutional Law, Melbourne, and the Attorney-General’s
Department Constitutional Law Symposium, Canberra. I am very grateful for the
comments of participants at those events, particularly the commentators in Melbourne,
Kristen Walker and Charles Parkinson. The work in this article is part of a larger project
supported under the Australian Research Council’s Discovery Projects funding scheme:
1 Murphyores Incorporated Pty Ltd v Common wealth (1976) 136 CLR 1; New South Wales v
Commonwealth (2006) 229 CLR 1 (‘Work Choices’).
2 Amalgamated Society of Engineers v Adel aide Steamship Co Ltd (1920) 28 CLR 129 (‘Engineers
3 See generally Leslie Zines, ‘Changing Attitudes to Federalism and its Purpose’ in Robert
French, Geoffrey Lindell and Cheryl Saunders (eds), Reflections on the Australian
Constitution (Federation Press, 2003) 86; James Allan and Nicholas Aroney, An Uncommon
Court: How the High Court of Australia has Undermined Australian Federalism’ (2008) 30
Sydney Law Review 245; Nicholas Aroney, ‘Constitutional Choices in the Work Choices
Case, or What Exactly is Wrong with the Reserved Powers Doctrine’ (2008) 32 Melbourne
University Law Review 1; Senate Select Committee on the Reform of the Australian
Federation, Parliament of Australia, Australia’s Federation: An Agenda for Reform (2011).
358 Federal Law Review Volume 42
Parliament can reach into areas traditionally regulated by the States, and achieve
purposes and pursue policies that are not obviously federal in nature. Examples
frequently given include the regulation of the environment,4 industrial relatio ns5 and
human rights. 6 The federal Parliament can use taxation as a regulatory too l, not just as
a means to fill the public purse. 7 Furthermore, the Commonwealth can, pursuant to s
96 of the Constitution, grant money to the States under wid e reaching and controlling
conditions that require States to achieve federal policy agendas and, indeed, reduce
States to instruments for the achievement of f ederal policy priorities. 8 The control of
education and the health syste m are common examples ide ntified when commentators
express concern about the federal imbalance.9
The High Court’s broad interpretations of the Commonwealth’s revenue raising
power,10 the facilitatio n of a federal income tax monopoly,11 a nd the narrowing (under
s 90) of state power to impose taxes on goods, 12 have all contributed to a vertical
imbalance in federal fiscal relatio ns, and provides the potential for f ederal policy
domination through the us e of tied grants under s 9 6.13 Additionally, the e xpansive
reach of federal executive power has provided a further foothold for the growth in
federal power,14 although in more recent decisions the Court has reconsidered this
expansive trendat least so as to give the federal Parliament control over the federal
However, these efforts to map the dynamics of the federal system largely have been
directed to legislative, executive and fiscal federalism. Judicial federalism’,16 on the other
4 Commonwealth v Tasmania (1983) 158 CLR 1 (Tasmanian Dam Case); Murphyores Incorporated
Pty Ltd v Commonwealth (1976) 136 CLR 1.
5 Actors and Announcers Equity Association v Fontana Films Pty Ltd (1982) 150 CLR 169; Work
Choices (2006) 229 CLR 1.
6 Koowarta v Bjelke-Petersen (1982) 153 CLR 168.
7 Fairfax v Federal Commissioner of Taxation (1965) 114 CLR 1; Northern Suburbs General
Cemetery Reserve Trust v Commonwealth (1993) 176 CLR 555; Roy Morgan Research Pty Ltd v
Federal Commissioner of Taxation (2011) 244 CLR 97.
8 See Anne Twomey, ‘Pushing the Boundaries of Executive Power Pape, the Prerogative
and Nationhood Powers’ (2010) 34 Melbourne University Law Review 313.
9 See the collection of essays in Paul Kildea, Andrew Lynch and George Williams,
Tomorrow’s Federation: Reforming Australian Government (Federation Press, 2012).
10 Northern Suburbs General Cemetery Reserve Trust v Commonwealth (1993) 176 CLR 555.
11 South Australia v Commonwealth (1942) 65 CLR 373 (First Uniform Tax Case); Victoria v
Commonwealth (1957) 99 CLR 575 (Second Uniform Tax Case).
12 Ha v New South Wales (2007) 189 CLR 46 5.
13 Anne Twomey, ‘The Future of Australian Federalism Following the Money’ (2009) 24
Australasian Parliamentary Review 11; Alan Fenna, ‘Commonwealth Fiscal Powers and
Australian Federalism’ (2008) 31 University of New South Wales Law Journal 509.
14 Pape v Federal Commissioner of T axation (2009) 238 CLR 1; Cheryl Saunders, The Sources and
Scope of Commonwealth Power to Spend Case Note; Pape v Federal Commissioner of
Taxation’ (2009) 20 Public Law Review 256; Twomey, above n 13; Andrew McLeod, ‘The
Executive and Financial Powers of the Commonwealth: Pape v Commissioner of Taxation
(2010) 32 Sydney Law Review 123.
15 Williams v Commonwealth (2012) 248 CLR 156; Williams v Commonwealth (2014) 88 ALJR 701.
16 An expression that I have adopted from Gavan Griffith and Geoffrey Kennett, 'Judicial
Federalism' in Brian Opeskin and Fiona Wheeler (eds), The Australian Federal Judicial System
(Melbourne University Press, 2000) 37.
2014 The Centralisation of Judicial Power 359
hand, has not been the s ubject of sustained con sideration. There is excellent work that
has demonstrated the increased sign ificance of Ch III and Commonwealth judicial
power.17 However, contribut ions on the federal dynamics of Ch III are relatively rare.18
Stephen McLeish SC has provided a valuable entry into this field by exp loring the
increased ‘convergence of constitutional principles a pplicable to State and fed eral
polities … and a convergence of co mmon law and constitutio nal principles’. 19 Other
recent contributions have started to populate this field. In an insightful article, Brendan
Lim has sought to reclaim the Kable princ iple as a ‘doctrine of federalism’,20 and
Gabrielle Appleby has argued that t he harmonising effect of Kable ‘has the potential t o
undermine the States’ capacity for experimentation and diversity in the law and order
This article seeks to extend the territory further, first, by showing that Ch III
principles have, on the whole, exhibited centr alising characteristics and exerted
centralising effects, and, secondly, by offering explanations for this centralisation.
Expressed in broad and unrefined terms, the central argument of this article is that
there has been increased centralisation of judicial power within Australia. This
argument, however, is packed with imprecision and, as a first step, it is important to
refine the parameters of the project. Specifically, it is important to identify, first, the
markers of a federal system and, secondly, the competing conceptions of the federal and
the national that under lie Australian federalism. This section will identify these federal
dimensions, providing a framework and a language to commence mapping the federal
judicial system.
As Nicholas Aroney has explained in illuminat ing detail, ‘conceptualising
federalism is contentious and diff icult’.22 ‘The basic idea’, Aroney writes, ‘is that of a
political system in which governmental power is divided between two territ orially
defined levels of government, guaranteed by a written constitution and arbitrated by
17 See, for example, the collection of essays in Brian R Opeskin and Fiona Wheeler (eds), The
Australian Federal Judicial System (Melbourne University Press, 2000); Fiona Wheeler, ‘The
Rise and Rise of Judicial Power under Chapter III of the Constitution: A Decade in
Overview’ (2001) 20 Australian Bar Review 283.
18 Recent collections on Australian federalism consider the judicial system sparingly: see,
Kildea, Lynch and Williams, above n 9; Gabrielle Appleby, Nicholas Aroney and Thomas
John (eds), The Future of Australian Federalism: Comparative and Interdisciplinary Perspectives
(Cambridge University Press, 2012). During the inquiry by the Senate Select Committee on
the Reform of the Australian Federation, the Attorney-General for Western Australia
highlighted the centralisa tion of judicial power, but the ma tter was not explored by the
Committee nor made the subject of a specific recommendation: see Senate Select
Committee on the Reform of the Australian Federation, above n 3, 14 [1.49].
19 Stephen McLeish SC, ‘The Nationalisation of the State Court System’ (2013) 24 Public Law
Review 252, 252.
20 Brendan Lim, ‘Attributes and Attr ibution of State Courts Federalism and the K able
Principle’ (2012) 40 Federal Law Review 31, 32.
21 Gabrielle Appleby, ‘State Law and Order Regimes and the High Court: A Study in
Federalism and Rights Protection’ (2014) Monash University Law Review (forthcoming).
22 Nicholas Aroney, The Constitution of a F ederal Commonwealth: The Making and Meaning of the
Australian Constitution (Cambridge University Pr ess, 2009) 17.

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