The Centralisation of Judicial Power within the Australian Federal System
| Author | James Stellios |
| DOI | 10.22145/flr.42.2.6 |
| Published date | 01 June 2014 |
| Date | 01 June 2014 |
THE CENTRALISATION OF JUDICIAL POWER WITHIN THE
AUSTRALIAN FEDERAL SYSTEM
James Stellios*
ABSTRACT
This article considers the patterns 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, first, seeks to show that principles derived from Chapter
III of the Constitution have, on the whole, exhibited broadly similar centralising
characteristics and exerted centralising effects, and, secondly, offers explanations for
this centralisation.
IINTRODUCTION
The centralisation of power within the Australian federal system has been well
documented. The expansion of federal legislative power is well known. The High
Court has developed characterisation principles1 and other rules of interpretation2that
allow expansive readings of federal heads of legislative power.3The 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 articlewere presented at the ANU College of Law, the
Australian Association of Constitutional Law, Melbourne, and theAttorney-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:
DP140101218.
1 Murphyores Incorporated Pty Ltd v Commonwealth(1976) 136 CLR 1; New South Wales v
Commonwealth (2006) 229 CLR 1 (‘Work Choices’).
2Amalgamated Society of Engineers v Adelaide Steamship Co Ltd (1920) 28 CLR 129 (‘Engineers
Case’).
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 Review245; 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).
358Federal Law ReviewVolume 42
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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,4industrial relations5and
human rights.6The federal Parliament can use taxation as a regulatory tool,not just as
a means to fill the public purse.7Furthermore, the Commonwealth can, pursuant to s
96 of the Constitution, grant money to the States under wide reaching and controlling
conditions that require States to achieve federal policy agendas and, indeed, reduce
States to instruments for the achievement of federal policy priorities.8The control of
education and the health system are common examples identified when commentators
express concern about the federal imbalance.9
The High Court’s broad interpretations of the Commonwealth’s revenue raising
power,10the facilitatio n of a federal income tax monopoly,11and the narrowing (under
s 90) of statepower to impose taxes on goods,12have all contributed to a vertical
imbalance in federal fiscal relations, and provides the potential for federal policy
domination through the use of tied grants under s 96.13Additionally, the expansive
reach of federal executive power has provided a further foothold for the growthin
federal power,14although in more recent decisionsthe Court has reconsidered this
expansive trend — at least so as to give the federal Parliament control over the federal
executive.15
However, these efforts to map the dynamics of the federal system largely have been
directed to legislative, executiveand fiscalfederalism. ‘Judicialfederalism’,16on 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.
9See the collection of essays in Paul Kildea, Andrew Lynch and George Williams,
Tomorrow’s Federation: Reforming Australian Government (Federation Press, 2012).
10Northern Suburbs General Cemetery Reserve Trust v Commonwealth(1993) 176 CLR 555.
11South Australia v Commonwealth (1942) 65 CLR 373 (‘First Uniform Tax Case’); Victoria v
Commonwealth (1957) 99 CLR 575 (‘Second Uniform Tax Case’).
12Ha v New South Wales(2007) 189 CLR 46 5.
13Anne Twomey, ‘The Future of Australian Federalism — Following the Money’ (2009) 24
Australasian Parliamentary Review11; Alan Fenna, ‘Commonwealth Fiscal Powers and
Australian Federalism’ (2008) 31 University of New South Wales Law Journal509.
14Pape 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 Review256; 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.
15Williams v Commonwealth(2012) 248 CLR 156; Williams v Commonwealth(2014) 88 ALJR 701.
16An 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.
2014The Centralisation of Judicial Power359
_____________________________________________________________________________________
hand, has not been the subject of sustainedcon sideration. There isexcellent work that
has demonstrated the increased significance of Ch III and Commonwealth judicial
power.17However, contributions on the federaldynamicsof Ch III are relatively rare.18
Stephen McLeish SC has provided a valuable entry into this field by exploringthe
increased ‘convergence of constitutional principles applicable to State and federal
polities …and a convergence of common law and constitutional principles’.19Other
recent contributions havestartedto populate thisfield. In an insightful article, Brendan
Lim has sought to reclaimthe Kableprinciple as a ‘doctrine of federalism’,20and
Gabrielle Appleby has argued thatthe harmonising effect ofKable‘has the potential to
undermine the States’ capacity for experimentation and diversity in the law and order
sphere’.21
This article seeksto extend the territory further, first, byshowingthat Ch III
principles have, on the whole,exhibitedcentralisingcharacteristicsand exerted
centralising effects, and, secondly,byofferingexplanations for this centralisation.
IITHE MARKERS OFCENTRALISATION
Expressed in broadand unrefined terms, the central argument of this articleis that
there hasbeen increased centralisationof judicial power within Australia. This
argument, however, is packed with imprecision and, asa first step, it is important to
refine the parameters of the project.Specifically, it is importantto identify, first,the
markers of a federal system and, secondly,the competing conceptions of the federaland
the nationalthat underlie 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 illuminating detail, ‘conceptualising
federalism is contentious and difficult’.22‘The basic idea’, Aroney writes, ‘is that of a
political system in which governmental power is divided between two territorially
defined levels of government, guaranteed by a written constitution and arbitrated by
17See, for example, the collection of essays in Brian R Opeskin and Fiona Wheeler (eds),The
AustralianFederal 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 Review283.
18Recent 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 centralisation of judicial power, but the matter 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].
19Stephen McLeish SC, ‘The Nationalisation of the State Court System’ (2013) 24 Public Law
Review252, 252.
20Brendan Lim, ‘Attributes and Attribution of State Courts —Federalism and the Kable
Principle’ (2012) 40 Federal Law Review31, 32.
21Gabrielle Appleby, ‘State Law and Order Regimes and the High Court: A Study in
Federalism and Rights Protection’ (2014) Monash University Law Review (forthcoming).
22Nicholas Aroney, The Constitution of a Federal Commonwealth: The Making and Meaning of the
Australian Constitution(Cambridge University Pr ess, 2009) 17.
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