The Interpretation of Legal Terms Used in the Definition of Commonwealth Powers

Date01 June 2007
Published date01 June 2007
Subject MatterArticle
Michael Stokes
Many of the terms the Constitution uses to define Commonwealth legislative powers
are legal terms or at least terms well-known to the law with legally defined meanings
in 1900. The ordinary meaning of some of these terms is dependent on, and derived
from, their legal meaning. Therefore, it is reasonable to assume that their constitutional
meaning is consistent with their legal meaning. This poses a problem: what is the legal
meaning of a legal term? One answer may be that the legal terms are shorthand for the
bundle of legal rights and duties and practices associated with that term. On this view,
for example, copyright is shorthand for the legal rules and practices which make up
the law of copyright.
This definition cannot be accepted for constitutional purposes. If it were, so that
legal terms used to define the subject matter of grants of power meant the bundle of
rights, duties and practices associated with those terms as they existed in 1900 or at
any other time, the Commonwealth's power to change the law on those topics would
be very limited. For example, copyrights, patents and trademarks were terms with an
established legal meaning in 1900. If the constitutional meaning of those terms were
strictly limited to their being a shorthand for the bundle of practices, rights and
liabilities associated with these topics in 1900, the Commonwealth's power over these
matters would not have enabled it to legislate for new types of intellectual property
such as circuit layouts and plant breeders' rights.1 It may not have permitted the
Commonwealth to make major changes to existing forms of intellectual property such
as copyright, by providing new rights, such as moral rights, or new defences, such as a
fair use defence. Higgins J recognised as early as 1908 that, if the terms in which grants
of power were expressed were confined to their accepted legal usage in 1900, the
Parliament could introduce no innovations or reforms but would be confined in its
law-making powers to exactly those matters dealt with by existing law. He said:
[The plaintiffs] say that, though the Federal Parliament has power to legislate about
'trade marks,' a 'workers' trade mark' was not a 'trade mark' within the accepted
definition in 1900, the date of the Constitution, and that therefore the Parliament has no
power to make any law as to 'workers' trade marks.'
LLB (Hons) (Tas); MPhil (Oxon); Senior Lecturer, Faculty of Law, University of Tasmania.
1 The High Court accepted the power of the Commonwealth to legislate for the first of these
new types of intellectual property in Nintendo Co Ltd v Centronics Systems Pty Ltd (1994) 181
CLR 134 ('Nintendo Case') and upheld its power to do so with respect to the second in Grain
Pool of Western Australia v Commonwealth (2000) 202 CLR 479 ('Grain Pool').
240 Federal Law Review Volume 35
This doctrine … , if it is to be accepted, cannot be confined to the subject of trade marks. It
means that the Federal Parliament cannot give validity to any kinds of patents, or to any
kinds of copyrights, which were not recognized in 1900. Copyright in designs is a recent
and useful development in the law of copyright. If it had not been accepted before 1900, it
could not — according to the plaintiffs — be now adopted by the Federal Parliament.
Nor, if the developments of industry should render a further extension of copyright
expedient, is it possible for the Federal Parliament to meet the want … The argument
means also that the Parliament cannot make the slightest alteration in the meaning of
bills of exchange or of promissory notes … Again, the Parliament has power to make
laws as to 'marriage.' But, according to the plaintiffs, if marriage with a deceased wife's
sister had not been validated before Federation, the Federal Parliament could not validate
it. For the word 'marriage' did not, strictly speaking, include such a union …2
Higgins J concluded that the definition of trade mark current in 1900 gave the
central type but not the circumference of the power.3 Similar reasoning has been
applied to other powers such as the bankruptcy power to enable the Commonwealth
to reform the bankruptcy laws which existed in 1900 so as to relieve debtors from
imprisonment for failure to pay debts,4 and to enact divorce laws providing for orders
extending to property acquired after the marriage ended although such orders were
unknown in 1900.5
Although there were good reasons for extending the meaning of terms such as
bankruptcy, trade mark and divorce beyond the legal definitions of those terms current
in 1900, once it is decided to do so it is not clear how the content of those terms is to be
limited. The judges in the relevant cases had little to say on the issue, holding that the
1900 legal definition defined the 'central type' of the power but not its 'circumference',6
and that it was more likely to assist in 'establishing the minimum content of the power
than its outside limits'.7 This presents the courts with a dilemma because, unless we
can find the outer limits of powers defined in legal terms, the Parliament will, by
extending the scope of the terms through innovative legislation, have the power to
redefine the constitutional scope of the terms and hence of its powers. If Parliament is
able to do this, it will be able to legislate itself into power.8
That such a power would accrue to the Parliament is implicit in the judgment of
Higgins J in the Union Label Case,9 where he said:
Power to make laws as to any class of rights involves a power to alter those rights, to
limit those rights, to extend those rights and to extend the class who may enjoy those
rights. In the same clause of sec 51, power is given to make laws with respect to
'copyrights' … ; with respect to 'patents' … ; and with respect to 'trademarks' … The
2 A-G (NSW) v Brewery Employés Union of New South Wales (1908) 6 CLR 469, 600–2 ('Union
Label Case').
3 Ibid 610.
4 Storey v Lane (1981) 147 CLR 549.
5 Lansell v Lansell (1964) 110 CLR 353, 362–3 (Kitto J), 366–7 (Taylor J), 369 (Menzies J), 370
(Windeyer J) ('Lansell').
6 Union Label Case (1908) 6 CLR 469, 610 (Higgins J).
7 Lansell (1964) 110 CLR 353, 363 (Kitto J).
8 That the stream, legislation, cannot rise above the source, constitutional power, is one of
the fundamental doctrines of Australian constitutional law: see Australian Communist Party
v Commonwealth (1951) 83 CLR 1.

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