Will the High Court ‘WAKIM’ Chapter II of the Constitution?

Publication Date01 September 2003
Date01 September 2003
AuthorGraeme Hill
Graeme Hill*
As is well known, the High Court held in Re Wakim; Ex parte McNally1 that federal
courts can only exercise the judicial power of the Commonwealth, and cannot exercise
State judicial power. In this article I ask whether the Court would ever take a similar
approach to Chapter II of the Constitution, and hold that the Commonwealth executive
can only exercise the executive power of the Commonwealth, and not State executive
power. If it did, it would probably follow that the executive power of the
Commonwealth could only be exercised by the Commonwealth executive, and not by
a State executive.2 Obviously, these twin conclusions would have major implications
for existing Commonwealth–State cooperative legislative schemes.3
I should stress immediately that I do not think that this is the preferable view.
However, for reasons that I explain in Part 2 below, there is an undercurrent in recent
decisions that could be taken to suggest that the Commonwealth executive
government is limited to performing functions within the scope of Commonwealth
legislative power, and cannot be given additional functions.4 The question posed in
this article, therefore, is not fanciful or hypothetical. The courts may be particularly
concerned to confine the performance of State functions by the Commonwealth
* BA LLB (Hons) (ANU), LLM (Colum). Constitutional Litigation, Australian Government
Solicitor. This article expands on a paper given at the Public Law Weekend on 1 November
2002. The views expressed here are my own. Thanks are due to the referee, and to Daniel
Stewart for his most insightful comments on Part 4(B).
1 (1999) 198 CLR 511 ('Wakim').
2 There could be other, less direct, consequences. For example, the reasons for implying a
constitutional separation of Commonwealth and State executive power might favour a
greater separation between Commonwealth legislative and executive power, such as a
constitutional (rather than a merely political) limit on the ability of Parliament to interfere
with the exercise of executive power: see Geoffrey Lindell, 'Parliamentary Inquiries and
Government Witnesses' (1995) 20 Melbourne University Law Review 383, 401–2 (discussing
whether the investigative powers of parliamentary committees can override executive
3 Where the Commonwealth and State legislate cooperatively both to confer functions on a
single body. A 'State function' is function conferred by State law.
4 See below, Part 2(A) and (B).
446 Federal Law Review Volume 31
executive when the function is being performed by a Commonwealth Minister or other
senior official,5 or when the function is coercive in nature.6
Part 3 below then canvasses the arguments that might be made against permitting
the States to confer functions on the Commonwealth executive that the
Commonwealth could not confer itself. The major arguments would seem to be that
the conferral of these State functions would be contrary to Commonwealth immunities
from State law,7 or would undermine the federal division of executive power.8 I
endeavour to show that these arguments need not be accepted. If the High Court did
accept those arguments, however, that would raise further issues, such as whether
Commonwealth officers can perform State functions in a personal capacity.9
Having so far discussed the conferral of State functions on the Commonwealth,
Part 4 below considers the converse situation: the conferral of Commonwealth
functions on a State executive. The major arguments against permitting the conferral of
Commonwealth executive power on State officers seem to be that it would be contrary
to the constitutionally mandated system of responsible government,10 or contrary to
the system of judicial review guaranteed by s 75(v) of the Constitution.11 Again, I
attempt to refute those arguments. If those arguments were accepted, however, it
would be necessary to determine when the Commonwealth had purported to confer
Commonwealth executive power. I suggest that cases on whether a decision by a State
officer or private body is made 'under an enactment' for the purposes of the
Administrative Decisions (Judicial Review) Act 1977 (Cth) ('the AD(JR) Act') would
provide a useful analogy for these purposes.12
Underlying these specific arguments is a continuing debate about the nature of
Australian federation. In my view, Wakim depends on a contested and contestable view
of Australian federation (so-called 'co-ordinate' federalism) which emphasises the
separation between the different levels of government in a federation.13 Obviously,
adopting a co-ordinate view of federation would support the conclusion that the
Commonwealth executive can only perform functions within Commonwealth
legislative power, whereas another conception of federation (which might be called
'cooperative' or 'concurrent' federalism) would be more sympathetic to the argument
that the Commonwealth executive may perform State functions that go beyond the
scope of Commonwealth power. I have argued elsewhere that there is no reason to
prefer co-ordinate over cooperative (or concurrent) federalism.14
5 See below, Part 2(C)(i).
6 See below, Part 2(C)(ii).
7 See below, Part 3(A)(i).
8 See below, Part 3(A)(ii).
9 See below, Part 3(B)(ii). Another issue is whether the Commonwealth executive could
perform State functions otherwise outside power if those functions are 'incidental' or
'conducive' to the performance of Commonwealth functions (see below, Part 3(B)(i)).
10 See below, Part 4(A)(i).
11 See below, Part 4(A)(ii).
12 See below, Part 4(B).
13 Graeme Hill, 'Revisiting Wakim and Hughes: The Distinct Demands of Federalism' (2002)
13 Public Law Review 205, 215–17.
14 Ibid 217–26.
2003 Will the High Court 'Wakim' Chapter II of the Constitution? 447
Unfortunately, as Selway J observes, assumptions about the nature of Australian
federation are rarely articulated in either court submissions or in judgments.15 Far
from rendering this article pointless, that observation if anything increases the
importance of dissecting the various specific arguments that might be deployed in
favour of applying Wakim-style reasoning to Commonwealth executive power. This
article attempts to establish that, while it is possible that the High Court may 'Wakim'
Chapter II of the Constitution, that step is not required by text or precedent, the
constitutional tools deployed in Wakim itself. In doing so, I would hope to encourage
the High Court explicitly to address the different conceptions of federation if the issue
were to arise for decision.16
(A) R v Hughes : Commonwealth DPP prosecuting State offences
The hypothesis that the High Court may 'Wakim' Chapter II of the Constitution might
seem at first to be contrary to the result in R v Hughes.17 The Court held there that the
Commonwealth Director of Public Prosecutions ('the Commonwealth DPP') could
indeed prosecute Mr Hughes for breaches of the Corporations Law of Western Australia.
However, this result is entirely consistent with my hypothesis, particularly in the light
of the reasons the Court gave for that conclusion.
(i) State offences must be within Commonwealth power
The DPP had argued that its power to prosecute State offences derived from the
Corporations Law of the relevant State,18 and that the Commonwealth provisions19 were
merely facultative. Six members of the Court, however, held that the Commonwealth
provisions had a substantive operation in that case, because they imposed a duty on
the Commonwealth DPP. In their view, this substantive operation required that there
be a connection between the State function that was the subject of the duty and a head
of Commonwealth legislative power.20 Kirby J's separate judgment also concluded that
the Commonwealth DPP could not prosecute State offences unless the offences were
15 Justice Bradley Selway, 'Constitutional Assumptions and the Meaning of Commonwealth
Executive Power' (2003) 31 Federal Law Review 505. However, Kirby J has stated a preference
for cooperative federalism, and given reasons for this preference (Wakim (1999) 198 CLR
511, 600–1 [189]–[191]; R v Hughes (2000) 202 CLR 535, 566–8 [67]–[73]).
16 That at least would improve the chances of predicting how federalism implications might
affect future cases. It is unlikely, however, that court submissions could alter a judge's view
on the proper conception of federation (see the text accompanying nn 247—249 below).
17 (2000) 202 CLR 535 ('Hughes'). For a more complete analysis of Hughes, see, eg, Graeme Hill,
'R v Hughes and the Future of Co-operative Legislative Schemes' (2000) 24 Melbourne
University Law Review 478.
18 In Hughes, ss 29 and 31 of the Corporations (Western Australia) Act 1990 (WA) ('Corporations
(WA) Act').
19 In Hughes, s 47 of the Corporations Act 1989 (Cth) ('Corporations Act') and reg 3(1)(d) of the
Corporations (Commonwealth Authorities and Officers) Regulations 1990 (Cth).
20 Hughes (2000) 202 CLR 535, 553–4 [32]–[34] (Gleeson CJ, Gaudron, McHugh, Gummow,
Hayne and Callinan JJ).

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