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Law and Rights

Constitutional law

In a federal constitution like ours sovereignty is divided. The federal parliament can do some things. State parliaments can do other things. Who is to decide where the boundary lies? The constitution lays down the boundaries, but who is to interpret the constitution? The judges of the High Court.

This is a huge power for judges to have. Sometimes governments have been elected to pass a certain law, parliament has passed the law, and then the High Court has declared that the law does not exist. The parliament did not have the power to pass it. The Labor Party many times had laws dealing with monopolies and government enterprises struck down by the High Court. The Liberal Party, on coming into office for the first time in 1949, carried out its promise to ban the Communist Party. The court said it could not do it.
Boss judges

When the court rules on a common law matter, it can be overruled by parliament. When a court interprets an Act of parliament in a way parliament did not intend, parliament can change the law. But when the High Court strikes down a law as unconstitutional, only a change to the constitution will enable parliament to override the court.
Powers of the High Court

The Australian constitution is changed by parliament putting an amendment to the people at referendum. If a majority of people support the change and if a majority of the States support the change, then the constitution is altered. When this scheme was adopted at the 1897–8 convention, it seemed ultra-democratic. The direct involvement of the people was highly unusual. But it has proved very hard to change the constitution. Forty-two changes have been put to the people and only eight have been agreed to.
Changing the constitution

Six of these changes have been ‘housekeeping’ matters, changes which tidied up the constitution rather than really altering it. Two have increased the Commonwealth’s powers. In 1946 it gained the power over social security payments, student allowances and health services. In 1967 it gained power over Aboriginal affairs. Many proposals have been put to the people to increase the Commonwealth’s powers in other areas. They have all been defeated.

The founders of the constitution planned a small Commonwealth government. They listed the powers it should have, and left everything else to the States. And yet the Commonwealth’s powers have grown enormously. One of the chief reasons for this is the way the High Court has interpreted the constitution. Interpreting constitutions is a tricky business. Consider these five rules. The judges have followed one or more of these in different combinations.
Interpreting the constitution

1. Follow the words of the constitution exactly.
2. Consider what the document as a whole implies.
3. Do what the founders intended.
4. Apply the document to today’s circumstances.
5. Consider national needs and the people’s wishes.

Which rules would help in the expansion of Commonwealth power? Not rule 1: that is a very cautious approach. Rules 2 and 3 give more flexibility but since the founders wanted a small central government and strong States, you won’t get far with them. Rules 4 and 5 look more promising. You could argue that the constitution must not be treated as a dead document; as times change and needs alter, it has to be looked at differently.

The judges who have expanded the Commonwealth’s power have drawn a little on rules 4 and 5, but it is by laying great stress on rule 1 that they have transformed the constitution. How can this be? They have followed the founders’ words and produced a result the founders would not recognise!
Commonwealth power expands

The first judges had been founders of the constitution. The first chief justice was Samuel Griffith who had written the first draft of the document. They regarded rule 2 as important. It was a federal constitution which means that the Commonwealth and the States must be supreme in their spheres and not interfere with each other. So the court ruled that a State government could not make a post office worker pay a tax on his salary because the salary came from the Commonwealth. This judgement did not depend on the words of the constitution; there were no words which put this limit on the States’ powers. The judges applied this principle both ways. Workers in the State railways were not allowed to register with the Commonwealth Arbitration Court because then a Commonwealth body would be fixing the wages of State workers.

The court changed its approach in 1920, after the founders had left the court, with its ruling in the Engineers case. Engineers working for a government sawmill in Western Australia wanted to have their wages determined by the Commonwealth Arbitration Court. They seemed to have little chance of success. The union hired a 25–year-old barrister called Robert Menzies who had not been in the High Court before. During the case, he was interrupted by one of the judges who said his argument was rubbish. Menzies agreed with him, but said that if the court gave him time he would put a case which would convince them. He did convince them, made his name and, since his future was secure, got married.

The court accepted that when a power was given to the Commonwealth, the full meaning should be given to the words. So if the Commonwealth had power to settle interstate industrial disputes, it should be read as all such disputes, whether they involved State government workers or not. Read the words; don’t bother about the consequences. This was interpretation by rule 1, which was not good news for the States.

In the 1920s and 1930s there were State income taxes and a federal income tax. The constitution gave the power to tax to both levels of government. During World War II the Commonwealth government wanted to raise income tax levels, have one rate for the whole country, and control all the proceeds itself. It planned to force the States to stop taxing incomes. It would raise the level of Commonwealth tax, but give some of the proceeds back to the States on condition that they dropped their tax. A State could ignore this offer. It could keep up its own tax which would mean that its people would be paying as well the very high Commonwealth tax, none of the proceeds of which would go to the State. This was politically impossible. The High Court ruled in the Uniform Tax case (1942) that this scheme was constitutional even though it used Commonwealth powers to deny, in effect, a State power.
Taxation powers

Protestors against the damming of the Franklin River in Tasmania
Protestors against the damming of the Franklin River in Tasmania: they finally won their case when the High Court ruled that the Commonwealth had the power to override the States on the use of World Heritage areas.

Coo-ee Picture Library

The scheme depended on section 96 of the constitution, which allows the Commonwealth government to make grants to the States on such terms and conditions as it thinks fit. This was included in the document at the last minute and was intended to allow for minor adjustments in financial arrangements. It has been used by the Commonwealth to influence policy in areas which the constitution left to the States. The Commonwealth has no power over universities or schools, but by giving money to the States for these and putting conditions on the grant, it in effect obtains power over them. As the Commonwealth has become the affluent government, helped by the Uniform Tax case, it has been able to exercise this power more and more. The High Court has used rule 1 (follow the words exactly) to interpret section 96.
Grants to the States

The Tasmanian Dam case (1983) gave Commonwealth power a further boost. The High Court ruled that a heritage law passed by the Commonwealth parliament could stop a State building a dam in a World Heritage area because the Commonwealth government had signed a treaty on world heritage.
Power from treaties

When the constitution was drawn up treaties dealt with peace terms and trade. Now they deal with many matters which in Australia are the responsibilities of the States. By signing these treaties the Commonwealth can gain the right to interfere in State matters. The court, sticking to rule 1, would not divide external affairs into what were truly international and what were domestic. This verdict was supported by four judges and opposed by three. The three thought the court must also consider rule 2 (what the whole document implies). If the Commonwealth could claim every State power by signing a treaty, the federal principle was exploded.

You see what has happened. If you forget rule 2 on what the document implies and rule 3 on what the founders intended, rule 1 turns out not to be a cautious approach at all. It looks cautious, of course. That explains how even conservative judges have produced radical change.
Has the High Court acted properly?

Should this be told as a sorry story of the defeat of the States? Perhaps the majority of Australians don’t care for the balance of the constitution. They are happy that the Commonwealth can protect the environment in the States and influence schools (this book is a part of a federal program). The court has caught the public mood. It is an odd outcome since referendums to increase Commonwealth power have usually been defeated. The defenders of the High Court say that if the people were unhappy with what has happened they could change the constitution. The defenders of the States point out that only the Commonwealth parliament can propose a change to the constitution.

The States still possess some weapons they can use against the Commonwealth. State premiers can call on State loyalty and suspicion of Canberra. The major parties are themselves federal bodies. If the Commonwealth government becomes too domineering, the State party organisation can warn federal ministers and members to back off, threatening that they might not be chosen by the party to run at the next elections.

There are three levels of government in Australia: federal, State and local. The Commonwealth constitution, as interpreted by the judges, divides federal power from State power. Local government is not mentioned in the Commonwealth constitution. Cities, shires and councils are created by State parliaments which decide what duties they will perform and have to approve the local laws (by-laws) they make. If a State government considers a local government body is inefficient or corrupt, it can suspend it and appoint an administrator to run its affairs. Theoretically a State parliament could decide not to have local government at all.
Local government

Local government bodies have not performed as many functions in Australia as elsewhere. They have not run the police or the schools. For a long time their chief business was the making and maintaining of local roads. Now they are more involved in welfare and community services, helped by Commonwealth money. There is a strong local government association which wants local government to be recognised in the constitution. In 1988 a proposal was put to the people which would have obliged State parliaments to establish and continue a system of local government. This was overwhelmingly defeated. This does not show that Australians don’t want local government. The proposal was one of four and the opponents of the others made things simple by campaigning for a No vote on all.

This is an indication of how hard it is to get the people to change the constitution. It is much easier for judges to change it, though they say they are only interpreting it.

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