Methods of Constitutional Change: High Court decisions

1. Methods of Constitutional Change: High Court decisions By: Julia Pedulla

2. About the High Court • The High Court of Australia was established in 1901 by section 71 of the Constitution (Chapter Three) but it wasn’t until 1903 that it had it’s first sitting • The High Court is Australia’s superior court and has the final say in the interpretation of ordinary law • The High Court is also a constitutional court (following the US model) • The High Court’s judgements are final, they cannot be appealed to any other court • Most of the High Court’s decisions concern appeals against decisions of Supreme Courts of the states and territories, of the Federal Court of Australia and of the Family Court of Australia • The Court must be persuaded that there are significant legal/justice issues involved in a case for it to agree to hear an appeal

3. Authority of the High Court • The High Court’s authority can be divided into its original and appellate jurisdiction • Original jurisdiction: the disputes that a court hears on their first presentation • High Court has original jurisdiction over constitutional disputes and matters covered in s75 of Constitution • Appellate jurisdiction: the authority of a higher court to hear appeals from a lower court • The Court’s appellate jurisdiction can cover any area of Australian law

4. Landmark Cases on the Federal Balance Tasmanian Dams Case (1983) • Saw the Cth oppose the decision to dam the Franklin River and attempt to protect the area • Cth relied on the fact that it has signed an international treaty protecting world heritage sites, of which the area was listed • The Cth successfully used s51 (xxix) – external affairs power – as the High Court confirmed Cth had the power to bind the States on matters where international treaties had been signed • This meant the Cth could pass valid laws on any matter of international concern arising from a bona fide treaty • This High Court decision replaced the narrow view that suggested external affairs power restricted central policy to ‘traditional’ external matters such as trade or defence (activist) • Therefore extending the Commonwealth’s power

5. Landmark Cases on the Federal Balance Engineers Case (1920) • Was a legalist decision • Involved a dispute between Amalgamated Society of Engineers and an engineering/saw-milling factory owned by WA Gov • The Cth sought to legislate for the union because it believed under s51(xxxv) (conciliation and arbitration for prevention and settlement of industrial disputes extending beyond limits of any one State) it had power to make laws for state based businesses when the dispute extended beyond that state • The High Court found this valid which gave broader interpretation to Cth industrial powers, ruling that Cth law could apply to WA state agencies, and by application, to the other states as well • This expanded the Commonwealth’s power

6. Implied Rights • High court judgements have found wider protection of rights in the Constitution • They are political or civil freedoms that underlie the actual words of the Constitution but are not stated directly • Example: In the judgement ‘Australian Capital Television’ in 1992 (when Australian Capital Television Ltd challenged the Cth’s Political Broadcasts and Political Disclosures Act 1991 which placed a ban on advertising on radio and television during federal election campaigns) the High Court found that the Cth statute was unconstitutional, arguing that s24 clearly establishes representative parliamentary government (by definition this requires that elections were based on free and informed decisions by voters) The Court saw this implied a constitutional guarantee of freedom of speech as necessary for any free and informed vote

7. Phases of the High Court • Phase 1: Originalist/Intentionalist Stage (1903-1920) • Court’s decisions mostly supported the states • The first Chief Justice, Sir Samuel Griffiths, saw the Constitution as a ‘federal contract’ • In the Railway Servants Case (1906) the High Court applied the principles of ‘implied prohibitions’ and ‘implied immunities’ • Under ‘implied prohibitions’ the High Court set narrow limits on Cth powers so they didn’t deduct from state authority • Not all judgements favoured the states: in Surplus Revenue Case (1908) the states lost their right (set out in s94) to the distribution of the surplus revenue of the Cth. The Cth had tried to avoid this requirement by putting unspent revenue in special accounts and the Court found this had not breached the Constitution. Ever since, the states have been dependent on Cth grants to finance their expenditure

8. Phases of the High Court • Phase 2: Literalism/‘covering the field’ (1920-1942) • The Engineers Case (1920) marked major change in the High Court’s interpretation of state/Cth powers • The Court’s interpretations were based on ‘the natural meaning’ of the words of the Constitution, not on the intention of its writers • Led by Justice Higgins and Isaacs, the High Court declared the Cth had wide authority to act under the constitutional ‘heads of power’ found in the concurrent powers in s51 • The Justices supported the authority of the Commonwealth Arbitration Commission to determine conditions of workers employed in commercial activities by WA Gov Railways • High Court decided that Cth law could effectively replace state law in any relevant area to a constitutional judgement

9. Phases of the High Court • Phase 3: Legalism/‘black letter of the law’ (1942-1970) • Under the influence of Chief Justice Owen Dixon, the High Court moved away from broad principles of constitutional interpretation to an approach of ‘legalism’ • Cases tended to be decided on the ‘black letter of the law’ and could favour either the states or Commonwealth • An example of a legalist case is State Banking (1947) This judgement gave a broad meaning to the guarantee of freedom of interstate “… trade, commerce and intercourse …” (s92 of Constitution) Court determined that this section prevented the Cth from passing legislation that directed the banking policy of the states • Other cases include Communist Party Abolition (1951) and the Second Uniform Tax Case (1957)

10. Phases of the High Court • Phase 4: Activism (1970-1996) • Under Chief Justice Barwick (1964-81) and Chief Justice Mason (1987-95) the High Court adopted a broader interpretation of Cth powers • Example: in the Payroll Tax Case (1971) the Court found that the Cth had the power to tax a state’s public service payroll • In the Concrete Pipes Case (1971) it took a broad view over of Cth power under s51(xx) to regulate corporations • In Koowarta (1982) and Tasmanian Dams (1983) the High Court allowed the extension of Cth action into areas of residual (state) power by finding Cth law valid under s51 (xxix) external affairs power • In Capital Television (1992) and Theophanous (1992) the Court found that the basis of the Constitution in representative government created ‘implied rights’ of individuals that could not be transgressed by Cth law

11. Phases of the High Court • Contemporary approaches (since 1996) • The appointment of Chief Justice Gleeson in 1998, and appointments of Justices Hayne, Callinan, and Heyden, gave Court more conservative tendency • Their decisions have been legalist rather than activist • In McGinty (1996), Levy (1997) and Lange (1997), the Court took a cautious approach to the extent of individual rights protected by the Constitution • ‘Implied rights’ were redefined as specific limits on Cth’s legislative authority • In Hindmarsh (1998), Cth actions in a land rights dispute were challenged on ground that Cth could only use 1967 referendum for the benefit of indigenous Australians. The Court took a legalist view of Cth power and rejected the challenge • The French Court generally takes ‘black letter of the law’ approach to judgements • The Court reinforces right to procedural fairness and resists ‘executive incursions’ into judicial independence