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Justice Windeyer on the Engineers‘ Case

Published online by Cambridge University Press:  24 January 2025

Jeffrey Goldsworthy
Jeffrey Goldsworthy*
Affiliation:
Faculty of Law, Monash University
*
Correspondence to <jeff.goldsworthy@law.monash.edu.au>.
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Extract

In their majority judgment in the Work Choices Case, five Justices of the High Court endorsed a well known obiter dictum of Windeyer J in Victoria v Commonwealth ('the Payroll Tax Case’). The dictum concerns the Engineers’ Case, which famously repudiated the doctrines of implied intergovernmental immunities and reserved state powers, previously held by the Griffith Court to be entailed by the federal principle implicit in the basic structure of the Constitution. The Court in Engineers declared that both doctrines, and the reasoning on which they were based, were erroneous. But Windeyer J disagreed with this. He said that he had never regarded the decision in Engineers ‘as the correction of antecedent errors or as the uprooting of heresy': it ‘does not to my mind mean that the original judges of the High Court were wrong in their understanding of what at the time of federation was believed to be the effect of the Constitution and in reading it accordingly.'

Type
Research Article
Information
Federal Law Review , Volume 37 , Issue 3 , September 2009 , pp. 363 - 374
Copyright
Copyright © 2009 The Australian National University

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References

1 New South Wales v Commonwealth (2006) 229 CLR 1, 119 (Gleeson CJ, Gummow, Hayne, Heydon and Crennan JJ) ('Work Choices’), citing Victoria v Commonwealth (1971) 122 CLR 353, 396–7 (Windeyer J) ('Payroll Tax Case’).

2 Amalgamated Society of Engineers v Adelaide Steamship Co Ltd (1920) 28 CLR 129 ('Engineers’).

3 Payroll Tax Case (1971) 122 CLR 353, 396.

4 Richard, Latham, The Law and the Commonwealth (1970) 564Google Scholar.

5 Ibid.

6 John, Goldring, ‘The Path to Engineers’ in Michael, Coper and George, Williams (eds), How Many Cheers for Engineers? (1997) 1, 39Google Scholar.

7 See, eg, Baxter v Commissioners of Taxation (NSW) (1907) 4 CLR 1087. This point is made in Stephen, Gageler, ‘Foundations of Australian Federalism and the Role of Judicial Review’ (1987) 17 Federal Law Review 162, 181–2Google Scholar; SirAnthony, Mason, ‘The High Court of Australia: A Personal Impression of its First 100 Years’ (2003) 27 Melbourne University Law Review 864, 873Google Scholar.

8 Geoffrey, Sawer, Australian Federal Politics and Law 1901–1929 (1956) 329Google Scholar.

9 Geoffrey, Sawer, Australian Federalism in the Courts (1967) 128Google Scholar.

10 Jeffrey, Goldsworthy, ‘Australia: Devotion to Legalism’ in Jeffrey, Goldsworthy (ed), Interpreting Constitutions, A Comparative Study (2006) 106, 121Google Scholar.

11 Brian, Galligan, The Politics of the High Court (1987) 102Google Scholar. See also Jeffrey, Goldsworthy, ‘Australia: Devotion to Legalism’ in Jeffrey, Goldsworthy (ed), Interpreting Constitutions: A Comparative Study (2006) 106, 120–1Google Scholar.

12 It is said to express ‘a more sophisticated view’ in Gageler, above n 7, 181.

13 I previously pointed this out in Jeffrey, Goldsworthy, ‘Originalism in Constitutional Interpretation’ (1997) 25 Federal Law Review 1, 16Google Scholar.

14 My views are expressed in Jeffrey Goldsworthy, ‘Australia: Devotion to Legalism', above n 10, 118–19.

15 Payroll Tax Case (1970) 122 CLR 353, 402 (approved in McGinty v Western Australia (1996) 186 CLR 140, 168–70 (Brennan CJ), 184 (Dawson J), 202 (Toohey J)).

16 Sir Victor Windeyer, ‘Some Aspects of Australian Constitutional Law’ (Speech delivered at the J A Weir Memorial Lecture, Edmonton, 13–14 March 1972), 38 (for the full quote and further discussion see the text to n 37 below).

17 Baxter v Commissioners of Taxation (NSW) (1907) 4 CLR 1087.

18 R v Commonwealth Conciliation and Arbitration Commission; Ex parte Association of Professional Engineers (1959) 107 CLR 208, 267; see also Bonser v La Macchia (1969) 122 CLR 177, 230.

19 One referee asked how this proposition is consistent with s 59 of the Constitution. The answer is that s 59 is still in the Constitution — it has not disappeared. That it is no longer used is beside the point.

20 Michael, Detmold, ‘Original Intentions and the Race Power’ (1997) 8 Public Law Review 244, 244–5, 250–1Google Scholar. For an earlier and somewhat different version of this argument see Michael, Detmold, ‘Australian Law: Federal Movement’ (1991) 13 Sydney Law Review 31Google Scholar.

21 The general idea that the founders intended the High Court to adopt a ‘progressive’ or ‘evolutionary’ interpretive methodology is refuted in Greg, Craven, ‘Heresy as Orthodoxy: Were the Founders Progressivists?’ (2003) 31 Federal Law Review 87Google Scholar.

22 Ronald, Dworkin, ‘Comment’ in Antonin, Scalia (ed), A Matter of Interpretation: Federal Courts and the Law (1997) 115, 122Google Scholar. Whether or not this coheres with his rejection of originalism is debatable: for an argument that Dworkin is really a kind of originalist, see Jeffrey, Goldsworthy, ‘Dworkin as an Originalist’ (2000) 17 Constitutional Commentary 49Google Scholar.

23 Laurence Tribe, ‘Comment’ in Scalia, above n 22, 73.

24 SirKenneth, Bailey, ‘The Working of the Constitution Since Federation’ in Garnet, Vere Portus (ed), Studies in the Australian Constitution (1933) 23, 44Google Scholar.

25 Leslie, Zines, The High Court and the Constitution (5th ed, 2008) 17Google Scholar.

26 Discussed in Jeffrey, Goldsworthy, ‘Implications in Language, Law and the Constitution’ in Geoffrey, Lindell (ed), Future Directions in Australian Constitutional Law (1994) 150, 168–70Google Scholar. See also Elisabeth, Peden, Good Faith in the Performance of Contracts (2003) 60–71Google Scholar.

27 Goldsworthy, ‘Implications in Language, Law and the Constitution', above n 26, 168; Peden, above n 26, 61–3.

28 Hamlyn v Wood [1891] 2 QB 488, 494 (Kay LJ), quoted with approval by Lord Atkinson, speaking for the Judicial Committee of the Privy Council in Douglas v Baynes [1908] AC 477, 482. See also Nelson v Walker (1910) 10 CLR 560, 586 (Isaacs J) and H K, Lucke, ‘Ad Hoc Implications in Written Contracts’ (1973) 5 Adelaide Law Review 32, 34Google Scholar.

29 Worrall v Commercial Banking Co of Sydney Ltd (1917) 24 CLR 28, 32.

30 Goldsworthy, ‘Implications in Language, Law and the Constitution', above n 26, 161; Peden, above n 26, 60–1.

31 The version found in contract law is called the ‘business efficacy’ test: see Joseph, Starke, Nicholas, Seddon and M P, Ellinghaus, Cheshire & Fifoot's Law of Contract (6th Australian ed, 1992) 212–13Google Scholar. As for statutes, see Slipper Island Resort Ltd v Minister of Works & Development [1981] 1 NZLR 136, 139.

32 Australian Capital Television Pty Ltd v Commonwealth (1992) 177 CLR 106, 135 (Mason CJ), cited with approval in McGinty v Western Australia (1996) 186 CLR 140, 168–9 (Brennan CJ), 231 (McHugh J); APLA Ltd v Legal Services Commissioner (NSW) (2005) 224 CLR 322, 409 (Gummow J), Carr v Western Australia (2007) 232 CLR 138, 145 (Gleeson CJ).

33 This proposition is denied by Ronald Dworkin, who maintains that the law is so rich in underlying principles that it never fails to provide an answer to a legal dispute: see Ronald Dworkin, Taking Rights Seriously (1977) and Ronald Dworkin, Law's Empire (1986). On his view, Windeyer J's dictum must surely be erroneous: in 1920, the implied constitutional doctrines that were repudiated in Engineers must have been either right or wrong as a matter of law, with no room for judicial choice.

34 Jeremy, Kirk, ‘Constitutional Interpretation and a Theory of Evolutionary Originalism’ (1999) 27 Federal Law Review 323, 332–3Google Scholar.

35 Gian, Boeddu and Richard, Haigh, ‘Terms of Convenience: Examining Constitutional Overrulings by the High Court’ (2003) 31 Federal Law Review 167, 170–1Google Scholar; Lange v Australian Broadcasting Corporation (1997) 189 CLR 520.

36 Engineers (1920) 28 CLR 129, 154.

37 Windeyer, above n 16, 36–7.

38 R v Commonwealth Conciliation and Arbitration Commission; Ex parte Association of Professional Engineers (1959) 107 CLR 208, 267; see also Bonser v La Macchia (1969) 122 CLR 177, 230.

39 Goldsworthy, ‘Implications in Language, Law and the Constitution', above n 26, 168–70.

40 Chief Justice James Spigelman denies that terms can be legitimately added to statutes, and disapproves of the expression ‘reading into’ because it suggests the opposite: see the lucid summary of views he has expressed in several cases, in his Statutory Interpretation and Human Rights (2008) chapter 3, 132–4.

41 Or is it possible that his carefully chosen words convey a more subtle message than is first apparent? He said: ‘I would prefer not to say “making implications”, because our avowed task is simply the revealing or uncovering of implications that are already there': Payroll Tax Case (1970) 122 CLR 353, 402, quoted at n 15 above. Could he have intended this to imply: although ‘I would prefer not to say’ that we make implications, we sometimes do; and although our ‘avowed’ task is simply to reveal already existing implications, that is not always our real task? I think not.

42 Payroll Tax Case (1970) 122 CLR 353, 396.

43 To use terminology emphasised in Lange v Australian Broadcasting Corporation (1997) 189 CLR 520 and subsequent cases: see below n 50.

44 See Jeffrey, Goldsworthy, ‘Interpreting the Constitution in its Second Century’ (2000) 24 Melbourne University Law Review 677, 690Google Scholar.

45 R v Big M Drug Mart Ltd [1985] 1 SCR 295, 335.

46 Windeyer, above n 16, 38.

47 See JusticeJ D, Heydon, ‘Theories of Constitutional Interpretation: A Taxonomy’ (2007, Winter) Bar News (NSW) 12, 25Google Scholar.

48 See above n 4.

49 Re Governor, Goulburn Correctional Centre; Ex parte Eastman (1999) 200 CLR 322, 355 [87]. For criticism of that thesis see Goldsworthy, ‘Interpreting the Constitution in its Second Century', above n 44.

50 Those cases include Re Wakim; Ex parte McNally (1999) 198 CLR 511 (Gleeson CJ and Hayne J); Singh v Commonwealth (2004) 222 CLR 322 (Gleeson CJ and Hayne J); XYZ v Commonwealth (2006) 227 CLR 532 (Heydon J); Roach v Electoral Commissioner (2007) 233 CLR 162 (Gleeson CJ, Hayne and Heydon JJ). For a more recent discussion of these issues, see Jeffrey, Goldsworthy, ‘Original Meanings and Contemporary Understandings in Constitutional Interpretation’ in H P, Lee and Peter, Gerangelos (eds), Constitutional Advancement in a Frozen Continent (2009)Google Scholar.

51 Leslie, Zines, ‘The High Court and the Constitution in 2006’ (2007) 30 University of New South Wales Law Journal 174, 179Google Scholar.

52 Zines, The High Court and the Constitution, above n 25, 124.