Hostname: page-component-745bb68f8f-b6zl4 Total loading time: 0 Render date: 2025-01-30T06:08:06.365Z Has data issue: false hasContentIssue false
  • English
  • Français

Mr Justice Evatt and the Constitution

Published online by Cambridge University Press:  24 January 2025

Leslie Zines
Leslie Zines*
Affiliation:
School of General Studies, Australian National University
Get access Rights & Permissions [Opens in a new window]

Extract

In a recent work dealing with Dr Evatt, the politician, he is described in the title as an “enigma”. Perhaps there is some enigmatic quality in Evatt, the High Court judge and constitutional lawyer. In the ten years he was on the High Court (1930-1940) a number of dominant themes can be detected in his judgments on constitutional law which at first sight seem to be not fully consistent with each other. In many cases they show a concern to prevent the undermining of State executive and legislative authority and a tendency to restrict Commonwealth power. In other cases, his judgments propound a rather broad interpretation of Commonwealth powers.

Type
Research Article
Information
Federal Law Review , Volume 3 , Issue 2 , June 1969 , pp. 153 - 186
Copyright
Copyright © 1969 The Australian National University

Access options

Get access to the full version of this content by using one of the access options below. (Log in options will check for institutional or personal access. Content may require purchase if you do not have access.)

References

page 153 note 1 Dalziel, , Evatt the Enigma (1967)Google Scholar.

2 (1920) 28 C.L.R. 129.

3 Attorney-General for New South Wales v. The Brewery Employees' Union (1908) 6 C.L.R. 469; The King and the Minister of State for the Commonwealth v. Barger (1908) 6 C.L.R. 41.

4 (1925) 36 C.L.R. 170. It was held that a member of the Air Force driving in the course of his duty was subject to State traffic regulations in the absence of a Commonwealth law to the contrary.

5 Ibid. 183.

6 (1926) 37 C.L.R. 466.

7 (1930) 43 C.L.R. 472.

8 Ibid. 483.

9 (1920) 28 C.L.R. 530.

10 Sawer, , Australian Federalism in the Courts (1968) 67Google Scholar.

11 Evatt, H. V., “Constitutional Interpretation in Australia” (1939) 3Google Scholar University of Toronto Law Journal 1, 22: “I have endeavoured to show, I hope with complete objectivity, that there is neither a tendency toward, nor yet away from, Commonwealth supremacy over the States. The Constitution itself stands.”

12 (1937) 56 C.L.R. 657.

13 (1920) 29 C.L.R. 1.

14 (1937) 56 C.L.R. 657, 686.

15 Ibid. 705.

16 Ibid. 685.

17 Ibid. 699.

18 Ibid. 708.

19 Ibid. 701-702.

20 (1932) 48 C.L.R. 128.

21 Ibid. 143.

22 (1937) 58 C.L.R. 618.

23 Ibid. 637.

24 Stock Motor Ploughs Ltd v. Forsyth (1932) 48 C.L.R. 128, 147.

25 West v. The Commissioner of Taxation (N.S.W.) (1937) 56 C.L.R. 657, 690.

26 Victoria v. The Commonwealth (1937) 58 C.L.R. 618, 638.

27 (1962) 107 C.L.R. 46.

28 Ibid. 56-57.

29 Ibid. 71.

30 Ibid. 63.

31 Ibid. 69.

32 Ibid. 54.

33 By the Financial Emergency (State Legislation) Act 1932 (Cth), the Commonwealth purported to nullify certain State taxes on mortgages and other capital levies. The Act was passed in anticipation of the governor's assent being given to a New South Wales Bill imposing a tax on mortgages at the rate of ten per cent of the amount secured. The bill never received the Royal Assent as the New South Wales Premier, Mr Lang, was dismissed from office. The long title of the Commonwealth Act referred to the Commonwealth's powers in respect of taxation, insurance, banking and corporations. Sir Robert Garran in The Case for Union admitted that reliance on the taxation power was “a forlorn hope”. In The King and his Dominion Governors (2nd ed. 1967) 161-162, Dr Evatt wrote: “Had the validity of the Act been tested, the case would have raised the interesting question whether a law purporting to exempt Banks, Insurance Companies, Trading Corporations, and private individuals from State laws imposing taxation is, in truth and in fact, a law with respect to Banking, Insurance, or Taxation.“

34 “80. Trial on indictment of any offence against any law of the Commonwealth shall be by jury, and every such trial shall be held in the State where the offence was committed, and if the offence was not committed within any State the trial shall be held at such place or places as the Parliament prescribes.”

35 (1938) 59 C.L.R. 556.

36 (1928) 41 C.L.R. 128. It was held that if the Commonwealth law provided for the trial to be otherwise than by indictment s. 80 was inapplicable.

37 (1938) 59 C.L.R. 556, 581-582.

38 Section 51 (ii) confers power on the Commonwealth to make laws with respect to “Taxation; but so as not to discriminate between States or parts of States.” Section 99 provides: “The Commonwealth shall not, by any law or regulation of trade, commerce, or revenue, give preference to one State or any part thereof over another State or any part thereof.”

39 (1908) 6 C.L.R. 41.

40 (1935) 54 C.L.R. 657.

41 Ibid. 686.

42 Commissioner of Taxation v. Clyne (1957) 100 C.L.R. 246, 266.

43 (1935) 54 C.L.R. 657, 675.

44 (1957) 100 C.L.R. 246.

45 (1939) 61 C.L.R. 735.

46 Ibid. 758.

47 Ibid. cf. Else-Mitchell, (ed.) Essays on the Australian Constitution (2nd ed. 1961) 32Google Scholar.

48 (1939) 61 C.L.R. 735, 764.

49 Ibid. 793-794.

50 Ibid. 766.

51 (1940) 63 C.L.R. 338.

52 Ibid. 343.

53 Ibid. 350.

54 Sawer, , Australian Federal Politics and Law 1929-1949 (1963) 12lGoogle Scholar.

55 (1938) 61 C.L.R. 735, 790.

56 Evatt, , “The Judiciary and Administrative Law in Australia” (1937) 15Google Scholar Canadian Bar Review 247.

57 Victorian Stevedoring and General Contracting Company Pty Ltd v. Dignan (1931) 46 C.L.R. 73, 115.

58 Ibid.

59 Evatt, , “The Judiciary and Administrative Law in Australia” (1937) 15Google Scholar Canadian Bar Review 247, 256.

60 (1938) 59 C.L.R. 556.

61 Ibid. 580.

62 (1957) 95 C.L.R. 529.

63 (1931) 46 C.L.R. 116; (1937) 15 Canadian Bar Review 247, 255.

64 (1938) 59 C.L.R. 587.

65 Ibid. 589.

66 (1956) 94 C.L.R. 254, 299-317.

67 The decision in Lowenstein's case was applied and its correctness assumed in Sachter v. The Attorney-General (1954) 94 C.L.R. 86. Its standing in view of the Boilermakers' case is unclear.

68 (1932) 48 C.L.R. 487, 518.

69 Ibid.

70 (1931) 44 C.L.R. 492.

71 Ibid. 527.

72 Ibid. 528.

73 (1935) 54 C.L.R. 262.

74 Ibid. 283. They also relied to a large extent on Privy Council decisions in relation to the British North America Act 1867 (U.K.).

75 (1936) 55 C.L.R. 608, 677.

76 See Airlines of New South Wales Pty Ltd v. New South Wales and the Commissioner for Motor Transport (1965) 38 A.L.J.R. 388.

77 (1936) 55 C.L.R. 608.

78 Jolley v. Mainka (1933) 49 C.L.R. 242.

79 (1936) 55 C.L.R. 608, 687.

80 Jolley v. Mainka (1933) 49 C.L.R. 242; Ffrost v. Stevenson (1937) 58 C.L.R. 528.

81 (1937) 58 C.L.R. 528.

82 Ibid. 579.

83 (1960) 106 C.L.R. 186.

84 Ibid. 197.

85 M'Culloch v. Maryland (1819) 4 Wheat. 316, 407.

86 Deputy Federal Commissioner of Taxation (N.S. W.) v. W. R. Moran Pty Ltd (1939) 61 C.L.R. 735.

87 Ibid. 794.

88 [1939] A.C. 117, 130.

89 The King and the Minister of State for the Commonwealth v. Barger (1908) 6 C.L.R. 41.

90 (1931) 44 C.L.R. 492, 527.

91 (1937) 56 C.L.R. 390, 418.

92 (1939) 61 C.L.R. 735.

93 Ibid. 794.

94 (1937) 57 C.L.R. 327.

95 (1933) 50 C.L.R. 30.

96 (1937) 57 C.L.R. 327, 353.

97 Ibid. 366.

98 (1949) 80 C.L.R. 432, 495-499.

99 Ibid. 499. This dissenting opinion was quoted with approval by the Privy Council in Hughes and Vale Pty Ltd v. New South Wales (No.1) (1954) 93 C.L.R. 1, 23.

page 179 note 1 (1952) 87 C.L.R. 177.

2 Stenhouse v. Coleman (1944) 69 C.L.R. 457, 471. In Dawson v. The Commonwealth (1946) 73 C.L.R. 157 the Court upheld under the defence power the validity of National Security regulations which required that a person should obtain the consent of the Treasurer before purchasing land. It was provided that the Treasurer might, in his absolute discretion, grant the consent either unconditionally or subject to such conditions as he thought fit or refuse to grant the consent. Latham C.J., Dixon and McTiernan JJ. were prepared to read down the absolute discretion to mean discretion within the scope of the defence power. However, it was argued that, if the Treasurer were to adopt measures to conceal the grounds upon which his consent is withheld, the Court might never know whether he has exercised his discretion properly and within constitutional purposes. Dixon J. answered this objection rather curiously. He said: The answer is that that is a complaint against the inadequacy of judicial process to uphold the law. It does not go to the intrinsic validity of the supposed acts of the Treasurer or his delegate. No doubt it is an argument against the constitutional validity of all Federal regulation which takes the form of prohibiting an act unless the consent is obtained of an administrator in whom is confided a discretion. But it is now much too late to adopt that rigid test. It is hard to see why the argument mentioned in that case was an argument against the constitutional validity of all federal regulations which take the form of prohibiting an act unless consent is obtained. A prohibition of imports subject to an administrative discretion, for example, is probably valid under s. 51 (i) because that power is not a purposive power and permission to import may be refused or granted on any grounds at all, such as considerations involving the protection of manufacturing, safety, morality or political expediency. The constitutional problem arises when the power can only be exercised for a particular purpose as is the case with the defence power. In the case of a purposive power, the availability of judicial remedies surely cannot be irrelevant. They seemed to be regarded as essential in the Capital Issues case. Sir Owen Dixon has not adopted similar reasoning in any other case and it is submitted that Dawson's case is best explained on the basis that the war-time defence power carried over into 1946 and that by virtue of the war-time defence power, a law may “be made to operate upon the opinion of a designated person, and that opinion may supply the only link that between the defence power and the legal effect of the opinion…” (Communist Party Case (1951) 83 C.L.R. 1, 258 per Fullagar J.).

3 Wilcox Mofflin Limited v. The State of New South Wales (1951-1952) 85 C.L.R. 488.

4 (1931) 44 C.L.R. 492.

5 (1939) 61 C.L.R. 735.

6 (1926) 39 C.L.R. 95.

7 (1933) 48 C.L.R. 487.

8 Ibid. 512.

9 West v. The Commissioner of Taxation (New South Wales) (1936-1937) 56 C.L.R. 657, 690.

10 Ibid.

11 (1908) 6 C.L.R. 41.

12 Menzies, J. apparently does not feel so inhibited on this question. In Fairfax v. The Federal Commissioner of Taxation (1965) 114Google Scholar C.L.R., 17-18, he said: For example, a special prohibitive tax upon income derived from the sale of heroin or from the growing or treatment of poppies for the production of heroin may not be a law with respect to taxation but rather a law made for the suppression of the trade in that drug by imposing penalties described as taxes for participation in it. This is the only statement I can find other than that of Evatt's in West's case which suggests that there may be quantitative limits on the taxation powers of the Commonwealth or the States. What is difficult to understand about this statement of Menzies J. is that he denies that the economic consequences or the motive behind the enactment of the law would be relevant to determine whether it was a law with respect to taxation. But how could the Court determine whether the tax was “prohibitive” unless it looked at economic consequences ?

13 Zines, “Dixon's Theory of Federalism” 1 Federal Law Review 221.

14 (1937) 56 C.L.R. 657, 706.

15 Ibid. 706-707.

16 (1940) 14 Australian Law Journal 194.

17 1 Federa Law Review 221.

18 The principles formulated by Dixon C.J. place some limits on the power of the Commonwealth to make laws governing the States, but deny any power to a State to control the Conlmonwealth even in the absence of Commonwealth legislation to the contrary.

19 Per Dixon, C.J. in Wragg v. New South Wales (1953) 88Google Scholar C.L.R. 353, 386.

20 Sawer, , Australian Federal Politics and Law 1929-1949 (1963) 222Google Scholar.