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Form and Substance: ‘Discrimination’ in Modern Constitutional Law

Published online by Cambridge University Press:  24 January 2025

Leslie Zines
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Extract

The concept of discrimination has been assuming a greater role in various aspects of constitutional interpretation. It has been prominent for many decades in the area of implied federal restrictions on Commonwealth power to bind the States, which received some revitalisation in the Queensland Electricity Commission v Commonwealth. It has, more recently, become the central core of the operation of s 92 of the Constitution (Cole v Whitfield). It has been given new life and prominence in the application of s 117 of the Constitution in Street v Queensland Bar Association. Four judges in Philip Morris Ltd v Commissioner of Business Franchises (Dawson, Toohey, Gaudron and McHugh JJ) suggested that there were something to be said for the view - earlier supported by Fullagar and Murphy JJ - that the test for an excise duty should be whether a tax discriminated against goods manufactured in the State in which the tax is levied. This, however, must await a complete judicial review of the operation of s 90.

Type
Research Article
Information
Federal Law Review , Volume 21 , Issue 1 , March 1992 , pp. 136 - 149
Copyright
Copyright © 1992 The Australian National University

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Footnotes

The extended notes which follow are based on separate talks which were given by Professor Leslie Zines and Geoffrey Lindell, Reader in Law, both of the Australian National University. The talks were given to the Government Law Interest Group at the Australasian Law Teacher's Association meeting held in Canberra in September 1990.

References

1 The analysis in this section appears in Zines, L, The High Court and the Constitution (3rd ed 1992), 372-5Google Scholar.

2 (1985) 159 CLR 192.

3 (1988) 165 CLR 360.

4 (1989) 168 CLR 461.

5 (1989) 167 CLR 399.

6 (1990) 169 CLR 436.

7 Supran 4.

8 (1935) 54 CLR 657.

9 lbid 615.

10 (1958) 100 CLR 246.

11 Hambly, D and Goldring, JG, Australian I.Awyers and Social Change (1976) 93-4Google Scholar.

12 (1939) 61 CLR 735, 764.

13 (1947) 74 CI.R 421.

14 The Commonwealth v Tasmania (1983) 158 CLR 1.

15 Ibid 154-5.

16 Ibid 126-7.

17 (1983) 6 UNSWU 234, 236.

18 (1981) 146 CLR,s9,614-S. See also 603 per Gibbs CJ, 652-3 per Wilson J.

19 Ibid 511.

20 Ibid 603.

21 (1989) 168 CI..R 461.

22 Cf Rose, D J, “Discrimination, Unifonnity and Preference” in L Zines, Comnumlaries on the Australian Corutillllion (1977) 203Google Scholar.

23 (1989) 168 CLR 461.

24 Ibid 485.

25 (1988) 165 CLR 360.

26 Ibid 398.

27 Supra n 23,489.

28 (1989) 63 AIJR 715

29 (1973) 128 CLR 482.

30 Supra n 23, 486-7 and also the passage quoted by the Orief Justice from the judgment of Stephen J at 488.

31 Ibid 493-4.

32 lbid 1495.

33 Ibid 523.

34 lbid 488.

35 (1904) 2 CLR 29.

36 Despite what is suggested in the headnote of the repon of the case in 62 AUR 715, 716. The Justices who either overruled the case, or may have overruled the case, were Deane and Gaudron JJ, cf Brennan and Toohey JJ. Dawson J was not prepared to reopen the correctness of the case if it was “confined to the decision and the essential reasoning Which led to it” (supra n 23, 549).

37 Supra n 23, 491-2.

38 Supreme Court of New Hampshire v Piper (1985) 470 US 274,284; 84 LEd 2d 205,213.

39 Supra n 23,513 and see generally at 512-4.

40 Ibid 513.

41 Supra text at n 22 and Rose, D J, “Discrimination and Preference” in G Brennan (ed), ConstitWlional Reform and Fiscal Federalism (1987)Google Scholar (Centre for Research on Federal Financial Relations, ANU Occasional Paper No 42, 1987) at 61-81.

42 TIN Commonwealth v Bank of New SoUlh Wales (1949) 79 CLR 497, 639.

43 Phillips, P D, “Trade, Commerce and Intercourse” in R Else-Mitchell (ed), Es.rays on the Australian Con.rtilMlion (1st ed 1952), 241-242Google Scholar.

44 Supra n 23, 554 where reference is made to Detmold, M, The Australian Commonwealth (1985)Google Scholar, 77. Reference to the same principle is repeated ibid 559-60.

45 Queensland Electricity Commission v TIN Commonwealth (1985) 159 Cl.R 192,247.

46 Supra n 23, 521-2.

47 Griswold v Connecticut (1965) 381 US 479. 483; 14 LEd 2d 510,514.

48 Query whether Howard meant to suggest that the words quoted in the text recognise the existence of a uniformity requirement in Australian Federal Constitutional Law (3rd ed 1985), 18. 37-8. Early textbooks on the Australian Constitution discussed the question whether legislatioo by the Commonwealth for purely local or State purposes would be intra vires and also the power of the Commonwealth to make local laws applicable to part only of its territory, and not applying generally throughout the whole Commonwealth. The discussion was prompted by certain cases decided by the Privy Council on the Canadian Constitutioo which appeared to suggest that the Dominion Parliament did not have the power to pass only local laws when exercising the general residual power of legislation under s 91 of the Canadian Constitution. Harrison Moore questioned whether the Commonwealth Parliament could, for example, pass an Insolvency Act for the State of Victoria, or a Divorce Act for New South Wales, or an Act establishing old-age pensions in South Australia, and not elsewhere. He concluded that legislation by the Commonwealth Parliament for purely local or State purposes would “not be intra vires” except in the case of the exclusive powers of the Commonwealth, but that Commonwealth legislation could in general be directed to a particular State or States if it appears to be part of a scheme for effecting an object of common interest: see Harrison Moore, W, The ConstiJution of The Commonwealth of Australia (2nd ed, 1910), 283-6Google Scholar. The correctness of that view was rejected by Kerr apparently on the grounds that in the Canadian Constitution exclusive legislative powers are granted to the Provincial Legislatures in matters of a local or private nature (under s 92 (16)), and also because the existence of express prohibitions on discrimination in the Australian Constitution attracted the operation of the principle expressum. facit cessare taciturn (“when there is express mention of certain things, then anything not mentioned is excluded”): The Law of the Australian ConstiJution (1925), 70-1. The same issue was discussed in Quick, J and Garran, R, The Annotated Constitution of the Australian Commonwealth (1901) 512-5Google Scholar, who also adverted to the unsuccessful attempt made by Inglis Clark to delete the words “peace, order, and good government of the Commonwealth” from the opening part of s 51. The present writer supports the view expressed by Kerr. For the modern position in Canada and also a modem treatment of some of the Privy Council cases referred to by Harrison Moore see Hogg, P, ConstiJutional Law of Canada (2nd ed, 1985), 305Google Scholar n 100 and chapter 17 especially at 375-83 including n 53,379.

49 Union Steamship Co of Australia Pty lJd v King (1988) 166 CLR 1. See also Polyulchovich v The Commonwealth (1991) 172 CLR 501, 529, 605-6, 635-6, 695 and 714 where McHugh J said: “The words 'peace, order, and good gov,emment' are a recognition of the fact that, for the purposes of constitutiooal theory, 'the purpose and design of every law is to promote the welfare of the community': Moore, Harrison, The Co11Stitution of the Commonwealth of Australia (2nd ed 1910), 274-5Google Scholar, cited in Reg v Foster per Windeyer J ((1959) 103 CLR 256), at p.308.”

50 Union Steamship Co of Australia Pty Ltd v King (1988) 166 CLR 1, 10.

51 Amalgamated Society of Engineers v The Adelaide Steamship Co Ltd (The Engineers' case) (1920) 28 CLR 129, 142.

52 (1992) 66 AUR 529 (per Mason CJ, Brennan, Dawsoo and McHugh D; Deane, Toohey and Gaudron JJ dissenting.)

53 lbid 537.