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The Role of a Constitutional Court in a Federation a Comparison of the Australian and the United States Experience

Published online by Cambridge University Press:  24 January 2025

Anthony Mason
Anthony Mason*
Affiliation:
Justice of the High Court of Australia
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Abstract

The Australian National University, the Sir Robert Menzies Memorial Trust and the University of Virginia Law School have established an annual Menzies Lecture Series. The Lectures are held in honour of Sir Robert Menzies and mark his contribution to the law and public life. The Lectures are given in alternate years at the Law Schools of the University of Virginia and the Australian National University. The Lectures will be published in the “Federal Law Review”. The first Menzies Lecturer was The Honourable Sir Anthony Mason of the High Court of Australia who visited the University of Virginia in October 1985. The following article is based on Sir Anthony’s lecture.

Type
Research Article
Information
Federal Law Review , Volume 16 , Issue 1 , March 1986 , pp. 1 - 28
Copyright
Copyright © 1986 The Australian National University

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References

1 Section 51(xxxv) of the Constitution.

2 Privy Council (Limitation of Appeals) Act 1968 (Cth).

3 Privy Council (Appeals from the High Court) Act 1975 (Cth).

4 The first step was the enactment by all six Australian states of the Australia (Request) Act 1985 requesting and concurring in the exercise by the Federal Parliament, purportedly pursuant to s 5l(xxxviii) of the Constitution, of the power to pass legislation terminating residual con.stitutional links. The second step was the enactment by the Federal Parliament of the Australia Act 1986, containing the provisions requested, and the Australia (Request and Consent) Act 1985 which requested the enactment by the United Kingdom of an Act in the terms set out in the Schedule. The Australia Act 1986 (UK) was brought into operation by a proclamation signed by the Queen on 2 March 1986. The constitutional links which were thereby severed are noted in (1986) 60 ALJ, 254-255.

5 Section 77 of the Constitution.

6 Address on being sworn in as Chief Justice reported in (1952) 85 CLR xi, at xiii-xiv.

7 McWhinney, , Supreme Court and Judicial Law-Making: Constitutional Review (1968) 91-94Google Scholar.

8 Sections 76(i) and 74 of the Constitution and see Sir Owen Dixon, “Marshall and the Australian Constitution” in Jesting Pilate, at 174-175.

9 (1803) 5 US (1 Cranch) 137.

10 Rusden v Weeks (1861) 2 Legge 1406, at 1414-1416, 1419-1420; Baxter v Commissioners of Taxation (1907) 4 CLR 1087, at 1125, and see Kingston v Gedd (1901) 27 VLR 417, Sir Owen, Dixon, “Marshall and the Australian Constitution” (1955) 29 ALJ 420, at 425Google Scholar.

11 The Queen v Burah (1878) 3 AppCas 889, at 904.

12 See Baker v Carr (1962) 369 US 186, at 217; cf Gerhardy v Brown (1985) 59 ALJR 311, at 341-341; 57 ALR 472, at 523-524.

13 Compare Hodel v Virginia Surface Mining & Reclamation Association Inc. (1981) 452 US 264, at 277; with Australian Communist Party v The Commonwealth (1951) 83 CLR 1, at 224, 243-244, 263-265.

14 Permewan Wright Consolidated Pty Ltd v Trewhitt (1979) 145 CLR 1, at 37 (per Mason J.).

15 Fairfax v Commissioner of Taxation (1965) 114 CLR 1, esp. at 7; Herald & Weekly Ltd v The Commonwealth (1966) 115 CLR 418; Murphyores Incorporated Pty Ltd v The Commonwealth (1976) 136 CLR l; Actors and Announcers Equity Association of Australia v Fontana Films Pty Ltd (1982) 150 CLR 169, at 191-195, 201-203, 216-217.

16 Herald & Weekly Times Ltd v The Commonwealth (1966) 115 CLR 418, at 436-437, 442; Attorney-General (Vic) v The Commonwealth (1962) 107 CLR 529, at 543; Attorney-General (W.A.) v Australian National Airlines Commission (1976) 138 CLR 492, at 523.

17 Attorney-General (W.A.) v Australian National Airlines (1976) 138 CLR 492, at 523.

18 Burton v Honan (1952) 86 CLR 169; Herald & Weekly Times, esp. at 436-437.

19 (1975) 135 CLR 1.

20 Supra n 12.

21 Supra n 19.

22 Duncan v Louisiana (1968) 391 US 145.

23 R v Archdall and Roskruge; ex parte Carrigan and Brown (1928) 41 CLR 128; R v Federal court of Bankruptcy; ex parte Lowenstein (1938) 59 CLR 556; Sachter v A-G (Cth) (1954) 94 CLR 86, at 88; Zarb v Kennedy (1968) 121 CLR 283; Li Chia Hsing v Rankin (1978) 141 CLR 182; Kingswell v The Queen (1985) 62 ALR 161.

24 R v Federal Court of Bankruptcy; ex parte Lowenstein (1937) 57 CLR 765.

25 See Conv. Debs., Melb., at 350-354 (discussion of Mr Higgins); Conv. Debs., Melb., at 1894-1895.

26 Kingswell, Note 23 supra, at 169; Brown v The Queen (1986) 60 ALJR 257, at 260; 64 ALR 161, at 166, 168.

27 See the judgments of Deane J in Kingswell and Brown.

28 Lemon v Kurtzman (1971) 403 US 602, at 612-613.

29 See Wallace v Jaffree, 86 LEd 2d 29, at 66 (Rehnquist J dissenting) (“The three-part test represents a determined effort to craft a workable rule from an historically faulty doctrine; but the rule can only be as sound as the doctrine it attempts to service.” Ibid, at 78).

30 A-G (Vic) ex rel Black v The Commonwealth (1980) 146 CLR 559.

31 In his sharp dissent in Wallace v Jaffee, then Associate Justice, now Chief Justice, Rehnquist chronicled the Supreme Court's confusing establishment clause precedents:

... A State may lend to parochial school school children geography textbooks that contain maps of the United States, but the State may not lend maps of the United States for use in geography class. A State may lend textbooks on American colonial history, but it may not lend a film on George Washington, or a film projector to show it in history class. A State may lend classroom workbooks, but may not lend workbooks in which the parochial school children write, thus rendering them nonreusable. A State may pay for bus transportation to religious schools but may not pay for bus transportation from the parochial school to the public zoo or natural history museum for a field trip. A State may pay for diagnostic services conducted in the parochial school but therapeutic services must be given in a different building; speech and hearing 'services' conducted by the State inside the sectarian school are forbidden, but the State may conduct speech and hearing diagnostic testing inside the sectarian school. Exceptional parochial school students may receive counselling, but it must take place outside of the parochial school, such as in a trailer parked down the street. A State may give cash to a parochial school to pay for the administration of State-written tests and state-ordered reporting services, but it may not provide funds for teacher-prepared tests on secular subjects. . ..

86 LEd 2d 29, 78-79 (citations omitted). For a critical analysis of the Supreme Court's establishment clause precedent, see Van Alstyne, “Trends in the Supreme Court: Mr Jefferson's Crumbling Wall - A Comment on Lynch v Donnelly” 1984 Duke LJ 770. For other discussions of the First Amendment religion clause precedent, see Greenawalt, “Religion as a Concept in Constitutional Law” 72 Calif LRev 753 (1984); Johnson, “Concepts and Compromise in First Amendment Religious Doctrine” 72 Calif LRev 877 (1984).

32 Henry v Boehm (1973) 128 CLR 482.

33 D Rose “Discrimination, Uniformity and Preference” in L Zines (ed.) Commentaries on the Australian Constitution 219-229.

34 Note 32, supra at 488.

35 “Judicial Qualities of a different Kind” in Law Institute Journal (Victoria), July 1986, vol 60, No 7, 654.

36 Section 90 of the Constitution.

37 Section 92 of the Constitution.

38 Section 51(xxxv) of the Constitution.

39 Section 5l(xxi) of the Constitution.

40 Section 51(xxii) of the Constitution.

41 Section 5l(xxix) of the Constitution.

42 US Const art l, s 8, cl 3.

43 Note 36, supra.

44 Section 96 of the Constitution.

45 The effect of the Financial Agreement is to require state borrowings to be approved by the Australian Loan Council, a body over which Commonwealth representatives exercise considerable control. See the Financial Agreements Act 1928 (Cth), as amended.

46 Hematite Petroleum Pty Ltd v Victoria (1983) 151 CLR 599; Gosford Meats Pty Ltd v New South Wales (1985) 59 ALJR221; 57 ALR 417; cf Dickenson's Arcade Pty Ltd v Tasmania (1974) 130 CLR 177.

47 South Australia v The Commonwealth (“the First Uniform Tax Case”) (1942) 65 CLR 373; Victoria v The Commonwealth (“the Second Uniform Tax Case”) (1957) 99 CLR 575.

48 South Australia v The Commonwealth, ibid; Attorney-General For Victoria ex rel Black v The Commonwealth (1981) 146 CLR 559.

49 Friendly, “Federalism: A Forward” 86 Yale LJ 1019, at 1025 (1977). As early as 1937 the Supreme Court permitted a conditioning programme in Steward Machine Co v Davis, 307 US 548 (1937) (upholding a federal government tax remission scheme under the Social Security Act of 1937).

50 “Aspects of Australian Federalism” in Owen Dixon, Jesting Pilate, 122.

51 Commonwealth v Tasmania (the Franklin Dam case) (1983) 46 ALR 625, at 496, 509; 57 ALJR 450, at 710, 737.

51 Heart of Atlanta Motel v United States 379 US 241, at 258-259 (1964).

53 United States v Wrightwood Dairy Co 315 US 110, at 119 (1942).

54 National Labor Relations Board v Jones & Laughlin Steel Corp. 301 US I, at 41 (1937).

55 Wickard v Filburn 317 US Ill, at 127-128 (1942).

56 Hospital Provident Fund Pty Ltd v Victoria (1953) 87 CLR I; North Eastern Dairy Co Ltd v Dairy Industry Authority of NSW (l975) 134 CLR 559; Australian Coarse Grains Pool Pty Ltd v Barley Marketing Board (1985) 59 ALJR 516; 59 ALR 641.

51 Grannall v Marrickville Margarine Pty Ltd (1955) 93 CLR 55; Beal v Marrickville Margarine Pty Ltd (1966) 114 CLR 283; but it has been acknowledged that the power might extend to production - Grannall, at 77-78; contrast Wragg v New South Wales (1953) 88 CLR 353, at 385-386. In O'Sullivan v Noarlunga Meat Ltd (1954) 92 CLR 565, at 598 regulations controlling production for export were upheld.

58 Attorney-General (WA) v Australian National Airlines Commission (1976) 138 CLR 492, at 523.

59 Houston, East and West Railway v United States 234 US 342, at 351 (1914).

60 Supra n 58.

61 Section 122 of the Constitution.

62 McCulloch v Maryland 17 US (4 Wheat) 316 (1819).

63 D'Emden v Pedder (1904) l CLR 91; Deakin v Webb (1904) l CLR 585, which was overruled by the Privy Council (Webb v Outtrim (1906) 4 CLR 356).

64 Federated Amalgamated Government Railway & Tramway Service Association v NSW Railway Traffic Employees' Association (the Railway Servants case) (1906) 4 CLR 488.

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

66 Sir Owen Dixon, “Aspects of Australian Federalism” in Jesting Pilate, pp. 116-117; L Zines, The High Court and The Constitution, 9-11.

67 Sir Owen Dixon, Note 66, supra, at 117.

68 Melbourne Corporation v The Commonwealth (the State Banking case) (1947) 74 CLR 31; Queensland Electricity Commission v The Commonwealth (1985) 59 ALJR 699; 61 ALR I.

69 Supra n 51.

70 Garcia v San Antonio Metropolitan Transit Authority 83 LEd 2d 1016 (1985).

71 Supra n 41.

72 R v Burgess; ex parte Henry (1936) 55 CLR 608.

73 252 us 416 (1920)

74 426 us 833 (1976).

75 Supra n 64, Queensland Electricity Commission v The Commonwealth (1985) 59 ALJR 699, at 708; 61 ALR I, at 17.

76 R v Commonwealth Court of Conciliation & Arbitration; ex parte Professional Engineers' Association (1959) 107 CLR 208.

77 R v Coldham; ex parte Australian Social Welfare Union (1983) 153 CLR 297.

78 ex parte Harper (1986) 60 ALJR 441; ALR.

79 Supra n 70 at 1058.

80 Supra n 70 at 1034.

81 William J Brennan, Jr, “The Constitution of the United States: Contemporary Ratification” Vol 43 Lawyers Guild Practitioner I.

82 Section 128 of the Constitution.

83 These were the Social Services Referendum, enacted by the Constitutional Alteration (Social Services) Act 1946 (Cth) and the Aboriginals Referendum, enacted by the Constitutional Alteration (Aboriginals) Act 1967 (Cth).

84 Supra n 81 at 4-8; Weems v United States 217 US 349, at 373 (1910).

85 Jumbunna Coal Mine, No Liability v Victoria Coal Miners' Association (1908) 6 CLR 309, at 367-368; ex parte Australian Social Welfare Union, Note 77, supra, at 314.

86 Australian National Airways Pty Ltd v The Commonwealth (1945) 71 CLR 29, at 81; The Queen v Public Vehicles Licensing Appeal Tribunal (Tas); ex parte Australian National Airways Pty Ltd (1964) 113 CLR 207, at 225-226. The statement of Sir Owen Dixon recalls the famous comment of Chief Justice Marshall in McCulloch v Maryland, supra n 62 at 406 (“we must never forget that it is a constitution we are expounding”) (emphasis original).

87 The Works of Alexander Hamilton 3:455 (H Lodge, ed, 1904).

88 Deakin v Webb (1904) l CLR 585, at 630; Sir John, Latham, “Interpretation of the Constitution” in R. Else-Mitchell (ed), Essays on the Australian Constitution (2nd ed, 1961), l, 5, 8Google Scholar. See the exposition by Windeyer J in Victoria v The Commonwealth (the Payroll Tax case) (1971) 122 CLR 353, at 394-395.

89 Sir Owen Dixon, “The Law and the Constitution” (1935) 51 Law Quarterly Review 590, at 597. See also Note 87, supra, and China Ocean Shipping Co v Soutli Australia (1979) 145 CLR 172, at 209-214 where Stephen J refuted the untenable view previously expressed by Murphy J in Bistricic v Rokov (1976) 135 CLR 552, at 556, reiterated in China Ocean Shipping, at 236, that the Constitution derived its legally binding force from the sovereignty of the Australian people.

90 Supra n 88.

91 A-G for the Commonwealth ex rel McKinlay v The Commonwealth, supra n 19 at 17, per Barwick CJ.

92 For an illuminating discussion of the matters referred to in this paragraph see OJ Lindell, “Why is Australia's Constitution Binding? - The Reasons in 1900 and Now, and the Effect of Independence”, published in this issue p 29. See also University of Wollongong v Metwally (1985) 59 ALJR 48, at 59; Kirmani v Captain Cook Cruises Pty Ltd (1985) 59 ALJR 265, at 302-303.

93 Sutherland J observed in United States v Curtiss-Wright Corp, 299 US 304, at 317 (1936), “When . . . the external sovereignty of Great Britain in respect of the colonies ceased, it immediately passed to the Union.” Thus, the individual American states were never independently sovereign. As Patterson J emphatically explained as early as 1795, “The truth is, that the states, individualJy, were not known nor recognized as sovereign, by foreign nations, nor are they now.” Penhallow v Roane, 3 US (3 Dall) 53, at 80 (1975).

94 Wacando v The Commonwealth (1981) 148 CLR 1, at 25-26; Acts Interpretation Act 1901 (Cth), s 15AB.

95 A-G (Cth) ex rel McKinlay v The Commonwealth Note 19, supra, at 17, 47; and see Municipal Council of Sydney v The Commonwealth (1904) 1 CLR 208, at 213-214; but cf Seamen's Union of Australia v Utah Development Co (1978) 144 CL 120, at 143-144.

96 R v Barger (1908) 1 CLR 41, at 68; King v Jones (1972) 128 CLR 221, at 229; Bonser v La Maccia (1969) 122 CLR 177.

97 A-G (NSW) v Brewery Employees' Union of NSW (1908) 6 CLR 469, at 508; R v Commonwealth Conciliation & Arbitration Commission; ex parte Professional Engineers' Association of Australia (1959) 107 CLR 208, at 267; Lansell v Lensell (1964) 110 CLR 353, at 366. This approach has been justified on some occasions by drawing a distinction, not acceptable to philosophers, between connotation and denotation - R v Federal Court of Australia; ex parte WA Football League (1979) 143 CLR 190, at 233-234.

98 R v Brislan; ex parte Williams (1935) 54 CLR 262.

99 ex parte Professional Engineers' Association, Note 76, supra, at 267.

100 L Zines, The High Court and the Constitution, 17; and see Jones v The Commonwealth (No 2) (1965) 112 CLR 206, at 237.

101 R v Burgess, Note 72, supra, at 671-672; Wragg v New South Wales (1953) 88 CLR 353, at 385-386.

102 Russell v Russell (1976) 134 CLR 495, at 511-512, 525-527. The argument was again rejected in R v Lambert; ex parte Plummer (1980) 147 CLR 447, at 462, 465, where Russell v Russell was affirmed.