The history of Australian federalism is one of the steady accretion of power to the central institutions of government, in particular the Commonwealth Parliament. The continuing shift from the States to the Commonwealth of effective power to regulate so many aspects of Australia’s economic and social life has, in general, been accepted and encouraged by the justices of the High Court – at least since the critical Engineers’ decision.

This acceptance and encouragement has been most conspicuous on those occasions when the High Court has endorsed the Commonwealth’s adventurous exploration of its legislative powers; when, for example, the Court decided that the defence and taxation powers would allow the Commonwealth to assume an effective monopoly over income taxation, that the overseas trade and commerce power would allow the Commonwealth to discourage sand mining in Queensland, or that the external affairs power would allow the Commonwealth to proscribe acts of racial discrimination inside Australia.

It has rarely been doubted that the courts, especially the High Court, have jurisdiction over disputes as to the scope of Commonwealth powers. Although the Constitution does not state specifically that these disputes give rise to legal issues or that the courts have jurisdiction over these questions, s 74 of the Constitution, which prevents appeals to the Privy Council from the High Court on inter se questions, which include questions about the scope of Commonwealth powers, without the consent of the High Court, indicates that the High Court at least has jurisdiction over these disputes. However, the Constitution does not set out the basis on which the courts’ jurisdiction over these questions rests, nor does it state who has the standing to raise them. In this paper I wish to consider the theoretical basis of the courts’ jurisdiction over these questions and consider the impact which different justi:fications for that jurisdiction have on standing.

Section 90 of the Australian Constitution provides that:

Natural justice — Judicial review — Armed forces — Air force officer — Power to dismiss where appointment held at pleasure — Governor-General in Council — Air Force Regulations 1927 (Cth) regulations 72(1), 628(1)

Flight Lieutenant Coutts was an officer in the Royal Australian Air Force. In 1980 the Governor-General in Council terminated his appointment on medical grounds in accordance with Regulations 72(1) and 628(1) of the Air Force Regulations, 1927 (Cth). Regulation 72(1) reads:

Constitutional law — Commonwealth — Excise duties — Tax on production — Licence to slaughter animals — Fee based on number of animals slaughtered in period prior to licence period — Whether invalid as tax on goods produced or valid as tax on business generally — Whether governed by Dennis Hotels case — Constitution (Cth) s 90 — Meat Industry Act 1978 (NSW) s 11C — Meat Industry (Licensing) Regulations (1980) (NSW) cl 41.