Comparative Constitutional Law

Comparative Constitutional Law Class 13 October 4, 2006 Australian Constitutional Interpretation I

Frederick McCubbin: The Pioneer (1904)

Grace Cossington Smith: The Bridge in Curve (1926)

Emily Kngwarreye, Untitled (1996)

Ken Done

WRAP-UP

High Court: First Sitting (1903)

2 possible interpretative traditions on which High Court could draw • British statutory interpretation • U.S. constitutional interpretation • What was different about these? • Which did Griffith Court pick?

Sir Samuel Walker Griffith • First Chief Justice of the High Court (1903-1919) • How did the Griffith Court approach constitutional interpretation?

Justice O’Connor • Served on High Court 1903-1912 • Former Senator • Favored Federation • Involved in Constitutional convention

Sir Edmund Barton • First Prime Minister of Australia (1901-1903) • Protectionist • Work defusing first international cricket riot in 1879 (he was umpiring) led to start of his political career • Leading federalist in NSW at time of constitutional conventions

Griffith Court • Adopts doctrines of intergovermental immunities and reserved state powers based on U.S. precedents.

Intergovernmental Immunities • With the famous declaration that "the power to tax involves the power to destroy," McCulloch v. Maryland (1819), 17 U.S. (4 Wheat.) 316, 431, 4 L.Ed. 579, 607, Chief Justice John Marshall announced the doctrine of federal immunity from state taxation. • Although both sovereigns could impose taxes, the court held that a state does not have authority to tax an instrument employed by the federal government in the execution of its power. Id. at 432, 4 L.Ed. at 608.

Section 51: Enumerated Powers • 51.The Parliament shall, subject to this Constitution, have power to make laws for the peace, order, and good government of the Commonwealth with respect to: - (enumerates 39 powers)

Section 52 • 52. The Parliament shall, subject to this Constitution, have exclusive power to make laws for the peace, order, and good government of the Commonwealth with respect to • (i.) The seat of government of the Commonwealth, and all places acquired by the Commonwealth for public purposes: • (ii.) Matters relating to any department of the public service the control of which is by this Constitution transferred to the Executive Government or the Commonwealth: • (iii.) Other matters declared by this Constitution to be within the exclusive power of the Parliament.

Section 107 • 107. Every power of the Parliament of a Colony which has become or becomes a State, shall, unless it is by this Constitution exclusively vested in the Parliament of the Commonwealth or withdrawn from the Parliament of the State, continue as at the establishment of the Commonwealth, or as at the admission or establishment of the State, as the case may be.

Section 109 • 109. When a law of a State is inconsistent with a law of the Commonwealth, the latter shall prevail, and the former shall, to the extent of the inconsistency, be invalid.

Change in High Court personnel • 1906: Justices Isaacs and Higgins appointed to the Court • 1912: O’Connor dies • 1913: Duffy appointed, Powers appointed, appointed, Piddington appointed (now 7 justices) • 1913 Rich replaces Piddington • 1919: Griffiths retires as CJ; Knox replaces him • 1920: Barton dies, Starke appointed • All except Powers hear Engineers case (6 justices)

Justice Higgins • Served as justice on the High Court 1906-1929

Justice Isaac Isaacs • Served on the High Court 1906-1930 • Difficult, uncollegial • Radical • Later appointed Governor-General • Opposed to Zionism

Engineers’ Case (1920) • Most famous High Court case • What approach to constitutional interpretation does the majority hold should be applied (positivist? Normative? Living tree? Originalist?) • Effect of Engineers’? • Has Australia adopted anything like Canadian “Pith and substance” test?

LEGALISM • Cannot prevent the abuse of constitutional powers, e.g. First Uniform Tax case (1942) (p. 138) • Another example of a broad power: external affairs power See Tasmanian Dam (1983) (p. 140 n. 215)

The Queen v. Pearson; ex parte Sipka (1983) 152 CLR 254 • Is there a constitutional right to vote in Australia? • Describe the methods of constitutional intepretation used in this case (especially use of history and context).

The Queen v. Pearson; ex parte Sipka (1983) 152 CLR 254 • S. 41 "No adult person who has or acquires a right to vote at elections for the more numerous House of the Parliament of a State shall, while the right continues, be prevented by any law of the Commonwealth from voting at elections for either House of the Parliament of the Commonwealth."

The Queen v. Pearson; ex parte Sipka (1983) 152 CLR 254 • 30. Until the Parliament otherwise provides, the qualification of electors of members of the House of Representatives shall be in each State that which is prescribed by the law of the State as the qualification of electors of the more numerous House of Parliament of the State; but in the choosing of members each elector shall vote only once.

Legislative History • What change in approach to the use of legislative history was adopted in the case of Cole v. Whitfield (1988)? (case on s. 92)

Section 92 • 92. On the imposition of uniform duties of customs, trade, commerce, and intercourse among the States, whether by means of internal carriage or ocean navigation, shall be absolutely free.

Narrow reading of rights provisions • E.g. S. 80 • S. 116 (Kruger v. Commonwealth IStolen Generation case) [1997] HCA 27

STRUCTURAL PRINCIPLES • “Silent operation of constitutional principles”, e.g. federalism, separation of powers, representative democracy, responsible government, nationhood, rule of law • Led to implied freedom of political communication in 1992 (ACT, Theophanous) • Roots in Lionel Murphy’s thinking (1986) • Dispute over whether implicit in particular provisions or underlying principle (former chosen in Lange (1997))

IMPLIED RIGHTS • McGinty case (1996) rejected claim that onstitution guarantees principle of one vote, one claim. • Theophanous dissenters now in majority. Gummow doubts ACT/Theophanous correctly decided, invokes parliamentary supremacy • Toohey, J. dissents on living tree tjepru

PRECEDENT • To what extent is High Court willing to reverse itself? • See, e.g., Engineers’ and Cole v. Whitfield

PRECEDENT • Practice rule: counsel must ask for leave to challenge prior High Court decision.

DEFERENCE TO OTHER BRANCHES OF GOVERNMENT • Does the High Court • 1. defer to constitutional interpretations adopted by other branches? • 2. apply general presumption of constitutionality to acts of other branches?

POLICY CONSIDERATIONS • To what extent do these influence constitutional interpretation in Australia? (in theory, in reality)

USE OF COMPARATIVE & INT’L LAW • 1900-1920 American and British, some Canadian • 1920-1980 reduced use of comparative law • 1980 increasing use of it, especially British, U.S., South African, Canadian, New Zealand, Indian cases • Kirby has suggested High Court should interpret ambiguities in constitution by determining which construction best comports with international law

CULTURAL FACTORS INFLUENCING LEGALIST METHOD • Reverence for British legal tradition, esp. in Sydney, Melbourne. Result: prefer rules to principles • Relatively homogenous federation • Widespread belief that need for national regulation (leading to broad interpretation of Commonwealth powers) • Fierce partisan political debates between Labor and Liberal parties: led to need for Court to ensure its own legitimacy • Others

High Court chief justices • Griffith 1903-1919 endorse U.S. approach • Knox 1919-1930 legalistic, formalistic British approach • Isaacs 1930-1931 ditto • Duffy 1931-1935 • Latham 1935-1952 • Dixon 1952-1964 some development intergov. immunities • Barwick 1964-1981 • Gibbs 1981-1987 • Mason 1987-1995 shift to more purposive approach, imply rights • Brennan 1995-1998 • Gleeson 1998 to present some conflict, but most judges follow Engineers’ (not Kirby)

Comparative Constitutional Law