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requiring that state cases involving the construction of the Commonwealth Constitution be appealed directly to the High Court. According to all indications the High Court has won, although it is still claimed that the issue remains an undetermined matter in Australian constitutional law. According to Sir A. B. Keith,
“It is far from easy to predict the future of the doctrine of implied prohibition, for if the three senior judges (Griffith, Barton, and O'Connor) of the High Court are fully convinced of the principle which they have adopted from the first as the basis of the consideration of the Constitution, the two junior judges (Isaacs and Higgins) are evidently, if in different degrees, quite unwilling to admit its validity, and they have declared in open court that they do not consider themselves bound
by it.” 34
A Commonwealth act, it is maintained, is powerless to undo what has been done and it cannot reverse the Privy Council. The Judicial Committee and the High Court each claim to be the final court of appeal on the interpretation of the Australian Constitution.
The principle of implied prohibitions was considered in Federated Amalgamated Government Railway and Tramway Service Association v. New South Wales Railway Traffic Employes Association,35 in which the court applied the principle of previous cases to an attempted interference with the sovereign powers of the states by the exercise of the legislative or executive power of the Commonwealth. The rule laid down in D'Emden v. Pedder that when a state attempts to give to its legislative or executive authority an operation which, if valid, would interfere with the free exercise of the legislative or executive power of the Commonwealth, it is to that extent invalid and inoperative, is reciprocal, says the court. It is equally true of an attempted interference by the Commonwealth with state instrumentalities. The application of the rule is not limited to taxation. A state railway is a state instrumentality within that
34 Keith, “Legal Interpretation of the Constitution of the Commonwealth,” 12 J. Soc. OF COMPARATIVE LEGISLATION (N. S.) 120. For a criticism of the judgment and reasoning of the High Court, consult 2 KEITH, RESPONSIBLE GOVERNMENT IN THE DOMINIONS, 821–37.
4 C. L. R. 488 (1906). For the significance of the rule laid down in this case, see Attorney-General for New South Wales v. Collector of Customs, 5 C. L. R. 818 (1908). See also King v. Sutton, 5 C. L. R. 789 (1908), in which the High Court appears to have held that the power to make laws with respect to foreign commerce belongs by implication exclusively to the Commonwealth Parliament.
rule with respect to the attempt to regulate the terms and conditions of the engagement, employment, and remuneration of servants.
Few decisions as significant as those relating to the immunity of instrumentalities from taxation have been rendered by the High Court, but the trend of constitutional interpretation is shown in some minor cases which may be briefly reviewed. It was very soon determined that the High Court will not decide abstract questions of constitutional law and that a complainant must show that he has personally been injured before he can have the constitutionality of a law tested.36 The provision for the distribution of powers between the states and the Commonwealth was discussed in King v. Barger with the approval of decisions of the Supreme Court of the United States as to the distribution of powers and the insistence that a similar distribution was made in the Constitution Act.37 In the State Railway Servants case the High Court held that the inclusion of disputes relative to employment on state railways was ultra vires as an invasion of the exclusive powers of the state.38
A clear presentation of the function of the High Court is given in the Union Label case 39 wherein the decision was rendered that the portion of the Trade Marks Act of 1905 establishing a workers' mark was ultra vires as involving the state power over domestic commerce and industry. Chief Justice Griffith maintained that "It would indeed be a lamentable thing if this Court should allow itself to be guided in the interpretation of the Constitution by its own notions of what it is expedient that the Constitution should contain or the Parliament should enact. ... Now, while there is no doubt that within the ambit of its powers the Parliament is supreme, it has no authority whatever beyond that ambit. . . . But it is for this Court to determine, when its interpretation is sought, whether an asserted authority is or is not conferred by the Constitution.” 40
36 Bruce v. Commonwealth Trade Marks Label Association, 4 C. L. R. 1569 (1907). See also Attorney-General for New South Wales o. Brewery Employés Union of New South Wales, 6 C. L. R. 469 (1908).
37 6 C. L. R. 41, 67 (1908).
38 The Federated Amalgamated Government Railway and Tramway Service Association v. New South Wales Railway Traffic Employés Association, 4 C. L. R. 488 (1906).
39 Attorney-General for New South Wales v. Brewery Employés Union, 6 C. L. R. 469, 491 (1908).
40 Ibid., 500.
Justice Isaacs held that "no considerations of expediency or desirability springing from any source whatever are permissible to the Court in determining the limits of an express and substantive power. It is a mere question of dry law as to the extent of the power granted, to be determined on ordinary legal principles.” 41
As to the right to decide on the validity of acts, Justice Higgins observed:
“Nothing would tend to detract from the influence and the usefulness of this Court more than the appearance of an eagerness to act in judgment on Acts of Parliament, and to stamp the Constitution with the impress which we wish it to bear. It is only when we cannot do justice, in an action properly brought, without deciding as to the validity of the Act, that we are entitled to take out this last weapon from our armour; and the fact that the question raised in this case has not been argued before any other bench, and possibly may not be argued, or even arguable, on appeal from us, adds to the weight of our responsibility in making sure that there is a cause of action.” 42
Among the acts or portions of acts invalidated by the High Court are a state license act discriminating against the citizens of other states, 43 several sections of the Australian Industries Preservation Act of 1906,44 an award of a federal court of conciliation and arbitration contrary to a prior award of a state wage board, 45 and the regulation of the Governor General pertaining to the publication of a list of subscribers connected with any telephone exchange. 46 On the whole the court has been rather liberal in its review of the recent acts developing and extending the federal powers as defined in the Constitution.
When an issue arose over the Royal Commissions Act of 1902-12 the court could not come to an agreement and availed itself of the power under section 74 to refer a question of constitutional interpretation to the Privy Council. The Council held the act ultra vires so far as it purported to enable a Commonwealth Royal Com
41 6 C. L. R. 559.
45 Australian Boot Trade Employés Federation v. Whybrow & Co., 10 C. L. R. 266 and 11 C. L. R. 311 (1910).
46 Commonwealth v. Progress Advertising and Press Agency Co., Ltd., 10 C. L. R. 457 (1910).
a mission to compel answers generally to questions in relation to the intrastate sugar industry, or to order the production of documents relative thereto, or otherwise to enforce compliance by the members of the public with its requisition.47 The Council seemed to recognize an error in its judgment in the Webb case by admitting that in fashioning the Constitution of the Commonwealth of Australia the principle established by the United States was adopted in preference to that chosen by Canada. Recently a Commonwealth land tax assessment act 48 and an act limiting the power of the High Court with regard to awards of the Court of Conciliation and Arbitration 49 were held invalid.
JUDICIAL REVIEW IN THE STATES As in the United States, the interpretation of the Constitution is not for the judiciary of the Commonwealth alone; it falls upon every court throughout the Commonwealth. Although every court of competent jurisdiction is an interpreter of the Constitution, and the High Court subject to an advisory review by the Privy Council is the authoritative and final interpreter of the Constitution, the state parliaments enjoy a position of independence unknown to the state legislatures in the United States, or to the provincial parliaments in Canada. This arises from the fact that few prohibitions on the states are included in the Constitution and there are no inhibitions arising from general phrases like due process of law and the impairment of the obligation of contracts. Furthermore the doctrine of implied prohibitions, although accepted by the judiciary, has been given by legislative enactment a very limited application.
The nature of judicial review in the states can best be indicated by some of the decisions in Victoria and in New South Wales. In Victoria it was decided as early as 1862 that the Supreme Court had power to examine the validity of an act of the state parlia
47 Attorney-General for Commonwealth of Australia v. Colonial Sugar Refining Co., Ltd., 17 C. L. R. 644 (1913). For a criticism of the action of the Privy Council in this case, see W. J. Brown, “The Nature of a Federal Commonwealth,” 30 L. QUART. REV. 301.
18 Waterhouse v. Deputy Federal Commissioner of Land Tax, 17 C. L. R. 665 (1914). 49 The Tramways Case, 18 C. L. R. 54 (1914).
ment.50 It was declared to be the duty of the court on another occasion to interpret acts so as to carry out the manifest intention of the legislature, even though the court be compelled to strike out words to do so.51 In the case of George Dill,52 involving the question of constitutionality, the court observed:
“The case of the Bank of Australasia v. Nias was cited to shew that the Court has power to examine the validity of an Act of the Parliament of Victoria. Of this there can be no doubt. .. The case of Kenny v. Chapman turned entirely on the question whether the Act No. 128 was valid. But this is a power which should in all cases be exercised by the Court with the greatest caution. A statute passed by the Supreme Legislature of the Colony with all the deliberation which our Constitution demands, ought not to be held invalid by the Supreme Court, except on the clearest and most cogent grounds, especially where it has passed that examination to which all Colonial Acts are subjected in England, and has not been disallowed. ... The Act of the 20th Victoria, establishes a boundary of the privileges adopted. The Court, when occasions arise, must take care that the boundary is not overstepped. It is no answer to say that the task may, at times, be one of extreme difficulty. It is often so in other portions of our law. The Court must solve it in each case as it occurs."53
For New South Wales a similar precedent was established as early as 1861 in Rusden v. Weekes.54 It was held that the courts of a colony have the power and are under obligation to decide whether an Act of the Colonial Legislature is in contravention of an Act of the Imperial Parliament and consequently not binding on the inhabitants of the colony. Justices Marshall and Kent were quoted in a citation of American cases. According to Justice Mulford “where two laws are apparently inconsistent it is the province of the Court to reconcile them if possible, - if not, to say which is in force and
which is not. ... The fundamental principle of law as applicable to powers of colonial Legislatures is, that they may be controlled by the Imperial Parliament, and every Court must decide whether they have been controlled or not. It is not the duty of the Supreme Court more than any other Court to do this.''
50 In re Dill, 1 W. & W. (L.) 171, 187 (1862). 61 Regina v. Draper, 1 Vict. (L.) 118 (1870). 62 1 W. & W. (L.) 171 (1862). 53 Ibid., 187, 190. 64 Legge 1406, 1416 (1861).