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FEDERALISM, RESPONSIBLE GOVERNMENT AND THEPROTECTION OF PRIVATE RIGHTS:

A NEW INTERPRETATION OF THE LIMITS OF THELEGISLATIVE POWERS OF THE COMMONWEALTH

MICHAEL STOKES·

INTRODUCTION

It has rarely been doubted that the courts, especially the High Court, havejurisdiction over disputes as to the scope of Commonwealth powers. Althoughthe Constitution does not state specifically that these disputes give rise tolegal issues or that the courts have jurisdiction over these questions, s 74 ofthe Constitution, which prevents appeals to the Privy Council from the HighCourt on inter se questions, which include questions about the scope ofCommonwealth powers, without the consent of the High Court, indicatesthat the High Court at least has jurisdiction over these disputes. However,the Constitution does not set out the basis on which the courts' jurisdictionover these questions rests, nor does it state who has the standing to raisethem. In this paper I wish to consider the theoretical basis of the courts'jurisdiction over these questions and consider the impact which differentjusti:fications for that jurisdiction have on standing.

I shall suggest that the prevailing approach to these questions is mistakenbecause it ignores the reasons for placing limits on Commonwealth power.Most of the limits were designed to ensure a distribution of powers betweenthe Commonwealth and the States. The current approach to questions ofjusticiability and standing treats these provisions as if they also served thetotally different purpose of defining the scope of the government's powersover the people. This approach has two undesirable consequences. It givesstanding to individuals to raise questions about the scope of Commonwealthpowers, thus enabling them to enforce the federal balance. That is undesirablebecause, as I shall argue below, individuals have no interest in that balancewhich is sufficient to warrant the protection of the courts. Second, it allowsindividuals to use constitutional provisions designed to establish a federalsystem for the wholly different purpose of protecting their private rights fromgovernment interference. I shall argue below that thjs system givesunwarranted protection to private rights, especially property rights. Besides,allowing individuals to enforce the constitutional limits on Commonwealthpowers disrupts the normal processes of government. It allows the few whoare able to raise constitutional issues to challenge political decisions whichaffect their private interests, regardless of the fact that those decisions arethe outcome of the normal political processes. It takes control over animportant political issue, the way in which power ought to be distributed

* M Phil (Ox) LLB (Hons) (Tas), Lecturer in the Faculty of Law, University of Tasmania.

136 Federal Law Review [VOLUME 16

between the Commonwealth and the States, out of the hands of the normalpolitical authorities, the Commonwealth and State governments. Individualsare able to thwart political decisions on this issue, even in cases where theCommonwealth and the States are in agreement, by setting in chain a process,judicial review, which ultimately determines the distribution of power in theAustralian federal system.

We should abandon these departures from the normal processes ofgovernment. The first allows an individual to upset government decisionsfor no good reason, while the second gives the individual a power to askthe courts to enforce his views on an important issue of policy, the structureof Australian federalism, a power which he has with respect to almost noother issue. The political power which the present approach gives toindividuals may be justified if individuals had fundamental interests such asbasic rights at stake. However, no such interests are at stake. What is at stakeis the proper distribution of power between the Commonwealth and the Statesin the federal system.

Taking away the individual's power to raise questions about the scope ofthe Commonwealth's powers does not end the need for judicial review.Judicial review of the scope of Commonwealth powers has become a valuableprotection for the States. Therefore, the States should continue to be allowedto raise these issues. In fact, the States' rights to do so needs to be put ona sound theoretical footing. I shall suggest how that can be done and arguethat it is possible for the courts to protect the federal structure by enforcingthe limits on Commonwealth powers at the suit of the States withoutdisrupting the normal processes of government.

The approach to judicial review which I shall outline would permit theCommonwealth Parliament to be supreme as against individuals (except forsections such as s 92 and s 116 which may be regarded as granting individualsrights), but would allow the States to enforce those limits on Commonwealthpower which were designed to establish a federal balance~ However, the States'right to raise these issues should not be unlimited. It needs to be limited inways which recognize the limited political authority of a State. As the politicalauthority of a State does not extend beyond its borders, the States shouldonly have the right to challenge the application of Commonwealth laws to

,their own territory and not to the rest of Australia. Accordingly, aCommonwealth law should apply in a State until that State challenged it,even if the law had been successfully challenged by another State. Thisinterpretation maximises the. options available to each State and increasesthe control which a State has over its own affairs by allowing a State toacquiesce in the application of a C,ommonwealth law, rather than challengeit, whether or not that law has been challenged in the rest of Australia.

This view of the scope of Commonwealth powers requires a newinterpretation of those sections which grant the Commonwealth legislativepower, especially ss 51 and 52. As these grants of Commonwealth legislativepower are stated to be with respect to particular topics, they are normallyinterpreted as limiting the Commonwealth's power to those topics. Lawswhich fall outside the powers granted by these provisions are treated as void

1986] Protection of Private Rights 137

ab initio and therefore of no legal effect. 1 I shall argue that these provisionsshould not be read as limiting Commonwealth power in this way. Instead,they should be read as defining the powers which the Commonwealth mayexercise against the wishes of the States. They should not be read as limitingthe powers which the Commonwealth may exercise if the States do not opposeit, and they should not impose any limits on Commonwealth power whichindividuals ought to be able to enforce. If this interpretation were adopted,all Commonwealth legislation would be regarded as valid, at least initially.However, each State would be allowed to challenge the applicability, in itsterritory, of Commonwealth legislation which falls outside the scope of itsstated powers.

This article does not intend to develop principles for the interpretation ofany provisions other than those which limit Commonwealth legislative powerin order to establish a federal system. For example, it is not intended to suggesthow sections such as s 92 or s 116 ought to be interpreted. Nor is it intendedthat the principles outlined below should be applied to constitutional limitson the powers of the States, even where those limits were imposed as partof the federal plan. These provisions need to be analysed separately. Withoutsuch an analysis, it should not be assumed that the principles which this articledevelops can be applied to them. My purpose is not to suggest principleswhich can be applied to all provisions of the Constitution establishing thefederal balance, but to suggest that the provisions which limit the Commonwealth's power in order to establish a federation need to be reinterpreted.

Before considering the alternative interpretation, it is necessary to examinethe present position in greater detail. Part I of this article outlines the presentapproach and its implications for the law of standing. It suggests that thepresent approach assumes that the Constitution not only divides up governmental power between the Commonwealth and States but also, together withthe Constitutions of the States, consists of grants to the governments ofAustralia of all the powers which they may exercise over the people. Part Iargues that the idea that the Constitution simply grants and limits the powerswhich government may exercise over the people is unacceptable and examines

) As it has always been assumed in Australian Constitutional Law that laws which go beyondthe limits of Commonwealth power are void ab initio, the concept of invalidity and the justificationfor it have not been analysed in any great detail in the cases or the scholarly literature. However,there are scattered references to the doctrine in the cases: eg the judgments of Latham CJ inRiverina Transport Pty Ltd v Victoria (1937) 57 CLR 327,341-2, and Arthur Yates and CompanyPty Ltd v Vegetable Seeds Committee (1945) 72 CLR 37, 64; and those of Dixon J in Jamesv Commonwealth (1939) 62 CLR 339, 361-362 and, on the general implications of limits onpower, in R v Vizzard, ex parte Hill (1933) 50 CLR 30, 60-61. Although the cases do not containa comprehensive analysis of invalidity, its implications have been worked out as the need hasarisen; eg the Constitution confers on individuals an immunity from laws which are invalid,but does not confer any right of action: see James v SA (1927) 40 CLR 1, 41; James vCommonwealth (1939) 62 CLR 339, 361-362; Riverina Transport Pty Ltd v Victoria (1937) 57CLR 327, 341-342. Later legislation cannot legalise acts done in reliance on invalid legislation:Antill Ranger and Company Pty Ltd v Commissioner for Motor Transport (1955) 93 CLR 83,on appeal in (1956) 94 CLR 177; and finally the Court, not Parliament, is the ultimate arbiterof the scope of the Parliament's powers, even where the scope of those powers depends uponopinions as to matters of fact: see Australian Communist Party v Commonwealth (1951) 83CLR I.


some of the consequences to which it leads. Finally, Part I considers thearguments which have been used to support this idea and shows how theyare based on theories of the proper relationship between government, thelaw and the people which are totally unrelated to the content and purposeof the constitutional provisions which define the scope of Commonwealthpowers.

Part II argues for a new approach to the interpretation of Commonwealthpowers. First, it analyses the interests of the States in the limits imposed onCommonwealth power and examines the implications of those interests fora satisfactory theory of judicial review. It suggests that, because limits wereplaced on Commonwealth power in order to ensure that the States wouldretain a degree of independence and competence, and because the States haveno other way of enforcing those limits, the States should retain the right toenforce them in the courts.

Second, Part II considers arguments for allowing the individual to raisequestions about the scope of Commonwealth powers other than the argumentsrejected in Part I. It rejects arguments for individual standing based bothon the view that individuals have an interest in the federal balance itself andon the claim that the federal balance protects individual rights, such as aright to freedom or a right to participate in government.

Part III considers how a system based on limiting the right to raise questionsabout the scope of Commonwealth powers to the States should work. Itconsiders two options, allowing a State to challenge Commonwealthlegislation for the whole of Australia and allowing a State to challenge onlyfor itself, leaving the other States free to acquiesce in or challenge the lawas they see fit. It opts for the second alternative, on the grounds that thatalternative is more co~sistent with our ideas of political accountability, andconsiders how that second alternative would work in practice.

PART I: THE ORTHODOX APPROACH TO INTERPRETINGPROVISIONS WHICH DEFINE COMMONWEALTH POWERS

The two ideas on which the orthodox approach to interpreting the limitson Commonwealth power is based, the idea that the Commonwealth was

,granted limited powers in order to protect the constitutional position of theStates, and the idea. that the Constitution grants all of the powers which theCommonwealth may exercise over the people, are reflected in the law ofstanding. This section examines the second of these ideas, considers itsinfluence on the law, analyses the arguments which are usually used to supportit, and concludes that it is unjustified.

The notion that the Constitution, and, in particular, provisions such ass.51 which define the scope of the Commonwealth's powers, grants theCommonwealth all of the powers which it may exercise over the people isnot based on any analysis of the terms of the Constitution or of their purposebut on a priori assumptions about what the Constitution does. Its a priorinature is reflected in the law governing the standing of individuals to enforcethe limits on Commonwealth power to which it has given rise.

That law is not based on any att~mpt determine the interests which the


Constitution creates or to work out whether those interests need protection.Nor is it based on an attempt to allow or to limit standing to those who possessthese interests. Rather, it allows standing to individual litigants whether ornot they have constitutional interests at stake and it avoids any attempt toanalyse such interests.

The law governing the standing of individuals allows an individual standingif he can show that his private interests, rather than any constitutionalinterests, have been affected by government action which may beunconstitutional. 2 This approach has been applied to almost allconstitutional issues, including inter se questions. In general, no distinctionis drawn between the various types of constitutional issue, cases involvinginter se questions being treated in exactly the same way as cases involvingthe rights of the citizen, such as s 92 cases, or cases dealing with Parliamentaryprocedures, such as the s 57 cases. 3

Intuitively, it appears to be wrong to adopt an approach to constitutionalinterpretation which does not seek to ensure that the interests which judicialreview protects are those which the Constitution creates. Such an approachseems to be wrong because it is likely to ignore interests which the Constitutionappears designed to protect, while protecting interests which do not warrantprotection. The way in which the idea that the Constitution is a grant to theCommonwealth of all the powers which it may exercise over the people appliesto federal provisions such as s 51 supports this intuition. When the idea thatthe Constitution is a grant of power is applied to s 51, it operates to protectthe wrong parties, and the wrong interests. As I shall argue in Part II, theinterests which provisions such as s 51 were designed to protect were thegovernmental interests of the States. The States need to be able to enforcethe limits on Commonwealth power contained in s 51 in order to protect theirgovernmental prerogatives; that is, legislative and policy making powers.However, .interpreting provisions such as s 51 as grants of power over thepeople does not provide any protection for those State interests, but protectsthe private interests of individuals. It ignores State constitutional intereststo such an extent that it treats the States as if they were individuals and grantsthe States standing on the same basis as it allows standing to individuals;

2 The nature and the extent of the interference with private interests required to found anaction was considered early in Attorney-General (NS W) v Brewery Employees Union of NewSouth Wales (The Union Label Case) (1908) 6 CLR 469. Since then, it has been recognizedthat if there is no unlawful interference with the complainant's private interests even if therehas been unconstitutional acts which caused, at least in part, the complainant to suffer loss,the complainant has no right to recovery; McClintock v Commonwealth (1947) 75 CLR 1, 19per Latham CJ and James v Commonwealth (1939) 62 CLR 339, 361 per Dixon J. The relevantprinciples are considered in detail by G D S Taylor, "Standing to Challenge the Constitutionality of Legislation" in L A Stein (ed) Locus Standi (1979) 143-172.

3 No action has as yet been brought by an individual to challenge the validity of legislationenacted under s 57. However, it is clear that, if s 57 is justiciable, there are no legal barriersto such actions. Although the two challenges to the validity of legislation based on s 57 whichwere brought in 1975 (Victoria v Commonwealth (The PMA Case) (1975) 7 ALR 1, and WesternAustralia v Commonwealth (Territorial Senators Case) (1975) 7 ALR 159) were brought by states,it is clear that as the challenges were to the validity of the legislation, they could have beenbrought by individuals who were affected by the legislation to an extent greater than was theordinary member of the public.


that is, to protect their private rights.4 Occasionally, Commonwealthlegislation may invade State rights which are analogous to private rights, forexample it may tax State-owned property.5 In this situation, the notion thatthe Const~tution simply defines powers allows the States to protect theirproperty rights in the same way that it permits the individual to protect hisprivate rights.6 However, by itself, it provides no protection for the rightof the States which needs protection in a federal system, the right to preventthe Commonwealth from invading their area of competence.

In Australia, the notion that the Constitution grants and limits the powersof government over the people have not been applied dogmatically to denystanding to the Commonwealth and the States to protect interests other thanmaterial and property interests. In particular, the courts have allowed themto sue to protect their constitutional prerogatives.7 Therefore the States havehad no difficulty gaining standing to protect· their interest in the limits onCommonwealth powers. Instead, the courts have recognized thatCommonwealth powers were limited in order to protect the States as wellas to define the powers which could be exercised over the people. Almostfrom the beginning of federation, it has been recognized that the

4 In America, where for many years judicial review was based on the notion that theConstitution was a grant of power by the people to government which the government couldnot exceed in its dealing with the people (see Marbury v Madison (1803) 1 Cr 137, 176-178;2 LEd 73-74) the idea that states are in the same position as individuals was carried to its logicalconclusion. States were not permitted to sue the federal government merely to prevent thatgovernment from invading their areas of competence: Massachusetts v Mellon (1923) 262 US447, 484-485; 67 L Ed 1078, 1084.

5 Australian examples in ~hich standing would have been available on this ground includeMelbourne Corporation v Commonwealth (The State Banking Case) (1947) 74 CLR 31 and NewSouth Wales v Commonwealth (The Garnishee Case) (1932) 46 CLR 155. In the former case,the Commonwealth attempted to stop the States from banking with the banks of their choice,while in the latter the Commonwealth sought to take steps to enforce a debt owed to it by NewSouth Wales.

6 In the United States where the States could not sue to protect their constitutional position(see note 5 above), it has always been accepted that a State has standing to sue the federalgovernment or its officials where that government has invaded the State's private rights orinterfered with its material interests: Missouri v Holland (1920) 252 US 416; New York v United-States (1946) 326 US 572, 90 L Ed 326. For a general discussion of the standing of States tosue the federal government in the US, see L H Tribe, American Constitutional Law (FoundationPress Inc Mineola New York, 1978) 101.-102; C J Antieau, Modern Constitutional Law VolII The States and the Federal Government (Lawyers Co-operative Publishing Co, Rochester,New York, 1969) 664-666.

7 Gibbs J (as he then was) summed up the attitude of the High Court most clearly in Victoriav Commonwealth (The AAP Case) (1975) 134 CLR 338 when he said at p 381-

In my opinion it is involved in the very nature of the Constitution that either the Commonwealthor a State should have standing to institute legal proceedings where the other has exceededits constitutional authority. It seems to me that the Constitution, in defining the powers ofthe respective bodies politic, assumes that a remedy will be available to one of those bodiesif another trespasses beyond the boundaries within which the Constitution has confined it.and again at 383-I would base my conclusion (that Victoria had standing) on the fact that the Constitution,by defining the limits inter se of the constitutional powers of the Commonwealth and thoseof any State or States, must be taken to have given to the Commonwealth and to each Statea right to the observance of the constitutional limits and a standing to obtain such remedyas is necessary to secure their observance.


Commonwealth and the States have an interest in enforcing the limits oneach others' powers in order to maintain the federal balance.8

However, the recognition given to the interests of the Commonwealth andthe States in the Constitution and in particular, in the federal balance, isan exception which is difficult to reconcile with the theory that theConstitution consists of grants of power over the people to government. 9

As noted above, the grants of power theory does not base constitutionalinterpretation on any notion that the Constitution creates or protects rightsor interests, whether they be the rights or interests of the people or of theStates and the Commonwealth. Instead, it bases constitutional interpretationon the notion that a government can only legally exercise those powers whichhave beenspecificaUy granted to it. That notion is itself based upon commonlyheld ideas about the rule of law.

The principle which underlies the grant of power theory is that of·agovernment subject to law in all its dealings. This principle is formal ratherthan substantive, in that the law to which it requires the government to besubjected has no fixed content. It does not claim that there is any naturallaw to which a government is subject. Rather, it aims to subject governmentto a set of restraints chosen by men and set out in a written document, theConstitution.

The notion that the government ought to be subject to defined, enactedlegal restraints is a familiar one in the common law. In administrative law,it has given rise to the doctrine of ultra vires, which provides the basis forthe judicial review of executive action. In administrative law, as in

8 Attorney-General (NSW) v Brewery Employees Union of New South Wales (Union LabelCase) (1908) 6 CLR 469, especially the judgment of Isaacs J and to a lesser extent that of Barton Jat 557-558 and 520 respectively, and Commonwealth v Queensland (1920) 29 CLR 1, 12 perIsaacs and Rich JJ.

9 In the early cases there was some dispute as to whether the action was brought by theCommonwealth or the State itself to protect its jurisdictional competence or whether it wasbrought by the Attorneys-General as parens patriae to protect the private rights of his citizensfrom unlawful interference by another government. In the Union Label Case Griffith CJ andO'Connor J opted for the latter view: (1908) 6 CLR 469, 499 and 550-551 respectively, as didDixon J in Attorney-General (Victoria) v The Commonwealth (The Pharmaceutical BenefitsCase) (1945)71 CLR 237 at 272. The latter view may be seen as an attempt to allow the Statesand the Commonwealth standing through their Attorney-General without conceding that theConstitution does more than limit the powers which the government may exercise over the people.However, very early on it must have become obvious that it was a fiction because the actionwas brought not to protect the right of the people, but to protect the constitutional positionof the Commonwealth or the State as the case may be: see Commonwealth v Queensland (1920)29 CLR 1, 12 per Isaacs and Rich JJ. See also Williams J in the Pharmaceutical Benefits Case(1945) 71 CLR 237, 276. Today it cannot be denied that the States and the Commonwealthsue to protect their own constitutional position rather than the rights of their citizens, becausethere has been an increasing tendency to allow them, as well as their Attorneys-General, standing:Victoria v Commonwealth (the AAP Case) (1975) 134 CLR 338, 365-366, 380-383 and 401-402.per Barwick CJ, Gibbs and Mason JJ respectively; WA v Commonwealth (The TerritorialSenators Case) (1975) 7 ALR 159, 175 and 226 per Barwick CJ and Murphy J respectively;Attorney-General (Cth); ex rei McKinlay v Commonwealth (the Voter's Case), (1975) 135 CLR1, 26-27 and 53-54 per Barwick CJ and Gibbs J respectively. See also Victoria v Commonwealth(1975) 7 ALR 1 where the majority allowed Victoria to bring the action in its own name. However,none of these cases contain an analysis of the nature of the State's right to standing or of therelationship between State standing and individual standing.


constitutional law, ultra vires views judicial review of government action asdesigned to maintain a particular conception of the rule of law, rather thanto protect. specific rights or interests. 10 The conception of the rule of law onwhich the .administrative law doctrine of ultra vires is based seeks to protectindividuals from unlawful usurpations of power by the government bysubjecting officials, and through them the government itself, to the ordinarylaw of the land. 11 This conception of the rule of law rules out the notionthat government action is prima facie valid or justified. Therefore, anyindividual who has a sufficient interest in the result of government actionto gain standing can seek to have the courts rule on the legality of theinterference. 12 Such actions force the government in its defence to state thebasis of the legal authority on which it relies to justify its acts. Usually, theauthority for the actions of the government is found in legislation vestingit with defined powers. Where the government relies on such legislation inits defence, the court has the responsibility of determining whether thegovernment's actions were permitted by the powers conferred. If they werenot, the government has acted outside its powers and its actions lack anystatutory justification, so that their legality lies to be determined by theprinciples of the common law.

The notion that the Constitution consists of grants of power is based onsimilar ideas about the rule of law and leads to a similar doctrine of ultravires. These ideas, when applied to constitutional law, lead to the conclusionthat the Constitution has effects analogous to those of an ordinary law definingthe powers of the executive government or of a subordinate governmentauthority.

Therefore, when individuals challenge the validity of Commonwealthgovernment action, the government may have to show that not only wereits acts authorised by statute, but also that the statute was authorised by theConstitution. Therefore, the doctrine allows individuals to use theConstitution in order to protect their own private interests from actions ofthe government which the Constitution does not authorise. As a result,constitutional law tends to protect private rights, especially property rights,rather than maintain the constitutional structure.

The tendency of constitutional law to protect property rights from invalidlegislation rather than to maintain the constitutional structure is unjustifiable.Our political system does not accord any special sanctity to property rights.

10 This conception of the rule of law received its classical expOSitIon in A V DiceyIntroduction to the Study of the Law of the Constitution, "Part II - The Rule of Law", especiallyChapter 4, "The Rule of Law: its nature and general applications". (All references to Diceyin this article will be to the 9th edition.)

II Ibid 193-194.12 Ibid. For a detailed analysis of the nature of the interests required to gain standing to

challenge the validity of official action, see the collection of essays in L A Stein (ed) Locus Standi(1979) especially those in "Part 2 Locus Standi and Remedies". Recently in Australia as in otherjurisdictions, there has been a tendency to liberalise the law of standing, first, to take accountof the fact that the Attorney-General cannot be relied upon to challenge invalid acts of hisgovernment and second, to protect interests other than those of a proprietory or financial nature,see The Australian Conservation Foundation v Commonwealth (1980) 28 ALR 257; Onus v44/coa (1980) 36 ALR 425.


Normally they are subject to change by the legislature. Indeed, it is difficultto imagine how a legislature could work if property rights were generallyconsidered to be sacrosanct. One of the major purposes of a legislature isto provide a means for altering private rights where that is required by thepublic interest. As property rights are not sacrosanct, but are subject tolegislative change, any institution which protects some property rights fromlegislation needs a strong justification. For example, it may be justifiable .toprotect some selected property rights if by doing so it is possible to protecta basic political right, such as the right to free speech. However, the propertyrights which are protected by constitutional review are not selected for theirimportance. Instead, the rights which receive protection are selected in arandom manner. When the courts apply ultra vires, they ignore the natureand importance of the private interests which they are being asked to protect,and instead, focus their attention on whether the government action whichinterfered with those rights was within its power. Such an approach operateslike a lottery,. enabling some, but not all, individuals to protect their privaterights. Given that, in our political system, private rights are generally subjectto alteration by the legislature, such a system of random protection isunjustifiable. It protects the private property of some, but does not give equalprotection to the property of all.

Our system of judicial review, in which no consideration is given eitherto the nature of the constitutional interests or the private interests which areprotected, has arisen because the accepted justification for applying ultra viresto the Constitution concentrates totally on the conception of the rule of lawwhich ultra vires is seen as maintaining. It ignores both the interests whichthe Constitution creates and protects and the interests which are created andprotected by allowing individuals to challenge the constitutionality oflegislation. It has been a mistake to concentrate on the role of judicialreviewin maintaining the rule of law without considering whether the interestscreated by judicial review could be justified. All judicial review protects someinterests and ignores others. Therefore, before adopting any type of judicialreview, it is necessary to ensure that the interests which it protects can beseen as arising out of the Constitution, properly interpreted, and aresufficiently important to warrant the protection of the courts.

The courts have probably failed to consider whether the interests whichare protected by applying ultra vires to the Constitution ought to be protectedbecause the doctrine of ultra vires and the conception of the rule of law whichit embodies are not normally regarded as creating or protecting interests.However, at least in administrative law, ultra vires protects a fundamentalconstitutional interest or guarantee. To clarify the nature of this guarantee,and to avoid any complexities which may arise from our written Constitution,I shall examine the role of ultra vires in British administrative law. Theconception of the rule of law protected by ultra vires enshrines the basicconstitutional interest which the British political system gives to the individual,the interest which the individual has in his relationship with Parliament.According to that relationship, the British Parliament may alter any of therights of the people, but only Parliament has that power. No other institutionor government agency may alter the people's rights unless Parliament has


granted it the authority to do so. Ultra vires protects that relationship byallowing an individual whose private interests are affected to challenge thevalidity of any attempt by a government agency to exercise powers whichhave not been conferred on it by Parliament.

Examining the original function of ultra vires enables us to understandits effects in Australian constitutional law. It gives standing to individualsrather than to the Commonwealth and the States because it was developedto protect individual interests from usurpations of power by· government,rather than to regulate inter-governmental relations in a federal system. Ittends to concentrate the j.udge's mind on the private interests at stake ratherthan on any constitutional interest which the litigant may have because, inits original context, that of British administrative law, it protected aconstitutional interest which obviously existed and which was shared by all;ie, the interest which the individual has in his relationship with the parliament.In this context, the existence of the constitutional interest was not at issueand accordingly was· taken for granted. Standing was determined byconsidering whether the plaintiff had a constitutional interest,because it wasconceded that he had, but by determining whether he had a private interestat stake which was sufficient to differentiate him from the rest of the public,who, it was conceded, shared his constitutional interest. 13 In other words,to gain standing to protect the constitutional interest which he shared witheveryone else, the individual had to show that he was more affected thanthe normal person. Usually, that required him to show that his privateinterests were affected by the abuse of power of which he complained. 14

It is not surprising that, when ultra vires was applied to the· AustralianConstitution, it led the courts to determine issues of standing by consideringwhether the litigant's private interests were affected rather than by consideringwhether he had an interest in the constitutional issue which he was raising.It was assumed that the constitutional interest existed, just as it was knownto exist in the normal administrative law context of ultra vires. However,that assumption was not warranted, because, taken as a whole, theConstitution does not create or protect any individual interest similar in natureand importance to that protected by ultra vires in administrative law; thatis the relationship between the individual and parliament. Of course, theConstitution does protect some individual interests and guarantee some rights,for example in s 92 and s 116. Ultra vires may be used to protect these rightsby invalidating legislation which purports to limit them. However, the

13 Traditionally, individuals have been denied standing simply to protect that constitutionalinterest in order to prevent a multiplicity of actions. That task was left to the Attorney-Generalin· his role as parens patriae. .

14 The general rule was set out by Buckley J in Boyce v Paddington Borough Council [1903]1.· Ch 109, 114 in the following terms- .

A plaintiff can sue without joining the Attorney-General in two cases: first, where theinterference with the public right is such as that some private right of his is at the same timeinterfered with ... and, secondly, where no private right is interfered with, but the plaintiff,in respect of his public right, suffers special damage peculiar to himself from the interferencewith the· public right.

For an analysis of this rule, see J D Haydon "Injunctions and Declarations" in Stein op cit note12, pp 38-40 and 45-54.


guarantees of individual rights which ultra vires could be used to protect arefew in number and limited in scope. Their existence does not show that theConstitution,· taken as a whole, was designed to protect the interests ofindividuals or that the bulk of the Constitution was to be enforced by ultravires. In fact, the contents of the Constitution belie the notion that it wasintended primarily to protect individuals from government or even to dealwith the relationship between the government and the people. Most of itsprovisions deal with the structure and powers of the various organs of theCommonwealth government or distribute functions between theCommonwealth and the States. Individuals are strangers to these provisionsand do not have any interest in them which is sufficiently weighty to warrantthe protection of the courts.

As most of the Constitution does not deal with the relationship betweenthe people and the government, but deals with relations between the federaland state governments, it is not appropriate to apply ultra vires to it. Ultravires was developed to provide a remedy for individuals whose private interestswere threatened by the unauthorised acts of government departments ratherthan to deal with the issues about the division of governmental powers whicharise in a federation. However, the orthodox theory of judicial review, whichapplies ultra vires to the Constitution, treats the Constitution as if it werea piece of ordinary legislation limiting the powers of subordinate authorities.This approach is unacceptable because the differences between theConstitution and a piece of legislation granting defined powers to asubordinate government agency are easily illustrated. Legislation conferringlimited powers on subordinate authorities can only be understood in lightof the doctrine that only the parliament and those executive agencies on whomit confers authority can alter the rights of the people. If that principle didnot exist, government agencies could be established by executive fiat; wouldnot need to have their powers conferred on them by legislation, and wouldnot be subject to the doctrine of ultra vires. In other words, legislationconferring powers on subordinate authorities takes its meaning from abackground of constitutional theory which includes the doctrine of ultra vires.The Constitution is quite different. It can be understood on its face as adocument establishing a federal government and setting out that government'srelations with the States. Unlike subordinate legislation, it does not need tobe read in the light of any principles such as ultra vires which limit the waysin which government can acquire power over the people. Reading it in thelight of such principles simply distorts its meaning and gives unwarrantedprotection to some private property rights.

Because the Constitution can be understood without reference to politicalprinciples about the scope of government authority, it is possible and indeedproper to derive a theory of judicial review from the constitutional text itself,rather than from such principles or from administrative law doctrines suchas the doctrine of ultra vires. The rest of this article is an attempt to developsuch a theory from the text. As the text does many different things, it is nota general theory applicable to the whole Constitution but is limited to thoseprovisions which place limits on the legislative powers of the Commonwealth.Judicial review of other provisions will need to be based on different


principles. The principles of judicial review which I shall develop are basedon an analysis of the interests which the provisions create and on an analysisof the means available for protecting those interests. The argument paysparticular attention to the need to reconcile the federal principles which liebehind the limits on Commonwealth power with other fundamental principlessuch as the principle of responsible government.

PART II: A NEW APPROACH TO INTERPRETINGCOMMONWEALTH POWERS

A Judicial Review and the Interests of the States in the Limits Imposedon Commonwealth Legislative Power

As I have argued above, an analysis of the content and purpose of theprovisions granting and limiting Commonwealth power, such as ss 51 and52, shows that they were designed to maintain a federal balance. Theyguarantee both the Commonwealth and the States an- area of competenceby dividing up the legislative powers between them.

In particular, when considered with ss 106-109, it is clear that they aredesigned to protect the role of the States by limiting the powers of theCommonwealth rather than to limit the powers of government over thepeople. The fact that the States' interest in the limits on Commonwealth powercreated by these provisions is greater than that of the people is expresslyrecognized by the Constitution in ss 51 (37), which allows a State to alter itsposition vis-a-vis the Commonwealth by referring additional powers to theCommonwealth. In other words, the provision allows the Commonwealthand the States to alter the federal balance by agreement, without referenceto the people.

Therefore, the terms of the Constitution, when taken at face value, suggestthat it is the States, rather than individuals, which have the major interestin ensuring that the limits on Commonwealth power are enforced. It is nownecessary to consider whether the interests of the States are sufficiently weightyto warrant protection by the Courts.

The Constitution does not explicitly state that provisions such as ss 51 and52 are to be enforced by the courts. It is arguable that the High Court shouldnot enforce the limits on Commonwealth power at all, but should leave themto be applied by the Commonwealth and States to themselves or to beenforced by political means. However, it is unlikely that these provisions couldbe treated as not being justiciable, first, because of the existence of s 74 whichappears to assume that there will be judicial review, second, because, if theprovisions were not enforceable, the States would be left with very littleprotection. The provisions granting legislative power to th~ Commonwealthare a part of the scheme for dividing up power between the Commonwealthand the States. If the scheme for dividing up constitutional power is to beadministered fairly by the Commonwealth and the States themselves, it isnecessary that they be in roughly equal bargaining positions. Otherwise, oneparty will be able to impose its interpretation of the scope of its powers onthe other. In the Australian context, that would mean that the Commonwealth


would impose its views on the States. The Commonwealth is in the strongerposition because it has specific, enumerated powers and because its lawsprevail in cases of conflict. By interpreting its enumerated powers widely,the Commonwealth would be able to exclude the States from most areas ofgovernment, reducing their power and status in a way which was notcontemplated by the Constitution.

To control the Commonwealth and to prevent its exercising its powers inways which would destroy or emasculate the States, institutional checks onthe Commonwealth are needed. The High Court's jurisdiction over the scopeof Commonwealth powers and its right to invalidate Commonwealthlegislation is one such institutional check. The Constitution could haveprovided for others. For example, it could have given the States a degreeof influence over Commonwealth government decision making by setting upthe Senate so that it consisted of delegates representing the States asinstitutions rather than representatives representing the people of each State.If the Senate had consisted of delegates representing each of the States andanswerable to the State governments, that may have given the States asufficient institutional check on Commonwealth power to warrant not havingjudicial review. I-Jowever, Senators are not delegates of their State but arerepresentatives of the people of each State and are free to consider eachproposal which comes before them on its merits, regardless of the way inwhich it will affect their particular State. The easiest way to convert Senatorsinto delegates of the States would be to have them appointed by andanswerable to the governments of their States. When the draftsmen of ourConstitution decided that Senators would be elected by the people of eachState, they may be taken to have deliberately decided that Senators wouldnot be delegates but would be representatives, free to exercise their ownjudgment on the issues which come before them. 15 They established theSenate as a State's House to the extent that it was designed to provide anequal degree of representation for the people of each State. However, theSenate was not established in a way which would enable it to protect the Statesby providing an institutionalized voice for the States and their governmentswithin the decision making processes of the Commonwealth government.

Since the States have no institutionalized influence over Commonwealthgovernment decision making, if the balance of Commonwealth/State powerwere left to political processes, the States would be denied a voice in theCommonwealth government decisions which in effect would determine thatbalance. Politically, the Commonwealth is answerable to the people throughelections, but is not answerable to the States. Therefore, the only remedieswhich the States would have had would be to appeal to the people or to

15 Many, if not all, would have been familiar with the distinction between a delegate, whomay receive instructions from his constituents, and a representative, who may not receive suchinstruction because he is sent to exercise his own skill and judgment in the interests of thosewhom he represents. The distinction was well understood a hundred years before the Constitutionwas drafted; see Burke's Speech to the Electors ofBristol, Works (Henry C Bohn London 1845)Vol 2 pp 11-14. Not only was the distinction well understood, it was also basic to the systemof representative responsible government which existed at the time and which was adopted bythe draftsmen of the Constitution; see A H Birch Representation (1971) Ch 3, especially "TheWhig Theory of Representation" pp 37-40.


attempt to influence Commonwealth government decision making throughthe political parties. The Constitution itself would leave them politicallypowerless as against the Commonwealth. The States' lack of any politicalinfluence over how questions about the scope of the Commonwealth's powerswould be decided by the Commonwealth P,arliament is a strong argumentin favour of courts having jurisdiction over such questions at the instanceof a State. One of the main functions of a court is to provide a remedy toan individual or to an institution which has rights, but which does not havethe political power to enforce those rights itself. Courts are a device by whichsociety intervenes and put~ its power at the disposal of an otherwise powerlessparty whose rights or interests have been interfered with. For example, ifmy car was stolen, even though I have a right to the car, I do not possessthe political power to enforce that right myself. If courts did not exist myonly remedy would be to appeal to Parliament or to the Government toremedy the wrong. That would be an ineffective remedy because neither theParliament nor the Government would be under a duty even to hear mycomplaint, let alone decide it in a particular way. Courts are the normal devicefor providing a remedy to the politically powerless in sucl;I situations.Therefore, enforcing the limits on Commonwealth power at the suit of a Stateis analogous to the normal functions of a court. Limits were placed onCommonwealth power to protect the States, and by intervening, the courtsprovide a remedy for the States which have an interest in those limits, butare politically unable to enforce that interest.

To sum up, it is necessary to.allow the States to enforce the limits on theconstitutional powers of the Commonwealth in order to maintain a federalbalance. The States are provided with no other means of protecting theirinterests. In the Introduction, I suggested that each State sl!ould only be ableto sue for itself; ie, it should only be able to ask the court to determine thestatus of Commonwealth law within its boundaries, rather than throughoutAustralia, because its interests do not extend beyond its own borders.However, before considering the argument for that conclusion, it is necessaryto consider whether there are any arguments for allowing individuals standingto raise questions about the scope of Commonwealth powers other than thoseconsidered in Part I because allowing individuals standing to raise these issuesdetermines the effects of a ruling of invalidity. If individuals have standing,the effects of any judgments which they obtain will be uniform throughoutAustralia, because the basis of any complaint by an individual is that thelaw cannot apply to any person in his legal position, regardless of where thatperson lives in Australia. Therefore, allowing individuals standing to enforcethe limits on Commonwealth power requires that when a law is invalid, itis invalid throughout Australia. Thus allowing standing to individualseffectively rules out the option of allowing a State to challenge the applicationof a federal law to its territory, but not to the territory of the rest of Australia.

B The Individual and Standing to Raise Issues about the Scope ofCommonwealth Powers

In Part 1, I rejected the traditional doctrine which allows individuals toenforce constitutional limits such as those placed on the powers of. the


Commonwealth Parliament on the assumption that such limits were imposedto protect private interests from all government interference except that whichis specifically authorised by the Constitution. It is now necessary to considerwhether individuals have any other interest in the scope of Commonwealthpower which is sufficient to warrant the protection of the courts.

The arguments for allowing individuals to bring questions about the scopeof Commonwealth powers before the court are not strong. The Constitutionitself appears to deny that individuals have any interest in the scope ofCommonwealth powers, because the Commonwealth and the States may alterthe scope of those powers by agreement between themselves: s 51(37). Noreferendum is required. An appeal to the people, ie a referendum, is neededonly if the Commonwealth and the States cannot agree among themselves.However, I do not wish to rely too much on this provision, because in practiceit has rarely been used. Most attempts to transfer power to theCommonwealth have been by referenda which leave the issue to the people.Besides, the fact that the Commonwealth and States can alter the federalbalance in favour of the Commonwealth by mutual agreement does not ofitself rule out the possibility that individuals have a substantive interest inthat balance. It is not uncommon to allow substantive individual rights tobe altered by special procedures. 16 It is possible that, if individuals do haverights in the federal balance, the procedure required by pI 37 was set up togive those rights a degree of qualified protection. If the requirement that theStates must agree to any transfers of power to the Commonwealth is aprocedural guarantee of the individual's rights in the federal balance, it hasproved to be effective, because the States have referred few powers to theCommonwealth.

However, even if pI 37 is ignored, it is difficult to justify allowingindividuals to enforce the limits on Commonwealth power. When anindividual brings such an action, he is claiming the right to have an act ofParliament invalidated. Such a right cannot be allowed merely because thelegislation in question affects his private interests, because the purpose ofParliament is to alter private interests for the benefit of the public. Mostlegislation limits some private rights. Therefore, any right granted to anindividual to have an act of Parliament invalidated needs strong justification;that is a justification strong enough to overcome the argument that the normalfunction of parliament is to alter the rights and interests of individuals. Suchan argument may be based on the fact that the individual's fundamental rightshave been interfered with by the legislation, especially if the Constitutioncontains a bill of rights. However, it is doubtful that an argument that thelegislation in question upsets the federal balance of power is sufficiently strongto justify such a right, especially as the States can raise the matter on theirown behalf.

There are two types of justification which may be offered for allowing theindividual the right to enforce the limits on Commonwealth power and the

16 For example the voting rights of South Africa's Cape Coloured were protected byconstitutional provisions which prevented their alteration or abolition except by a 2/3 majorityof both houses of the parliament sitting together, see the South Africa Act which by s 152 providedthis protection to the voting rights granted to Coloureds by s 35.


federal balance which they establish. First, it may be argued that the individualhas an interest in maintaining the federal balance of power which is sufficientto warrant the protection of the courts. Second, it may be that the individualought to be allowed to sue, not to protect an interest in the federal balanceof power itself, but to protect some other value which the federal structureenhances. On this view, the federal structure is regarded, not as of value initself, but as a device which indirectly maintains other values. Often the valuewhich federalism is regarded as protecting is individual liberty. It is necessaryto consider both of these arguments in turn.

(1) The individual's interest in the federal balance of power

Individuals do have interests in the balance of power in a federation. Forexample, they have an interest in having some decisions made locally, becausetheir influence over decisions made locally may be greater than it is over thosemade federally. On the other hand, individuals may have an interest in somedecisions being made centrally simply because the problems are national ones,which the States would not have the capacity to control effectively. Theseconsiderations are highly relevant when a federation is being established.Individuals have a right to expect the draftsmen of a federal constitutionto attempt to ensure that these interests are protected by establishing a balanceof power which gives matters of national concern to the Federal governmentand matters of local interest to the States. However, once the federation hasbeen established, the individual's interest in the balance of power is not sostrong that he ought to be given the right to enforce it through the courts.

In my opinion, the individual does not have an enforceable interest in thebalance of power in a federation because as far as he is concerned it is apolicy issue, little different from other major policy issues. No fundamentalrights of his such as the right to free speech or to freedom of conscience areinvolved. Therefore it is difficult to see why he should have access to the courtsin order to attempt to enforce one view of the federal balance when he isnot allowed similar access to argue other policy issues, such as whether thegovernment should adopt a system of direct rather than indirect taxation.

It may be objected that the policy of federalism is different from otherpolicies in one fundamental respect and that that difference justifies allowingindividuals to enforce it through the courts. Unlike other policies, federalismis protected from being changed by normal political processes by beingentrenched in the Constitution. There is an argument which focuses on thatdifference in order to defend allowing individuals to raise federal issues inthe courts. The argument is the argument of distrust. The argument of distrustis based on the truism that federalism is entrenched in the Constitution inorder to protect it from change by normal political means. The argumentconcludes from that truism that the reason for protecting federalism frompolitical change is that federalism is too important to' be entrusted topoliticians. It claims that to protect federalism effectively, it is necessary todo more than entrench it in a written document. In particular, it is necessaryto establish a means by which individuals can enforce the document againstthe wishes of the politicians. Allowing individuals to raise constitutional issuesis a good way of doing this.


The argument appears plausible, but there are a number of objections toit. First, it is not at all clear that federalism is entrenched in the Constitutionsimply in order to protect it from politicians. Our political system is not basedon distrust of politicians. Other fundamental principles, such as responsiblegovernment and representative democracy, and basic rights, such as freedomof speech and freedom of association, are entrusted to them rather than beingentrenched in the Constitution. This suggests that federalism was entrenchedfor reasons other than simple mistrust. Besides, there are other, better reasonswhich are related to the structure of federalism itself for protecting the federalsystem from ordinary political change. Federalism is a system of governmentin which there are two tiers of government over the same territory, federaland state, which are intended to a great extent to be independent of eachother and of equal stature. As the two levels of government are independentof each other, a federal system necessarily involves many normal politicalprocesses at two distinct levels, the federal and the State, rather than onepolitical process, as in a unitary system. Therefore, it is impractical to leavefederal issues to be determined by normal political processes. Each of thepolitical units which make up the federation has its own political processesand may come up with different answers on those issues. It is impossible toprefer the answers of one of the political units or of one of the levels ofgovernment to the answers of the other without destroying the federation.To prefer the answers of the central government would, in effect, allow itto subordinate the States, transforming the system into a unitary system. Toprefer the answers of the States would allow them to subordinate the centralgovernment, transforming the system into a confederacy, or to dissolve thefederation entirely, each State becoming an independent country. Therefore,regardless of the degree to which politicians are trusted, federal systemsrequire special political processes, involving both the Federal and Stategovernments or the people, or both, to resolve federal issues. A simple wayof establishing such special processes is to entrench the federal system in awritten constitution, requiring special procedures to change it.

Besides, the argument from mistrust cannot be accepted until we havedetermined the type of federalism which we have. Allowing individuals toenforce the federal balance of power is not a method of protecting a federalsystem from change which is neutral between different types of federalism.It involves a choice of one type of federalism, one in which individuals canenforce the limits on government power, rather than others. That choice,which has fundamental implications for our whole system of government,should be determined by an analysis. of the Constitution rather than byattitudes towards politicians. Before we can determine whether individualsought to be allowed to enforce the limits on Commonwealth power, we mustdecide whether our system of federalism gives them an interest in the federalstructure.

There are two interests which it is arguable that individuals have in thefederal structure. First, individuals may have an interest in having somedecisions made centrally and others made locally. That interest can besupported in two different ways. The first argues that State decisions will inmany cases be inherently different in their consequences from decisions made


centrally, simply because the States do not have jurisdiction over the wholeof Australia, and claims that individuals are entitled to the benefits of thosedifferent consequences. The second argument appeals not to inherentdifferences, in the consequences of Commonwealth and State decisions butto the fact that often there will be policy differences between theCommonwealth and State governments. It claims that those who prefer Stategovernment policies to those of the Commonwealth are entitled to have thosepolicies implemented in areas which are outside the scope of Commonwealthpowers. Accordingly, to ensure that they do in fact receive the benefit ofState government policies in these areas, they ought to be allowed to challengeCommonwealth legislation which falls outside the scope of its powers.

To return to the first argument, it may be accepted that the fact that eachState has control over only a limited part of the territory of Australia limitsits ability to legislate effectively in many areas. Therefore, matters left to theStates are likely to be less effectively controlled than matters dealt with bythe Commonwealth. To that extent there may be differences in theconsequences of Commonwealth as against State control. Are individualsentitled to the benefit of these differences? If they are, allowing them toenforce that entitlement will have the effect of reducing the control whichthe governments of Australia, taken as a whole, can exercise over some areasof national life, and hence of increasing the freedom of the individual. Inother words, this argument amounts to a claim that individuals ought to beallowed standing, not to protect the federal structure, but to protect the libertywhich that federal structure gives to them. I shall deal with the argumentsin favour of allowing individuals to enforce the limits on Commonwealthpower as a means of protecting their liberty below when I consider the claimthat Australian federalism is, at least in part, a guarantee of individual liberty.

Before considering that argument, it is necessary ·to deal with the otherargument mentioned above, the argument that individuals have a right tohave some decisions made by the States rather than centrally because Stategovernments may be of a different political persuasion and therefore maychoose different policies from those of the federal government. It is difficultto see how this argument justifies allowing individuals to enforce the limitson Commonwealth powers. Allowing the individual to challenge the validity.of Commonwealth legislation does not provide any protection for the policymaking power of a State. Instead, it limits that power. It limits it by rulingout one option otherwise open to a State; the option of acquiescing in theCommonwealth's exercise of power. Therefore the argument must be rejected.It enables the individual to strike at the very power which it was designedto protect; the policy making power of the States. For if the States are ableto challenge Commonwealth legislation but decline to do so, and theindividual is allowed to challenge, he is also challenging a decision of theState - the decision not to sue. In other words, while claiming to act indefence of the States' policy-making powers, he may in fact be inviting thecourt to overrule a State policy decision. The best way of protecting theindividual's right to have certain policy decisions made by the State ratherthan by the Commonwealth is to respect a State's decisions, whether theybe to pursue its own policies or to acquiesce in Commonwealth control.


(2) Federalism as a means of protecting basic rights

Although, in my opinion, individuals have no interest in federalism or inthe distribution of powers between the Commonwealth and the States, it isarguable that the federal system does protect fundamental individual rights,eg, a general right to liberty. Governments and institutions of governmenthave often been established in order to protect individual interests which wereconsidered as basic. For example, the Americans adopted the doctrine ofseparation of powers in order to protect the people from tyranny and arbitrarygovernment. Where government has been" structured in a way which protectsbasic rights, individuals may have an interest in maintaining that structure,not as an end in itself, but as a means of preserving the right which thestructure was designed to guarantee. In some cases, individuals ought to beable to bring legal actions to prevent unauthorised attempts to interfere withthese structures in ways which could weaken the protection the structuresprovide for their rights.

These considerations suggest a justification for allowing individuals toenforce the limits on the powers of the Commonwealth government. If theAustralian federal system was established, amongst other reasons, to protectfundamental individual rights, it may be that individuals ought to be ableto enforce the limits on Commonwealth powers, not because of any interestthey have in the federal balance itself, but to protect the rights which thefederal balance was designed to guarantee. It is arguable that our federalismguarantees two basic rights; the right to freedom, mentioned above and theright to participate in government.

Ultimately, I do not think that the argument that individuals ought to beable to enforce the limits on Commonwealth power in order to protect a rightto liberty or a right to participate in government ought to be accepted. Oursystem of government, looked at as a whole, does not attach sufficientimportance to these rights to justify using them as the basis of a theory offederalism.

Federalism can be used to defend liberty because the fact that federalsystems divide power between central and local authorities makes it moredifficult for governments to implement comprehensive and effective controlsover individuals. It may be that insome federal systems individuals oughtto be allowed to enforce the federal balance as a means of protecting theliberty which the system grants to them. However, in my opinion, Australianfederalism was not intended to be a guarantee of liberty. Instead, it wasdesigned to guarantee a degree of autonomy to regions,. which, prior toFederation, were self-governing. Any interest in individual liberty which itcreates is not sufficiently strong to justify allowing individuals the rights toenforce it by raising federal issues in the courts.

I suggest that our federal system was not designed to protect liberty becauseour system of government was based on responsible government as well asfederalism. OUf commitment to responsible government is inconsistent withthe notion that our federation was established to guarantee liberty. Federalismprotects liberty by distributing power among a number of sources, makinggovernment control difficult. On the other hand, responsible governmentconcentrates rather than limits power by placing control of the executive in


the hands of the majority party within the legislature. The effect of this systemis to allow a small number of men effectively to decide and control policy.As power is centralised, decisive and radical government action is possible.If we acc~pt that Australian federalism protects liberty, we are faced witha clash between two conflicting principles; a principle of federalism, whichis based on the idea that the best form of government is one in which poweris distributed and therefore limited, guaranteeing a greater degree of individualaction, and a principle of responsible government which concentrates politicalpower in the hands of the people's elected representatives in the belief thatfair government requires that all persons and interests be subject, in principle,to the possibility of government control. In our system, principles ofresponsible government ought to prevail over the view, which is not anecessary part of federalism, that federalism is designed to be a guaranteeof liberty. It is the system of responsible government which captures thepublic's imagination and dominates our political culture. The Prime Ministeris rightly considered to be the head of the government and the governmentis expected to use its power to solve most, if not all, social problems. In ourpolitical culture, no great weight is given to the importance of distributingand limiting political power in order to protect liberty. The seven guarantorsof our system of federalism by which power is distributed, that is the judgesof the High Court, rarely enter into the popular political arena. Whenconsidered, if at all, they are seen as technicians administering a rather remoteand technical law, rather than as the guarantors of a system in which politicalpower is limited in order to guarantee liberty.

Besides, even if our federal system was designed to be a guarantee of liberty,the present method of allowing individuals to protect that liberty by enforcingthe limits on Commonwealth powers produces arbitrary results. The powerwhich it gives to some' individuals to use the Constitution to protect theirfreedom does not depend upon the justice of their case, or upon the extentto which their rights have been invaded. In deciding whether an individualis entitled to have his freedom protected, no overt attempt is made to balancethe degree of interference with his liberty against the benefit which thelegislation confers on the public at large. The issue is not decided by referenceto these or any other issues of substance, but by considering whether thelegislation which authorised the invasion of liberty in question falls outsidethe powers given to the Commonwealth eighty years ago when ourConstitution was drafted. As a result, gross violations of freedom may beupheld, while trivial ones may be struck down.

As a system of using federalism to protect freedom does not systematicallyprotect liberty and clashes with responsible government, we should take itout of our political system by refusing to allow individuals to raise issuesabout the scope of Commonwealth powers. If we do wish to limit the powersof government over the individual, we should do so by means of a bill ofrights. A bill of rights has the advantage that it protects freedoms which wehave decided are fundamental, rather than the freedom to perform thoseactions which the States are unable to regulate effectively and which theCommonwealth cannot regulate at all.

Besides, the federal provisions of our Constitution will continue to provide


some defence against arbitrary government even if we do prevent individualslitigating federal issues. The distribution of power will remain and will bemaintained by governments checking and balancing each other. When a Statedecides to challenge Commonwealth legislation in the courts, it is ensuringa distribution of power which limits government power to a certain extent.However, by leaving the decision to ·challenge legislation to Stategovernments, we are ensuring that the decision is made by the responsiblerepresentatives of the people, rather than by an individual seeking to protectonly his private interests. That will tend to ensure that constitutionalchallenges raise real issues of principle or policy and deal with major invasionsof State prerogatives, reducing the tendency to produce arbitrary'results. Itis also more consistent with the basic principles of responsible governmentbecause it does not operate to allow individuals to protect their privateinterests from control by Parliament.

It is now necessary to consider whether the federal system protects a rightto participate in government and whether that right is sufficient to giveindividuals a right to enforce the limits on Commonwealth power. I suggestthat our system of government gives even less weight to the right to participatethan it does to the principle of liberty. Supporters of the right to participateargue that a democracy is a society in which people not only' choose thegovernment, but are able to participate in government themselves. I7 Theprinciple of participation provides a justification for federalisrn. In general,the nation state is too large to allow widespread participation in government.Breaking it up into smaller units by establishing a federation enables a greaterdegree of participation. If our federal system exists to guarantee participationit may be that the right to participate gives individuals a sufficient interestin the federal balance to justify allowing them to enforce it in the courts.In particular, individuals may have an interest in resisting the expansion ofCommonwealth power, because every expansion of federal power limits thepowers of the States, and hence reduces the individual's ability to participatein government.

Although the principle of participation is attractive and can be used tojustify federalism, it carries little weight in the Australian system. Historyand existing practice suggests that we, as a community, are not stronglycommitted to the principle of participation. Local government is weak andweakly supported. IS The State governments are based on a representativesystem rather than on one designed to encourage participation. In fact, theonly reason why it is easier to participate at the State rather than at the federallevel is that the States are smaller.

These considerations lead into my second point. Federalism, Australianfederalism in particular, is more easily justified as a means of granting a degreeof independence and autonomy to local communities, which, for historicalreasons, viewed themselves as distinct from each other, than as a means of

17 Carole Pateman Participation and Democratic Theory (1970), M fagence CitizenParticipation in Planning (1977) Ch 1"The Political Philosophy of Democracy and Participation"pp 20-49.

18 M A Jones, Local Government and the People: Challenges for the Eighties (1981), Ch 12"Disillusionment with Local Democracy" especially pp 204-212.


protecting fundamental individual interests including the right to participatein government. What keeps Australian federalism alive is a combination ofState rights sentiment and the idea that Australia ought to be united, ie, theidea that the States are and ought to remain separate and distinct communitieswithin the one larger national community. The doctrine that federalism isnecessary to protect individual interests has little vitality within Australia.

The way in which we practice federalism ought to reflect the reasons behindour commitment to it. In other words, the way in which we run our federationought to recognize that our federalism is designed to give us a nationalgovernment while maintaining a degree of independence and autonomy forthe States rather than to protect certain fundamental rights. Applied tojudicial review, these principles suggest that only the State governments oughtto be able to bring questions about the scope of Commonwealth powers beforethe High Court. The ability of the individual to influence the federal balanceof power ought to be the same as his ability to influence any other policyissue. As individuals have no fundamental interest in the matter, they shouldnot be allowed standing to raise the issues themselves. Instead, an individualwho wishes to have such an issue litigated ought to have to persuade a State,acting in defence of its own interests, to bring the action just as he mustpersuade the government to act if he wants to have any other of his policypreferences implemented.

Limiting the right to raise issues about the scope of Commonwealth powerto the States not only reflects the rationale behind our federal system betterthan does allowing individuals to raise these issues, but is also more consistentwith the system of responsible government. The orthodox approach to theinterpretation of the limits on federal power makes no attempt to reconcilefederalism with· the principles of responsible government. In the next section,I shall consider the extent to which limiting standing to raise questions aboutthe scope of Commonwealth powers to the States allows such a reconciliation.

C Enforcing the Limits on Commonwealth Powers andResponsible Government

Responsible government is a basic principle of our system of government.However, there is a clash between the principles on which responsiblegovernment is based and the theory of the Constitution which underlies theorthodox approach to enforcing the limits on Commonwealth powers. AsI have explained in Part I, orthodox constitutional theory views theConstitution as defining the powers of the government over the people. Theconception of federalism to which it leads, in which individuals are able toenforce the federal balance, differs from responsible government in itsconception both of the nature of the responsibilities of the legislature andof the source of the government's authority. Both see the people as theultimate source of political authority, and government as deriving its authorityfrom the people. However, they differ in their view of the way in which thegovernment is granted its authority. The prevailing view of the Constitutiontreats the governments of the federation as gaining their authority from awritten constitution vv'hich is regarded as the ultimate expression of the


popular will. 19 The scope of the authority granted is limited by the termsof the Constitution in order to enable a number of governments to coexistwithout irresolvible conflict. A written constitution of this type, limiting thepowers of government, may be viewed as a single definitive grant of authorityby the people to the government. It defines the government's authority untilit is altered. Interpreted in this way, s 51 may be seen. as limiting theCommonwealth Parliament's authority to the topics listed in the section.

On the other hand, responsible government, as practised in the UnitedKingdom, views the government as deriving its authority from the people,not by means of one definitive grant, but by means of periodic generalelections to Parliament. In other words, in this system general elections notonly determine the membership of Parliament but renew its authority. Aftereach general election, the government is derived from that political party orgroup of parties which has a majority in the lower house, the House ofCommons. The election confers a grant of authority or mandate upon thatgovernment to govern in the national interest. 20 Unlike the grants in awritten constitution, that grant of authority is not confined to particulartopics, but traditionally has been regarded as of legally unlimited scope. 21

The fact that in the British system, the authority of Parliament is renewedat general elections rather than conferred by a constitution can be used toexplain the British doctrine of Parliamentary sovereignty. In the British system, Parliament is sovereign because it directly embodies the popular will.Parliament represents the people and derives its powers directly from thepeople, rather than from a constitutional document or even from a set ofcustomary rules. Because it receives its power directly from the people, itis sovereign and above the law. Its sovereignty derives not from legal rules,but from the political theory that it represents the people and embodies theirwill.

The theory of responsible government seeks to enable the people to exercisecontrol over the government by political means. Everyone is entitled to put

19 This theory of the Constitution, I suggest, lies behind the views of those who regard theConstitution as deriving its validity from enactment by the Imperial Parliament as well as theviews of those who base its validity on adoption by the people. When the British Parliamentenacted the Constitution, it was able to validate it because it was able to represent the peopleof Australia as well as because it was the supreme legislative authority for the Empire. Itsimprimature was needed because it was felt that the Constitution affected the interests of thewhole of the Empire, as well as those of Australia. It is worthy of note that the only changesrequired by that Parliament were changes designed to protect Imperial interests especially changesto ensure that the Privy Council remained as the ultimate court of appeal; see J A La NauzeThe Making of the Australian Constitution (1972) Ch 16 "Clause 74, 1900, London".

20 For an analysis of the mandate theory see A N Birch op cit note 15 above, 97-100.21 Each Parliament is sovereign and may undo the work of its predecessors; see Hood Phillips

Constitutional and Administrative Law (6th ed 1978) pp 50-88; Wade and Phillips ConstitutionalLaw (9th ed, edited by A W Bradley). Doubts have been expressed about the absolute natureof the doctrine that the British Parliament cannot bind its successors. In particular it has beenargued that Parliament may be able to bind itself as to the procedures it will use in the future;see R F V Heuston "Sovereignty" in A G Guest (ed) Oxford Essays in Jurisprudence (1961);de Smith Constitutional and Administrative Law (2nd ed 1973) at 88-92; 6 Marshall ConstitutionalTheory (1971) at 53; J W Gough Fundamental Law in English Constitutional History (revisededition 1971) at 212; and Dixon "The Common Law as an Ultimate Constitutional Foundation"(1957) 31 ALJ 240, 244; and Winterton "The British Grundnorm: Parliamentary SupremacyRe-Examined" (1976) 92 LQR 591.


his point of view and to seek to have that viewpoint adopted by puttingpressure on governments through, for example, political parties, pressuregroups, letters to members of Parliament etc. Finally, if the governmentrejects their views, everyone is entitled to vote against it at the next elections.In theory, the policies which are arrived at by the government at the· endof this process are considered to reflect the popular will, however, imperfectly,because the people have had opportunities to influence the result.

Because they are based on different theories about the origins and natureof Parliament's authority, it is impossible to marry responsible governmentto the doctrine that the Constitution limits the powers of Parliament overthe people. The doctrine that Parliament derives essentially unlimitedauthority from the people at each election and therefore has legally unlimitedpowers is an essential part of the theory of responsible government and cannotbe separated from it successfully.

In a system of responsible government, Parliament must have an essentiallyunlimited authority to determine the national interest because it is responsiblefor controlling the executive government. As the executive government ispresumed to govern in the national interest, to have any moral right to controlthe executive, Parliament needs to be able to claim that it is also responsiblefor the national interest. If it does not have that responsibility, but itsresponsibilities are limited to defined topics, it will only be able to controlthe executive with respect to matters related to those topics.

The fact that the system of responsible government requires that thelegislature have a general responsibility for the national interest helped shapemany of the distinctive doctrines of British constitutional theory, such asthe doctrine of parliamentary sovereignty and the doctrine that members ofParliament are not del~gates of their constituents but representatives of thewhole people. The major theoretical objection to Parliament's claim that itwas responsible for the national interest focused on the constitution ofParliament, and in particular, on the way in which the House of Commonswas elected. Members of the House of Commons were elected by localcommunities. 22 If they were merely delegates of those communities,representing purely local or sectional interests, they could have no claim todetermine the national interest and hence to control the executive. To meet

,this objection, the Whig Theory of Representation was developed.23

According to this theory, each member of Parliament represented and wasresponsible to the whole of the people, not just the constituents who electedhim. 24 On this theory, it was more important that Parliament represent the

22 This is equally true both of the old, unreformed House of Commons, which consisted oftwo knights from each shire and two citizens from each borough and of the modern Commons,which is elected from constituencies which are essentially local areas united by geography andother ties such as common interest.

2~ Birch op cit note 15 above considers this theory in more detail at pp 37-40.24 The classic exposition of this theory is that of Edmund Burke, in his "Speech to the

Electors of Bristol" op cit note 15 vol 2 pp 11-14. In that speech he dealt with some of theimplications of the Whig Theory of Representation, especially the idea that as each memberwas responsible to the whole people, not just his constituents, his constituents were not entitledto instruct him as to how he should vote. Instead, he was elected to make his own judgmentof what the national interest required on all of the issues which came before him.


people as a whole. than that each particular group or segment of thepopulation be represented.25

The Whig Theory of Representation had profound implications for otheraspects of the British Constitution. These implications flowed from thepeculiar status of parliamentarians as representatives, not delegates.Representatives stand in the shoes of the people they represent and are ableto exercise all of the powers which those people possess. Therefore, they arenot subject to instructions in the way that agents or delegates are. Instead,they are chosen to exercise their own skill and judgment on every point whichcomes before them.

The idea that Parliament consists of representatives who have the sameauthority as the people they represent and are not subject to instructions gavea new meaning to the doctrine of Parliamentary sovereignty. As early as thesixteenth century, it was recognized that Parliament was sovereign in the sensethat it had the power to change any law. However, it was not seen as sovereignin the political sense; ie as the source of all legitimate authority within thepolitical and legal system.26 The Whig Theory suggested that Parliament wassovereign in the political sense because the Whig Theory based Parliament'sclaim to determine the national interest on the fact that Parliamentrepresented the nation. As it did not consist of agents or delegates of thenation, but of representatives, it possessed all of the power and authorityof the nation. Accordingly, it was above the law and was the source of law,able to make or unmake the constitution as it saw fit. 27

It can be seen that the notions of responsible government, parliamentarysovereignty and the Whig Theory of Representation fit together as a whole.The Whig Theory of Representation is the foundation on which the othersare built, because, without it, Parliament could not claim to represent orstand in the place of the nation or to exercise authority over the executivein the national interest.

Limiting the powers of Parliament to defined topics appears to be inconsistent with all these doctrines. It is difficult to reconcile with the Whig Theoryof Representation because limiting the powers of Parliament to defined topicsappears to convert its members into agents with authority to act for theirprincipals on some topics but not on others. The members of a Parliamentof defined powers can hardly be said to be representatives not subject toinstruction but clothed with all of the authority of the people whom they

25 This led to the theory of virtual representation used to oppose reform before 1830; seeBirch op cit note 15 above pp 51-52.

26 F W Mait~and The Constitutional History oj England (1931) 251-275, especially 251-258and 267-275; and D L Keir The Constitutional History oj Modern Britain since 1485 (9th ed1969) Ch IV "The Decline and Fall of Conciliar Government, 1603-1660".

27 On this view, the Whig Theory of Representation combined with the notion of thesovereign Parliament is a radical, almost revolutionary theory in which each Parliament is aconstituent assembly, entrusted by the people with unlimited power. As with all things British,its radicalism is masked by conservatism, so that the people are represented in their variousestates, King, Lords and Commons. However, with the ascendency of the Commons, the radicalpopulist elements have prevailed.


represent if their powers are limited to certain topics and defined by meansof an initial grant of power contained in a Constitution.

If the members of Parliament are not true representatives, but are delegateswhose authority does not extend beyond a defined list of topics, it is difficultto see how they can claim to be the guardians of the national interest. Instead,they are responsible only for those subject matters over which they have beengranted power. That view of the responsibilitiy of the legislators is too limitedto enable them to perform their task in a system of responsible government.In the system of responsible government, the government arises from thelegislature and is responsible to it in every facet of its activities. If it is assumedthat government ought to 'govern in the national interest, the legislature needsauthority over that interest. If the legislature's authority and responsibilityis limited to particular subject matters, it will have neither the authority tocontrol nor the responsibility for controlling all of the actions of government.Therefore, it appears that a national legislature of limited scope is not practicalin a system such as ours but only in systems like that of the USA where thelegislature is separate from the executive and is not responsible for theexecutive's activities.

In a system such as ours, where the government is responsible to Parliament, Parliament is forced to adopt a responsibility for the national interestin order to fulfil its role of controlling the government. In assuming thatresponsibility, it is forced to disregard the limits on its authority which theexistence of absolute constitutional limits on its powers would suggest exist.The principles of responsible government commit it to accepting that itsresponsibilities extend beyond its legislative powers, so that although itslegislative powers are limited to particular subject matters, its responsibilitiesextend to the national interest. The problem with this view is that it deniesParliament the powers which it may need to carry out its responsibilities andcontinually requires Parliament to circumvent the limits on its powers. 28

Although this interpretation of the federal Parliament's responsibilities isunsatisfactory, the only other alternative is unworkable. That alternative isto limit the reponsibilities of the national government to those topics overwhich the legislature·has been granted responsibility. Although this alternativehas been suggested,29 and is accepted by some commentators,30 it does notsolve the conflict of principles. Instead, it exacerbates it, by suggesting that

28 The Labor Party in particular has traditionally regarded the Constitution as a barrier tobe overCOlne before its policies can be implemented; see eg E G Whitlam "The Constitutionversus Labor" in Labor and the Constitution (Victorian Fabian Society Pamphlet 11 ,Melbourne,1965) and "The Labour Government and the Constitution" in G 1 Evans Labor and theConstitution 1972-1975 (1975) 305-330

29 See the Pharmaceutical Benefits Case (A-G (Vic) v Commonwealth) (1946) 71 CLR 237at 265-266, 271-272 and 281-282 per Starke, Dixon and Williams 11 respectively; and The AAPCase (Victoria v Commonwealth) (1975) 134 CLR 338,356,359-363,373-375 per Barwick C1,Gibbs and Mason 11 respectively.

30 L Zines, The High Court and the Constitution (1981) at 212-213; P Lane The AustralianFederal System (2nd ed 1979) at 128-129; G Winterton Parliament, the Executive and theGovernor-General (1983); H E Renfree The Executive Power of the Commonwealth ofAustralia(1984) 419-420 and 430-432.


the executive which, under the system of responsible government, is alsoelected to pursue the national interest, has no constitutional authority topursue that interest but only a limited authority to act on certain matters.

Besides, the view that the executive only has limited powers createsproblems of interpretation which are almost impossible to solve.

If it is accepted that the Commonwealth executive has limited powers thepowers of the executive cannot be limited to those subject matters on whichthe Parliament has been given power to legislate because· it is generallyrecognized that Parliament may use its powers to pursue purposes unrelatedto those powers. 31 If the executive's responsibilities are to be the same asthose of the Parliament, it must also have the power to pursue those purposes.However, if the executive pursues purposes unrelated to the heads of powergranted to the legislature, it will usually be impossible to determine whetherits acts can be related to a head of power or not. As it enacts no laws andhence does not state the connection between its purposes and the heads o'fpower on which it is relying, the Court can only examine its acts themselvesto determine whether they are in power. These acts will, of course, revealthe executive's purposes, but, unlike a well drafted Act of Parliament, willnot reveal the head of power on which it is relying. Therefore, to discoverwhether the executive action is valid, the Court needs to know whether thelegislature would have power to have authorised that act. It is only possibleto answer that question if one waits for the legislature to act by passinglegislation authorising the executive's action and testing the legislation'svalidity or if one has defined the total scope of Commonwealth legislativepower. The first approach is unjustifiable, because as long as the executive'sactions are within the scope of its prerogative powers and do not amountto an unauthorised invasion of the rights of the subject, it can act withoutenabling legislation. 32 It would be wrong to depart from that principle andrequire legislative authorisation for all executive actions which are notobviously related to one of the Commonwealth's powers simply in order tomake constitutional interpretation easier. The second approach, whichrequires the High Court to determine the total scope of Commonwealthlegislative power, is likely to prove impossible. Besides, it commits one tothe view that the Constitution reserves powers to the States, because it isimpossible to arrive at a view of the total scope of Commonwealth power

31 Fairfax v Federal Commissioner of Taxation (1965) 114 CLR 1; Murphyores Inc Pty Ltdv Commonwealth (1976) 136 CLR 1; see also the Judgment of Dixon J in Melbourne Corporationv The Commonwealth (1947) 74 CLR 31,79-80.

32 Winterton op cit describes at p 48, the scope of the federal executive's power to act withoutLegislative authorisation, thus:

... with the exception of the power to "execute" the Constitution, the "depth" of the executivepower of the Commonwealth is defined by the prerogative or common law powers of theCrown; in other words, '" the executive may act without statutory authority only to theextent of the prerogative powers of the Crown.

The executive prerogatives, under which the Monarch could act included the power to executetreaties, declare war, make peace, coin money, incorporate bodies by royal charter, conferhonours, control the armed forces, hold enquiries and conclude contracts: see G Winterton,pp 48-49.


without also determining the scope of the powers left to the States.33 Theview that the Constitution reserves powers to the States has consistently beentreated as unfounded since it was first rejected in 1920 in the EngineersCase. 34

To sum up, it has not been possible to reconcile the principles of responsiblegovernment with the notion that the Parliament's powers over the peopleare limited to defined topics. As a result, legally, the principle that thelegislature's powers are limited and derived from the Constitition prevails, ,while politically, the predominant principles are those of responsiblegovernment, in which the legislature is assumed to have authority vested init by the people to determine the national interest. The conflict between thetwo principles may become open if a government is elected on the expectationthat it will implement policies which it is conceded are prima facie inconsistentwith the terms of the Constitution. In such a situation the government islikely to act on what it believes to be its responsibilities to the electorate;ie, it will seek to implement the policies on which it was elected regardlessof the constitutional obstacles. There is no convention or usage that a politicalparty does not offer prima facie unconstitutional policies to the electorate.Such policies may become the subject of bitter controversy, especially if theyare regarded as invading State rights, but the mere fact that a policy invadesan area traditionally reserved for the States is not seen as a reason in itselffor dropping the policy. The ALP in particular is unlikely to be deterredfrom offering popular policies simply because they involve an interferencewith State rights. 35 Similarly, there is no convention or usage that agovernment should refrain from seeking to implement policies which it haspresented to the electorate and which are prima facie unconstitutional.Instead, a government is likely to treat its election as giving it the authorityto find ways to avoid the constitutional obstacles to its authority. Thegovernment's position is no weaker if it has no mandate for its policies. Itmay be criticised for seeking to implement policies other than those whichit put to the electorate, but, that criticism aside, its responsibility is to governin the national interest. To pursue the national interest, it is expected to

33 In order to be able to define the total scope of Commonwealth powers, it is necessary tohave some preconceived idea as to where those powers end and State reserved powers begin.If there is no preconceived boundary, but only a test such as the requirement that to be valid,a law must be substantially connected to the head of power, it will be impossible to determinethe scope of the power with any accuracy. To do so would require the court to make a judgmentabout what would be the limit case of a connection between the law and the head of power.Without actual legislation to consider such a judgment would be essentially arbitrary.

34 The principles of the Engineers Case (1920) 28 CLR 129 that each Commonwealth poweris to be interpreted broadly and the rules of interpretation which have been developed since,especially the rule that a head of power may be used to achieve purposes unrelated to that headof power have the affect that, to a certain extent, although Parliaments' powers are limited toparticular topics, it can indirectly assume responsibility over many matters which are, on theirface, unrelated to those topics. To that extent, the ~ngineers Case may be regarded as an attemptto marry responsible government to·a parliament of limited powers. Under the old reserve powersdoctrine, such a marriage was impossible, because Parliament's responsibilities were limited tothe scope of its powers. It could not go beyond those powers to exercise indirect controls becauseto do so was to invade the powers reserved for the States; see R v Barger (1908) 6 CLR 41.

35 Supra n 28.


overcome constitutional obstacles, just as it is expected to overcome otherobstacles such as opposition from vested interests. Both opposition fromvested interests and constitutional obstacles may force a government tomodify its policies, but its overriding duty to the electorate to govern in thenational interest requires that it attempt to overcome the difficulties ratherthan abandon its aims.

To sum up, responsible government requires that Parliament haveresponsibility for the national interest. No other view of the scope of itsresponsibilities allows it sufficient authority to control the national executivewhich is under a duty to govern in the national interest. Limiting the powersof Parliament to defined topics is inconsistent with responsible governmentbecause it either denies Parliament the responsibility for the national interestwhich it requires to control the executive or denies it powers commensuratewith the scope of its responsibilities.

If responsible government requires that Parliament have responsibility forthe national interest, it may appear impossible to reconcile federalism andresponsible government at all. For the interests which the States protect ina federal system are local or regional, and hence sectional, rather than nationalinterests. Entrenching the position of the States in the Constitution gives adegree of protection to these interests which may enable them to prevail overthe national interest. However, to govern fully in the national interest, it mayseem that the central government needs power to deal effectively with thelocal sectional interests which are protected by the entrenched position ofthe States. Of course, the central government cannot be allowed suchunlimited power because that power would enable it to destroy the Statesand the federal system.

Despite these difficulties, it is possible to work out a compromise betweenthe claims of federalism and the claims of responsible government. Thecompromise must recognize both that the federal Parliament is responsiblefor the national interest and is not bound to defer to the sectional interestsof the States and that the fact of a federation shows that the interests ofthe States are to be given a degree of protection which is not accorded bythe Constitution to other sectional interests.

Given that the States are entitled to constitutional protection, and thatunder the prevailing system of responsible government, the federal Parliamentis not bound to defer to or even to consider the sectional interests of theStates, the limits on Commonwealth power are best interpreted as devicesdesigned to protect the States from a government and a Parliament whichhas no obligation to respect or to defer to the States' interests. The best wayof enabling the States to use this device to protect their interests is to allowthem standing to enforce the limits on Commonwealth powers in the courts.

To sum up the fact that our system is based on respon~iblegovernmentas well as federalism suggests three principles which should govern theinterpretation of the limits on Commonwealth powers. First, the federalParliament and government are elected to legislate and to govern in thenational interest. At each election they receive a mandate from the peopleto govern in this way. Second, because it has authority to govern in thenational interest, the federal government is under no obligation to respect


the interests of the States, which are sectional, rather than national interests.Third, because the federal government is free to ignore the interests of theStates, the limits on Commonwealth power ought to be interpreted as a devicedesigned to enable the States to protect themselves from the Commonwealth.

These three principles can be used to develop a theory of judicial reviewwhich is coherent and consistent with my argument that standing to enforcethe limits on Commonwealth powers should be granted to the States anddenied to individuals. The principles of responsible government, outlinedabove, entail that individuals are bound by the authority to legislate in thenational interest which they confer on the federal Parliament at each election.Therefore, they ought to be bound by legislation of that Parliament whichadversely affects their interests, whether or not that legislation can be relatedto one of the heads of power granted to that Parliament by the Constitution.In other words, the people should not be able to assert principles offederalismin order to challenge the Commonwealth government's decisions. The positionof the States is different. They are not a party to general elections for thefederal Parliament. Therefore, unlike the people, they do not confer anyauthority on that Parliament at those elections and hence are not bound byany such authority conferred. However, they were parties to the conferralof power on the Commonwealth Parliament by the Constitution in 1900.Therefore, they are bound by the powers conferred at that time. Accordingly,they should not be able to challenge any Commonwealth action which fallswithin the scope of those granted powers. However, the powers which weregranted to the Commonwealth by the Constitution were limited in order toprotect the position of the States. The States ought to be free, if they electto do so, to have the courts enforce the limits to the authority of theCommonwealth which were adopted at that time, especially as those limitswere adopted for their protection.

To sum up, the Constitution's adoption of federalism and responsiblegovernment supports the conclusion that the States, rather than individualsare the proper parties to enforce the limits on Commonwealth legislativepower.

PART III: A NEW MODEL FOR AUSTRALIAN FEDERALISM

It ·is necessary to consider how Australian federalism should work, inparticular, how the principles which I have suggested ought to be appliedin practice. First, it is necessary to restate these principles. I have suggestedthat, as against the people, Commonwealth power ought to be regarded asunlimited except by provisions such as s 116 and s 92, which are designedto guarantee basic individual rights. However, the States ought to be ableto enforce the other limits on Commonwealth power contained in provisionssuch as s 51.

These principles require us to reconcile the fact that a Commonwealth lawwhich falls outside the scope of the Commonwealth's powers may be bindingupon individuals yet open to challenge by a State. The requirement that lawsbe binding yet open to challenge can only be met if laws which fall outsidepower are regarded as voidable, rather than void, as at present. If they are -


treated as void, they have no legal effect and bind no-one whether individualor State. However, if they are voidable, they will bind everyone, includingthe States, until challenged by a party with standing to do so, in this casea State.

A successful challenge by a State to a Commonwealth law could lead toone of two results. It could lead to the law being voided either throughoutAustralia, except the territories, or only in the territory of the State whichchallenged it. In my opinion, when a State challenges a law, that law shouldonly be voided within its territory and should remain valid throughout therest of Australia. That is the better view for three reasons.

First, I have argued that the standing of a State to challenge Commonwealth law arises from the fact that it has a right to maintain the federalbalance. There is no reason why a State should not be able to waive thatright. If a Commonwealth law could be set aside throughout Australia atthe suit of one State, that State would be able to deny the other States theoption of waiving their rights and allowing the Commonwealth law to operatewithin their territory. Allowing the States to waive their rights increases theoptions ·open to them by allowing them to acquiesce in Commonwealthlegislation which falls outside the scope of its granted powers. By increasingthe options open to the States, it expands the scope of their powers.

Second, a State's political responsibilities do not extend beyond its borders.Each State has a responsibility for its relations with the federal government,including the balance of legislative power which exists between it and thatgovernment. However, it has no responsibility for the relations between thefederal government and the other States. Nor does it have any interest incontrolling the actions of the federal government which occur outside itsborders. The fact that a State's responsibilities do not extend beyond. itsborders suggests that a State should not be allowed the right to challengethe application of a Commonwealth law to another State. Refusing to allowa State to challenge the applicability of a Commonwealth law to those partsof Australia which lie outside the States' borders does more than ensure thatthe State does not attempt to control events occurring outside its jurisdiction.It also protects the normal system of political accountability, ensuring thatState governments take political responsibility for their constitutionaldecisions. Vesting a State only with the responsibility for deciding whetherto challenge Commonwealth law applying to its territory will ensure that Stategovernments can be held politically accountable for their constitutionaldecisions, because the decisions will only affect the people to whom thegovernment is responsible, the people of the State in question. However, toallow a State to challenge a Commonwealth law on behalf of the whole ofAustralia is to allow it to make political decisions for people to whom it isnot accountable, the people of other States. As it is not accountable to thecitizens of other States, a State government has no more right to take decisionson their behalf than does a private individual. In order to guarantee politicalaccountability it is necessary to ensure that each State only has the right tochallenge Commonwealth laws as they apply to its territory, rather than tothe whole of Australia.

Third, as pointed out above, the Constitution, S 51(37) allows each State


to alter the balance of power between it and the federal government byreferring matters to the federal government. This provision suggests that theConstitution envisages that the balance of power between a State and theCommonwealth is of concern only to that State and the Commonwealth.Together they can alter the constitutional balance of power between themwithout reference to the other States. Therefore, there is no good reason forallowing one State to alter the balance between the Commonwealth and theother States by giving it the power to have Commonwealth legislation setaside throughout Australia. Giving each State the power to challengeCommonwealth law, not for itself alone, but for the whole of Australia,achieves little. It simply forces a State which wishes to alter the balance ofpower between it and the Commonwealth to use the power conferred on itby s 51 (37) rather than to acquiesce in Commonwealth legislation on theparticular topic. Such a result adds to constitutional inflexibility for no goodreason. It is better to allow each State to alter the balance between itself andthe Commonwealth by acquiescence in Commonwealth laws which may falloutside the scope of the Commonwealth's defined powers.

The main argument in favour of the view that once one State successfullychallenges Commonwealth law, that law ought to be treated as invalidthroughout Australia, is based on convenience. It may appear to beinconvenient to allow Commonwealth law to apply in some States but notin others. However, the conflicts to which such a situation may give rise,ought, in principle, to be no greater than the problems caused by inconsistentState laws. In fact, there may be gains in consistency if more than one Stateadopts the Commonwealth law in question, whether or not other Statessuccessfully challenge it. Second, it may be objected that if some States allowthe Commonwealth legislation, there will be subtle pressures on the othersto come into line. However, those pressures will arise only if, once theCommonwealth law is implemented, even to a limited degree, the advantagesof uniform central control become apparent. If there are no advantages inuniformity, there is unlikely to be any pressure for it. The argument amountsto an assertion that States ought to be insulated from the political pressureswhich are likely to arise once the advantages of uniformity are made apparent.However, these pressures are simply pressures for better government and itis not clear why States should be insulated from them. Diversity is desirableonly when it is advantageous and should not be protected as if it were anend in itself.

Although States ought to be allowed to waive their right to challenge aCommonwealth law, the effects of such a waiver should not be permanent.Limits were placed on Commonwealth power in order to ensure that the Statesretained legislative power in some fields. Although the States were given powerto refer matters to the Commonwealth, the federation was designed to bepermanent, not something which could be compromised by ordinary politicaldecisions. Therefore, if a State waives its constitutional rights, the effectsof the waiver should not be permanent. The State should remain free to bringan action at any time to challenge a law of the Commonwealth in which ithas acquiesced. Failure to challenge a law is not an act but a failure to act;it would be strange if the States could lose their rights by inaction. Individuals


can, of course, lose legal rights by inaction. If legal action is not broughtwithin a specified period after the cause of action arose, it cannot be broughtat all. 36 There are very good reasons why this principle should not beapplied to the States within our constitutional system. Our constitutionalstructure is rigid and difficult to amend. Inaction is sufficient warrant forallowing· a law which could be challenged to remain valid, but it would bestrange if it altered the Constitution, which is so difficult to amend in otherways, so that the right to challenge the legislation was completely lost. Besides,if the right to sue was lost by inaction, one government would, by inaction,be able to bind its successors to a change in the scope of their powers. Thatwould be inconsistent with one of the fundamental doctrines of responsiblegovernment, the doctrine that Parliament cannot bind its successors. Withoutthat doctrine, responsible government, cannot work properly, becauseresponsible government is based on the notion that each election gives theresulting government a fresh grant of authority and that that grant ofauthority allows it to undo the work of its predecessors. Such a doctrine isnecessary to prevent a government, elected in the normal manner, and withfull powers to alter the policies ofits predecessors, making its own policiesimpossible to amend and in effect, reducing the scope of the grant of authoritywhich can be given to its successors. Doctrines which allow a parliament tobind its successors ought to be avoided.

It may seem that allowing a State to waive its rights to sue fails to providesufficient protection for the federal balance and for the States. It may bethat permitting the States to waive their rights to enforce the federal balancewill give the Commonwealth an opportunity to increase its power in wayswhich cannot effectively be reversed. Consider the following example. TheCommonwealth government may engage in a process of large scalenationalisation, even though such nationalisation is arguably outside the areaof its granted powers.· At the time of the nationalisation the States may agreeto the policy and refuse to challenge it. The effect of nationalisation maybe to increase Commonwealth power greatly. Even if later State governmentswere to challenge the Commonwealth nationalisations, they may not be ableto reverse the effects of the Commonwealth policy and the nationalizedindustries may remain under the control of the Commonwealth. Althougha successful challenge to the nationalisation legislation would effectively stopany further nationalisations, it would not have the effect of invalidating thenationalisations which had already occurred. They would remain validbecause they were carried out under a law which was valid until overruled.Once the Commonwealth controlled major industries such as the steelindustry, the fact that it would not be able to nationalise any new companiesentering those industries would not greatly reduce its. powers.

The example shows that the principles which I am advocating may allowgreat and irreversible increases in Commonwealth power. However, beforemy principles can be rejected, it must be shown that it is wrong t.o allowCommonwealth power to increase dramatically. Closer examination of theexample suggests that there is no good reason for. not allowing

36 The time limit vary for different causes of action and in different jurisdictions. They areset out in various Statutes of Limitations.


Commonwealth power to increase in the way suggested, because increasesin Commonwealth power of that nature are unlikely to damage the federation.In the example, Commonwealth power over the people is permanently andirreversibly increased. That is unwarranted only if we assume that our systemof federalism is designed to protect the individual from government, a positionwhich I rejected in Part III. The interpretation of federalism for which I amarguing allows the Commonwealth to increase radically the extent of itscontrols over private activities, including private economic activity. To returnto first principles, the federal balance is designed to protect the States. Aslong as the States remain entitled to enforce the limits on Commonwealthpower, it is doubtful that that balance is endangered by legislation of thistype because it does not touch on the States' relationship with theCommonwealth.

Legislation such as that authorising large-scale nationalisation tends tochange the balance of power between the Commonwealth and the peoplerather than between the Commonwealth and the States. From the point ofview of the people, it may seem to alter the federal balance irrevocably becauseit increased the relative importance of the Commonwealth as compared withthe States in their lives. However, that is not the correct standpoint fromwhich to view the problem. The Constitution is not designed to protect theStates by ensuring that they always remain as important as theCommonwealth in the lives of the people. It is designed to protect them byguaranteeing that they retain an area of competence. As long as they remainable to enforce the limits on Commonwealth powers, it is difficult to envisageways in which the-Commonwealth can fundamentally reduce their powers.The Constitution does not prevent the Commonwealth from acquiring morepower, as long as the States retain their powers. Even the orthodoxinterpretation of the Constitution accepts that there are no easily defined limitsto Commonwealth power. 37 In practice, the Commonwealth is able to useits power to control many areas of national life once thought to be reservedfor the States. My proposals are designed to recognize that fact of nationallife while preserving the legal competence of the States. They achieve thatresult by tailoring judicial review to the needs of the system by limiting thepower to raise federal issues to the States and allowing each State to waiveits right to sue.

Finally, it is necessary to say a little more about the effects of my proposalon the individual. It may seem that individuals would be placed in an

37 The attempt to offer a comprehensive definition of Commonwealth power and, as acorollary, of State reserve powers, ended with the Engineers' Case (1920) 28 CLR 129. Sincethat case, the High Court has not attempted to offer comprehensive definitions of the scopeof the Commonwealth's powers, but has simply required that laws be substantially connectedto the head of power. This essentially open-ended definition has allowed the Commonwealth'spowers to be expanded greatly.

Commonwealth v Tasmania (1983) 57 ALJR 450 is the latest case in which the HighCourt admittedly by a majority of 4 to 3, adhered to an essentially open-ended interpretationof the scope of Commonwealth powers although as a result the Commonwealth was ableto intervene in an area of policy traditionally reserved to the States. Other notable recentexamples include Koowarta v Bjelke-Peterson (1982) 56 ALJR 625; and, less controversiallyActors and Announcers Equity Association oj Australia v Fontana Films Pty Ltd (1982) 150CLR 169 and Fountain v Alexander (1982) 150 CLR 615.


impossible position if they were unable to raise questions about the scopeof Commonwealth powers. Faced with conflicting Commonwealth and Statelaws, it may appear that they would be unable to determine which they oughtto obey. On examination, there is no problem. Section 109 of the Constitutionlays down that Commonwealth law prevails over inconsistent State legislation.For reasons outlined above, a Commonwealth law which could be successfullychallenged ought to be valid until it is challenged, and not a complete nullity,as at present. Therefore, the individual faced with conflicting laws could obeythe Commonwealth law, secure in the knowledge that it prevails over theState law and that it is valid until successfully challenged. His position wouldbe stronger than at present, because at present he needs to know which lawis valid before he can determine which to obey.

CONCLUSION

This article .argues that we should adopt a new approach to theinterpretation of those constitutional limits which are placed on Common-.wealth power in order to protect the States. It is impossible to justify thepresent practice of allowing individuals who have a private interest at staketo enforce these limits. Such individuals do not have an interest in the limitsthemselves which is. sufficiently great to warrant enforcement. Besides,allowing them standing places considerable political power in the hands ofpolitically unaccountable individuals who are free to exercise it in ways whichignore the common good. However, although individuals should not be ableto raise these issues, it is argued that the States should retain the right todo so. Commonwealth power was limited in order to guarantee the States'autonomy and competence. If that guarantee is to be effective, the Statesneed to be able to enforce it in the courts, because they have no other wayof enforcing it. To ensure that the States remain politically accountable fortheir decisions, each State must only have the power to challengeCommonwealth legislation for itself, rather than for the whole of Australia.

If these proposals were adopted, they would require a number of changesin the way in which we think about questions about the scope of theCommonwealth's powers. First, they require that all Commonwealthlegislation, regardless of its topic, ought to be considered as valid, leavingeach State with the right to acquiesce in or challenge the legislation as it seesfit. However, each State should only be free to challenge the application ofCommonwealth legislation within its borders, and not to the rest of Australia.A State should not be bound by its decision to waive its r.ight to challengebut should be free at any later date to enforce the limits on Commonwealthpowers.

The principles which I have suggested are based on an analysis of thecontent of our Constitution and of the principles of political authority andresponsibility which underlie our system of government. No doubt in manyplaces that analysis is crude. However, it is offered as an alternative to theorthodox approach, which appears to me to be based on a priori assumptionsabout the purposes which constitutions serve, rather than on any analysisof our Constitution, in the hope that it may stimulate discussion and leadto improvements in the way in which we operate our federal system.

FEDERALISM, RESPONSIBLE GOVERNMENT AND THE … · AntillRanger and Company Pty Ltdv Commissionerfor...

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