Power Of Commonwealth Research Articles

Commonwealth Power to Improve Access, Quality, and Efficiency of Medical Care: Does section 51 (xxiiiA) of the Constitution Limit Politically Feasible Health Policy Options Today?

Legal and political battles about health policy in the immediate post-war years have cast a long shadow in Australia. The ‘civil conscription’ sub-provision in s 51(xxiiiA) (health and welfare power) of the Australian Constitution is still cited as a major barrier to developing health policy. But long after the High Court moved on from a very restrictive interpretation of Commonwealth powers, policymakers appear to be cautious about testing whether the Commonwealth has power to make laws about medical services to pursue a bold agenda about access, quality, and efficiency of medical care. In this article we will first describe the origin and phrasing of s 51(xxiiiA), the main head of power, then trace the development of the interpretation of the civil conscription sub-provision, and finally discuss whether politically realistic policy options are likely to founder on the shoals of High Court interpretation. We argue that the civil conscription limitation in s 51 (xxiiiA) in the Constitution looms larger as a policy constraint on regulation of health care by the Commonwealth government in the minds of decision-makers, and as a weapon in the hands of stakeholders, than contemporary analysis of it warrants.

Labor, the External Affairs Power and the Rights of Aborigines

The Australian Constitution gave the Commonwealth not a “treaty power” but a vague power over “external affairs,” the precise meaning of which was elusive for most of the twentieth century. From the 1930s, Labor judges and politicians such as H. V. Evatt saw its potential to extend Commonwealth power by legislating international agreements throughout Australia. The non-Labor parties rejected the idea of using the “external affairs” power to legislate in areas formerly the responsibility of the states but the federal Labor Party continued in the Evatt tradition. After significant uncertainties, the Whitlam government used the external affairs power to pass the Racial Discrimination Act 1975, the first significant human rights legislation in the country, which in turn had a profound effect on the law of the land in the country by making the second Mabo Case possible.

Higgins' Argument for Section 116 of the Constitution

The argument that led to the inclusion of Sec. 116 of the Constitution, a provision that provides a limited guarantee of religious freedom in Australia, has not been properly understood. The provision states: ‘The Commonwealth shall not make any law for establishing any religion, or for imposing any religious observance, or for prohibiting the free exercise of any religion, and no religious test shall be required as a qualification for any office or public trust under the Commonwealth.’ The clause was proposed and pursued by Henry Bournes Higgins at the Constitutional Convention of 1897-1898 at which the Constitution was drafted. The argument Higgins presented appears, on first inspection, to be rather odd. Relying on cases and events in America, the nature of which he misrepresented to the Convention, Higgins appeared to argue that the reference to ‘Almighty God’ in the constitutional preamble might give rise to a Commonwealth power to legislate in respect of religion. At first glance the argument appears to be sophistry. Indeed, the Convention’s leader, Edmund Barton, described it as ‘far-fetched’. This article argues that Higgins’ argument was not sophistry nor far-fetched. It argues that the fundamental concern underlying Higgins’ argument, which in reality had little to do with the preamble, reflects what would now be considered an orthodox approach to constitutional interpretation. Although presented in a spectacularly confused manner, the true substance of Higgins’ argument was that although the Commonwealth was not granted any express power to legislate with respect to religion, those powers that the Commonwealth was expressly granted were wide enough to authorise legislation respecting religion. The article begins by setting out the standard account of Higgins’ argument for Sec. 116 as presented by various scholars and judges. It then briefly surveys the political background to Sec. 116, which provides the context in which Higgins presented his argument. That background involves the political campaigns for and against the inclusion of a reference to ‘Almighty God’ in the constitutional preamble as well as Higgins’ broader motives in introducing a provision prohibiting laws touching religion. The article then sets out Higgins’ argument as he presented it to the Convention. Next, the article closely examines the evidence – American case law and legislation – on which Higgins based his argument. The article then examines Higgins’ thinking on two matters: what he knew about the American case law and legislation on which he based his argument and how he understood the nature of constitutional grants of legislative powers. Finally, bringing together the analysis presented so far, the article presents an alternative reading of Higgins’ argument for Sec. 116 to that presented by the standard account.

Heresy in the High Court? Federalism as a Constraint on Commonwealth Power

Williams v Commonwealth of Australia is a landmark decision of the High Court on the scope of federal executive power in s 61 of the Constitution. The decision is also important for the interpretive methodology adopted by the Court. Notably, each judge based their understanding of s 61 upon federal readings of the Constitution. This methodology raises fresh questions about how the Constitution is to be interpreted, and whether Williams marks a break from orthodox understandings of that task. This article assesses the significance of Williams for constitutional interpretation in Australia, and whether it lays the foundation for a more robust protection of state interests by the High Court.

Heresy in the High Court? Federalism as a Constraint on Commonwealth Power

Williams v Commonwealth of Australia is a landmark decision of the High Court on the scope of federal executive power in s 61 of the Constitution. The decision is also important for the interpretive methodology adopted by the Court. Notably, each judge based their understanding of s 61 upon federal readings of the Constitution. This methodology raises fresh questions about how the Constitution is to be interpreted, and whether Williams marks a break from orthodox understandings of that task. This article assesses the significance of Williams for constitutional interpretation in Australia, and whether it lays the foundation for a more robust protection of state interests by the High Court.

Williams v Commonwealth of Australia: [2012] HCA 23: High Court of Australia: French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ: 20 June 2012

Education – School chaplaincy – Public funding – Australia – School partaking in federal government funding scheme allocating money from consolidated revenue fund to provide for individual schools to buy in chaplaincy services – Parent with children attending participating school - Parent’s children not taking part in school chaplaincy services – Parent claiming use of executive power to fund scheme unconstitutional – Whether parent having standing to challenge scheme – Whether scheme beyond executive power of Commonwealth – Whether appointment of chaplain under scheme contrary to constitutional prohibition against ‘religious test’ for public appointment – Constitution of Australia, ss 61, 116

‘The Benefits of Industrial Organisation’? The Second Fisher Government and <em>Fin de Siècle Modernity</em> in Australia

Although Labor achieved an extraordinary political ascendancy at the 1910 federal election, Andrew Fisher's post-election speeches and interviews revealed that he remained troubled by two dilemmas: whether Labor could effectively control the transmission of its message in the public sphere and the degree to which Labor could impose its legislative agenda. Fisher stressed the need for Labor to establish a network of labour dailies. Labor also committed to a referendum to radically increase Commonwealth power to intervene in the economy and control 'powerful and predatory' corporate 'trusts and combines'. Labor's priorities had to be managed within the context of unprecedented industrialisation and technological change, the extraordinary global forces of fin de siecle modernity that framed Labor's interventions in government and the public sphere. Labor's mission to master 'the benefits of industrial organisation', by more effectively transmitting its message and expanding Commonwealth legislative power, was colonised by the forces of fin de siecle capital and culture to which Labor was required to adapt.

High Court Review 2009: Exit Kirby, Enter Consensus?

In its first full year under the leadership of Chief Justice Robert French, 2009 marked two key developments in the High Court: the retirement of Justice Michael Kirby and a shift to greater consensus amongst members of the bench. The first part of the Review analyses Kirby's contribution to Australian jurisprudence and asks whether lower rates of dissent can be attributed to his exit alone. The second part of the Review examines the key constitutional decisions handed down by the Court in 2009, which decided matters relating to the acquisition of property on ‘just terms’ in the Territories, the application of the Kable doctrine to preserve the separation of powers in the States and the source and scope of the Commonwealth's power to spend.

The Interpretation of Legal Terms Used in the Definition of Commonwealth Powers

Many of the terms the Constitution uses to define Commonwealth legislative powers are legal terms or at least terms well-known to the law with legally defined meanings in 1900. The ordinary meaning of some of these terms is dependent on, and derived from, their legal meaning. Therefore, it is reasonable to assume that their constitutional meaning is consistent with their legal meaning. This poses a problem: what is the legal meaning of a legal term? One answer may be that the legal terms are shorthand for the bundle of legal rights and duties and practices associated with that term. Interpreting some Commonwealth power as powers over evolving, contested practices allows the scope of those powers to evolve while the basic meaning, that of a power over an evolving legal or social practice, remains unchanged. Such an approach to interpretation is most relevant to the problem of interpreting powers over areas of law, where it enables workable limits to be placed on powers which, if interpreted in other ways, are either so narrow that they allow no innovative legislation or have no effective boundaries. It is also relevant to powers over contested social practices such as marriage and international relations, which the framers knew would change over time. Although not relevant to the interpretation of all powers, some of which cannot be interpreted as powers over contested social practices, it is an interpretive approach which does allow the content of some powers to change, consistently with the idea that the Constitution, as a document, has an unchanging meaning.

The Interpretation of Legal Terms Used in the Definition of Commonwealth Powers

Many of the terms the Constitution uses to define Commonwealth legislative powers are legal terms or at least terms well-known to the law with legally defined meanings in 1900. The ordinary meaning of some of these terms is dependent on, and derived from, their legal meaning. Therefore, it is reasonable to assume that their constitutional meaning is consistent with their legal meaning. This poses a problem: what is the legal meaning of a legal term? One answer may be that the legal terms are shorthand for the bundle of legal rights and duties and practices associated with that term. Interpreting some Commonwealth power as powers over evolving, contested practices allows the scope of those powers to evolve while the basic meaning, that of a power over an evolving legal or social practice, remains unchanged. Such an approach to interpretation is most relevant to the problem of interpreting powers over areas of law, where it enables workable limits to be placed on powers which, if interpreted in other ways, are either so narrow that they allow no innovative legislation or have no effective boundaries. It is also relevant to powers over contested social practices such as marriage and international relations, which the framers knew would change over time. Although not relevant to the interpretation of all powers, some of which cannot be interpreted as powers over contested social practices, it is an interpretive approach which does allow the content of some powers to change, consistently with the idea that the Constitution, as a document, has an unchanging meaning.

The Howard Government, Regulatory Federalism and the Transformation of Commonwealth–State Relations

Various initiatives enhancing Commonwealth power relative to the States have been a feature of the Howard government that has surprised many observers. These developments need to be understood in the context of longer-term political, financial and regulatory changes that are challenging established features of Commonwealth–State relations. The Howard government's allocation of Goods and Services Tax (GST) revenue has offered the prospect of greater State-level financial and policy autonomy. But the Howard government has also inherited, and in some policy domains has significantly enhanced, the further development of a Commonwealth–State regime best described as ‘regulatory federalism’. Its effect, in contrast to the effect of the GST initiative, is to constrain the States' scope for policy autonomy. A similar impact is emerging from the Commonwealth's efforts to ensure that its conditional grants to the States better serve Commonwealth policy goals and priorities. And a raft of Commonwealth initiatives is bypassing the States altogether. Although the Howard government has clearly enhanced the role of the Commonwealth, it remains constrained by aspects of the federal system that are structurally entrenched and that continue to make intergovernmental collaboration, rather than confrontation, a sensible strategy.

The De-Colonisation of the Australian States

While Australia's colonial links with the United Kingdom were largely terminated by the Imperial Conferences of the 1920s and the Statute of Westminster 1931, the Australian States remained 'self-governing colonial dependencies of the British Crown' until the Australia Acts 1986 came into force. The States deliberately retained their links with the United Kingdom as a counter-balance to Commonwealth power. They believed that the British Government was politically disinterested in State matters and acted merely as the formal channel of communication in State matters. This belief was proved to be incorrect in the 1970s when the British Government exercised independent discretion in relation to the appointment and removal of State Governors, State petitions to the Privy Council and reserved State Bills. The States were spurred on by this revelation to seek to terminate their residual links with the United Kingdom, but only if they could directly advise the Queen. This paper describes the struggle for the decolonisation of the Australian States. It then discusses two important issues that arise as a result of this process of decolonisation. The first is the fundamental question of with whom sovereignty lies in Australia now that the Westminster Parliament no longer exercises legislative sovereignty over Australia. The second issue is the effect of decolonisation on the status of the Queen in Australia. Is there only one Crown with respect to Australia, or is Her Majesty the Queen of each State?

The leviathan technique for large-group analysis.

An initial concern with the problem of the one and the many has led to the Leviathan studies, a series of investigations into internal dynamic governing and deciding processes of large social groups, in particular of complex organizations. In scope, these studies aptly fit the subtitle of their namesake, Thomas Hobbes great work Leviathan or The Matter, Form, and Power of a Commonwealth. In his introduction, Hobbes said, “Art goes yet further, imitating that rational and most excellent work of nature, man. For by art is created that great Leviathan called a Commonwealth, or State, in Latin Civitas, which is but an artificial man; though of greater stature and strength than the natural, for whose protection and defense it was intended; and in which the sovereignty is an artificial soul, as giving life and motion to the whole body.” Here is an interim report of these studies that are artificially creating the workings of a complex organization by simulating social processes on the computer.

Commonwealth power in respect of vocational education in Australia: some historical vignettes with future potential.

Intervention in vocational education and training by the federal level of government in Australia (the Commonwealth) expanded exponentially in the last quarter of the 20th century, after halting and intermittent involvement in earlier decades. Such intervention in a field of public policy once considered the exclusive preserve of the States requires the assertion of a relevant head of power in the written constitution to ensure validity. Over the years a variety of powers has been deployed and a recent High Court case has opened the way for more far reaching intrusion. A review of earlier attempts to justify federal involvement suggests that the way is now open for uncontested Commonwealth control if it chooses to exercise it.

THE CONSTITUTION AND A NATIONAL INDUSTRIAL RELATIONS REGIME

<div class="page" title="Page 1"><div class="layoutArea"><div class="column"><p><span>[</span><span>The federal Government is proposing to bring about a single national scheme for the regulation of industrial relations in Australia. This will raise a number of important constitutional questions that may need to be resolved by the High Court. These questions as examined in this article are: could a single national law for the regulation of industrial relations be passed under a head of Commonwealth power (in particular, under the Commonwealth's powers over corporations, interstate trade and commerce or external affairs); even such a law could so be enacted, would it nevertheless be struck down due to an express or implied constitutional limitation; and to what extent could the law override the State laws that already govern much of the field?</span><span>] </span></p></div></div></div>

Will the High Court ‘WAKIM’ Chapter II of the Constitution?

The High Court held in 'Re Wakim; Ex parte McNally that federal courts can only exercise the judicial power of the Commonwealth, and cannot exercise State judicial power. Questions are raised whether the Court would ever take a similar approach to Chapter II of the Constitution, and hold that the Commonwealth executive can only exercise the executive power of Commonwealth, and not State executive power.

The Australian Environment Protection and Biodiversity Conservation Act 1999: What Role for the Commonwealth in Environmental Impact Assessment?

The Australian Environment Protection and Biodiversity Conservation Act 1999 (Cwlth) was proclaimed on 16 July 2000. This Act represents the most fundamental reform of environment legislation since the 1970s and it will change dramatically the role of the Commonwealth in environmental impact assessment. The Environment Protection and Biodiversity Conservation Act provides for Commonwealth involvement in environmental impact assessment to be focused on six matters of ‘national environmental significance’. Another significant feature of this Act is that it provides a framework for the accreditation of State and Territory environmental assessment and approval processes. This article provides an outline of the repealed Federal environmental impact assessment legislation, the Environment Protection (Impact of Proposals) Act 1974 (Cwlth), an assessment of its deficiencies and a discussion of the key reviews of Commonwealth environmental impact assessment. The main features of the new Environment Protection and Biodiversity Conservation Act along with the debate regarding the future role of the Commonwealth in environmental impact assessment, are then discussed. The issue of whether the new Act reflects an expansion or devolution of Commonwealth power with respect to environmental impact assessment is addressed and it is argued that the Act has the potential to expand Commonwealth power.

Health, the Law and Racism: The Campaign to Amend the Discriminatory Clauses in the Tuberculosis Act

Dr Barry Christophers, president of the Council for Aboriginal Rights, Victoria, and secretary of the Federal Council for Aboriginal Advancement's Equal Wages committee took on the work of challenging racially discriminatory clauses in a determination of the Tuberculosis Act. The campaign was a short, intense one. It began late in 1963. Eighteen months later, the clauses which prevented Aboriginal TB patients in Queensland from receiving an allowance designed to assist in recovery and prevent sufferers from returning to work when they were still infectious had been amended or removed. This was the result, mainly, of an effective letter writing campaign waged by Christophers. He also argued that one of the reasons for the non-payment of the tuberculosis allowance to eligible Aboriginal sufferers was that the receipt of such a payment would highlight the enormous discrepancy between actual Aboriginal wages in the north of the country and the basic government social service payment. The 'captain of the men of death', 'the white plague', or tuberculosis, as it is now known, was, at the time of Federation, the leading cause of death in Australia1. Forty-five years later, when Australia urgently needed a healthy workforce, tuberculosis was still responsible for more than a quarter of young adult deaths from all major individual causes.2 A buoyant economy, growth of Commonwealth health policy, and knowledge of how the disease could be controlled, provided the conditions for a sustained campaign against what the National Health and Medical Research Council referred to as 'a tragic feature of social life in Australia for many years'.3 The seriousness of the problem led to lobbying by Drs Keith Wunderly and Cotter Harvey and others for Commonwealth action. Once appointed as Commonwealth Director of Tuberculosis, Wunderly reported on the urgent need for a co-ordinated scheme. He proposed that the national tuberculosis campaign should be a joint Commonwealth/state undertaking. The states would control policy through a National Tuberculosis Advisory Council and the Commonwealth would control expenditure.4 This was a new step in federal-state relations in the area of health, the only Commonwealth power specified by the Australian Constitution being the quarantine power of clause 51 (ix). Now, however, a vision of a national health program based on co-operation between the states and the Commonwealth was being realised. The Tuberculosis Act gave authority for the Commonwealth to enter into arrangements with each state 'for the provision by the State, subject to agreed conditions, of services and facilities for the diagnosis, treatment and control of tuberculosis'. The Act specified the payment of an allowance for the purposes of '(a) encouraging such sufferers to refrain from working and to undergo treatment; (b) minimizing the spread of tuberculosis; and (c) promoting the treatment, after care and rehabilitation of sufferers from tuberculosis'.5 This allowance was different from the already existing invalid pension, for a permanent disability, or the sickness allowance, which was temporary. The more generous tuberculosis allowance was to support families and to ensure their adequate shelter and nutrition and 'so enable and encourage the sufferer to accept treatment'.6

Wilson & Kable: The Doctrine of Incompatibflity - An Alternative to Separation of Powers?

The recent decisions of the High Court in Wilson v Minister for Aboriginal and Torres Strait Islander Affairs and Kable v Director of Public Prosecutions (NSW) are the latest developments in the preservation of judicial independence in Australia. Both decisions apply in quite different circumstances a doctrine of incompatibility which is designed to protect the independence and impartiality of the judicial branch. Wilson established a restriction on Commonwealth power in relation to the appointment of federal judges persona designata while Kable established a restriction on State power in relation to the vesting of non-judicial power in State Supreme Courts. This article considers whether the same doctrine of incompatibility was applied in the quite different circumstances of each case, the nature of incompatibility and the ramifications of these decisions for the Commonwealth and especially for the States. In particular it is suggested that the reliance on Ch III in Kable provides a basis for further restrictions on State Parliaments comparable to those which apply to the Commonwealth Parliament by virtue of the doctrine of the separation of judicial power. These further restrictions on the States like that in Kable are the consequence not of a separation of powers as such but of the need to maintain the independence of the courts vested with federal judicial power. The decision in Kable is a further instance of a restriction on Commonwealth power being extended to the States by virtue of the indivisibility of Commonwealth and State affairs.

'Between a Rock and a Hard Place": The Imposition of a National Strategy of Sustainable Development with Resource Security

For the centralist conservationist, any possibility of creating a nationally imposed strategy over our natural resources, meeting standards of coherence and ecological soundness, may be received most favourably in the wake of a decade of poor environmental management by the states, the Commonwealth and private developers. The significant constitutional hurdles which such a strategy must overcome may be regarded as apparently insurmountable. However, utilisation of the extended limits of the constitutional ability of the Commonwealth, as reflected in several historic decisions of the High Court during the past decade to impose a Commonwealth-initiated national strategy of resource development, leads one to conclude that such a strategy may be both feasible and warranted. The subtle, but significant, issue laying at the centre of such considerations is the distinction between a negative, or prohibitive, regulatory strategy and a positive strategy for adherence to certain environmental standards in resource development. It is a view propounded in this paper that, whatever the effectiveness of Commonwealth power in a negatory land use role, the long-term cause of environment protection may be better served by a positive national strategy of resource development.