The reserved powers doctrine was a principle used by the inaugural High Court of Australia in the interpretation of the Constitution of Australia, that emphasised the context of the Constitution, drawing on principles of federalism, what the Court saw as the compact between the newly formed Commonwealth and the former colonies, particularly the compromises that informed the text of the constitution. The doctrine involved a restrictive approach to the interpretation of the specific powers of the Federal Parliament to preserve the powers that were intended to be left to the States. The doctrine was challenged by the new appointments to the Court in 1906 and was ultimately abandoned by the High Court in 1920 in the Engineers' Case,. replaced by an approach to interpretation that emphasised the text rather than the context of the Constitution.
__TOC__ Background
The Constitution sets up the Commonwealth of Australia as a federal polity, with enumerated limited specific powers conferred on the Federal Parliament. The constitutional convention held in Adelaide in 1897, passed a resolution that, as the first condition for the creation of a federal government, "the powers, privileges and territories of the several existing colonies shall remain intact, except in respect of such surrenders as may be agreed upon to secure uniformity of law and administration in matters of common concern." The intention of the framers of the Australian Constitution has been said to be "to create a federal government, albeit of limited jurisdiction, which would be responsive to the popular will in specified matters of national concern and to superimpose it upon existing colonial or state governments which were seen as each adequately responsive to the popular will within their respective territorial constituencies." Federal Law Review 11.
One of the tasks facing the inaugural High Court was to establish its reputation and in so doing to win the confidence of the Australian people. Another was to resolve "constitutional loose ends" about the nature of the federal system and the legislative powers of the new Commonwealth that remained unresolved following the debates in the constitutional conventions.
For the first two decades, the High Court stayed reasonably true to the "co-ordinate" vision of the framers in which the Commonwealth and the States were both financially and politically independent within their own spheres of responsibility.. The High Court rejected Commonwealth government attempts to extend its authority into what were perceived as areas of State jurisdiction. The court did so by adopting a doctrine of "reserved State powers" combined with "implied inter-governmental immunities", to protect both the Commonwealth and the states from legislative or executive action which "would fetter, control, or interfere with, the free exercise" of the legislative or executive power of the other.. at p. 534 & 537-8.
The essence of the first part of the doctrine was that grants of power to the Commonwealth in the Constitution should be read in a restrictive way so as to preserve areas that had been intentionally left as the responsibility of the states, particularly where the Commonwealth power had an interstate element, the trade and commerce power,.. and the conciliation and arbitration power.Commonwealth of Australia Constitution, section 51(xxxv)..
Composition of the High Court The three inaugural judges of the High Court, Griffith CJ, Barton and O'Connor JJ, and the two new judges appointed in 1906, Isaacs and Higgins JJ, had been leading participants in the Constitutional Conventions and all are properly seen as among the framers of the Constitution. at -. The Court described the Constitution as "framed in Australia by Australians, and for the use of the Australian people", thus when the Court spoke of what was framers of the Constitution knew, intended or expected,D'Emden v Pedder (1904) 1 CLR 91 at p. 113.Railway servants case (1906) 1 CLR 488 at p. 536.R v Barger (1908) 6 CLR 41 at p. 69-7 per Grifith CJ, Barton & O'Connor JJ.Union label case (1909) 8 CLR 330 at p. 514 per Griffith CJ.Huddart, Parker & Co Pty Ltd v Moorehead (1909) 8 CLR 33 at p. 563 per Barton J. their Honours are referring to their personal experience in that process, and not to the intention or knowledge of the Imperial Parliament in passing the Commonwealth of Australia Constitution Act 1900.
Griffith CJ, a former Premier of Queensland, wrote most of the text of the Constitution. In 1891 Griffith resisted the idea of a commonwealth tribunal to deal with interstate industrial disputes. His objection was grounded in his notion of the reserve powers of the States. According to Griffith, "property and civil rights are left to the States". The danger of Kingston's proposal, as Griffith saw it, was that a national arbitral tribunal could cut across such rights. S Griffith at p. 782. Barton J, a former member of the Parliament of NSW and the first Prime Minister of Australia, had been the leader of Australian federation following the death of Sir Henry Parkes and was the political leader who carried the draft constitution through the 1897–1898 Conventions and had intimate knowledge of the compromises that informed the text of the constitution. Barton resisted the proposal for Commonwealth power in relation to interstate industrial disputes. Barton was part of the delegation to London in 1900 that lobbied for the successful passage of the Bill through the British Parliament. O'Connor J was also a former member of the Parliament of NSW and a close associate of Barton, including in the campaign for Australian Federation and as a member of the first federal ministry under then Prime Minister Barton. O'Connor had joined Barton in resisting proposal the proposal of interstate industrial disputes. After Federation he was Vice-President of the Executive Council and led the government in the Senate until his appointment as one of the inaugural justices of the High Court in 1903. Isaacs J had been a member of the Parliament of Victoria and had many reservations about the draft constitution. Alfred Deakin attributed the failure to elect him to the committee drafting the constitution to "a plot discreditable to all engaged in it" and that this antagonizing and humiliating snub sharpened his "tendency to minute technical criticism ... so as to bring him not infrequently into collision" with the drafting committee. In March 1898 Isaacs pleaded for delay for further consideration. After federation Isaacs was a member of the Australian Parliament and three of the leading cases in relation to the doctrine concerned legislation drafted while he was Attorney-General. Sir Robert Garran, then secretary of the Attorney-General's Department, recalled that Isaacs "had a remarkably keen brain but it was apt to be sometimes too subtle for my liking. When we were drafting a bill whose constitutionality was not beyond doubt, his devices to conceal any possible want of power were sometimes so ingenious as to raise, rather than evade, suspicion." Higgins J had also been a member of the Parliament of Victoria and had successfully argued at the 1897–1898 conventions that the constitution should contain a guarantee of religious freedom, and also a provision giving the federal government the power to make laws relating to the conciliation and arbitration of industrial disputes. The industrial disputes proposal was initially unsuccessful, H Higgins at p. 782, vote at p. 793, 12 in favour, including Higgins & Isaacs, 22 opposed, including Barton & O'Connor. however Higgins was undeterred and succeeded in 1898. vote at p. 212, 22 in favour, including Higgins & Isaacs, 19 opposed, including Barton & O'Connor. Despite these successes, Higgins J had opposed the draft constitution produced by the convention as too conservative, and campaigned unsuccessfully to have it defeated at the 1899 Australian constitutional referendum. Australian Colonial Law Monographs 1 at p. 118C. Higgins was also a member of the Australian Parliament. When the Australian Labor Party sought to amend the Conciliation and Arbitration Bill to cover State railway employees, Higgins was one of the radicals who supported the amendments and helped bring down Deakin's government. When Labor formed a minority government under Prime Minister Chris Watson in 1904, Higgins became Attorney-General in the Labor ministry, because Labor had no suitably qualified lawyer in Parliament.
Developments of the doctrine
Peterswald v Bartley (1904) Peterswald v Bartley concerned a brewer of beer at Cootamundra in the state of New South Wales. Bartley had a licence under the Commonwealth Beer Excise Act 1901,. which involved payment of an annual fee together with duty on the quantity of beer. He didn't however have a licence under the NSW Liquor Act 1898 which required payment of a fixed fee regardless of the brewer's output.. Bartley had successfully argued in the Supreme Court of NSW that the NSW licence fee was an excise duty and that the effect of section 90 of the Australian Constitution was that the State Act ceased to have effect once the Commonwealth imposed uniform customs duties.Peterswald v Bartley NSWStRp 28; (1904) 4 SR (NSW) 290.
The High Court held that the NSW licence fee was not an excise as the fee did not depend on the quantity or value of the goods. Instead the NSW Act was for regulating the trade, including ensuring there was no adulteration of the beer. In delivering the opinion of the Court, Griffith CJ set out a principle that would be refined to the reserved state powers doctrine, stating: In construing a Constitution like this it is necessary to have regard to its general provisions as well as to particular sections, and to ascertain from its whole purview whether the power to deal with such matters was intended to be withdrawn from the States, and conferred upon the Commonwealth. The Constitution contains no provisions for enabling the Commonwealth Parliament to interfere with the private or internal affairs of the States, or to restrict the power of the State to regulate the carrying on of any businesses or trades within their boundaries..
Railway servants case (1906) Whether State railways employees should be covered by the Commonwealth Conciliation and Arbitration Bill was a politically contentious issue. When the Australian Labor Party sought to amend the Conciliation and Arbitration Bill to cover State railway employees, a number of radicals in Deakin's government, including Isaacs and Higgins, supported the amendments and helped bring down the government, with Labor forming a minority government under Prime Minister Chris Watson.. When finally passed in December 1904, the Commonwealth Conciliation and Arbitration Act 1904, purported to cover State railway employees with "Industrial dispute" defined as "including disputes in relation to employment upon State Railways".