The Engineers’ Case PDF

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The Engineers’ Case...

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Constitutional Law Assignment: Topic 3 Introduction The Engineers’ Case1 is highly influential, its judgement is embedded in our federal system of government today. The Engineers Case2 establishes the literalist method of constitutional interpretation in Australia. Consequentially the literalist method shifted the federal balance between the state and Commonwealth governments towards a more centralist model. 3 In Work Choices4 no party questioned the authority of the Engineers’ Case5, probably because the Engineers’ doctrine is well entrenched and revisitation is unnecessary. In my opinion, the Engineers’ Case6 should remain unvisited for two central reasons. Firstly, because the Engineers’ doctrine is demised overtime as the High Court acknowledges its dangerous potential. Consequentially the doctrine’s strict application is non-existent. Secondly, limitations exist to ensure the Engineers’ doctrine does not undermine the constitution. In contrast the Engineers’ Case could be revisited to address the judges’ mistake to interpret the constitution as federal document.

The Historic Significance of the Engineers’ Case The Engineers’ Case is paramount to the interpretation of the Australian Constitution. The Engineers’ doctrine favours the literal and expansive reading of Commonwealth legislative powers subject only to express limitations found in the constitutional text. 7 The doctrine establishes that the constitution is understood as a statute of the Imperial Parliament and is interpreted based on the ordinary principles of statutory interpretation.8 The Engineers’ Case establishes three core principles. Firstly, that s 51 of the Constitution is given its widest literal meaning.9 Secondly, Engineers’ establishes that it is not permissible to read down a paragraph of s 51 on the grounds that some fundamental feature or basic value of 1 Amalgamated Society of Engineers v Adelaide Steamship Co Ltd (Engineers Case) (1920) 28 CLR 129. 2 Ibid. 3 New South Whales v Commonwealth (Work Choices) (2006) 229 CLR 1, 332 (Callinan J). 4 Ibid, (2006) 229 CLR 1 [50]. 5 Amalgamated Society of Engineers v Adelaide Steamship Co Ltd (Engineers Case) (1920) 28 CLR 129. 6 Ibid. 7 Suri Ratnapala, ‘Government Under The Law: The EBB and Flow of Sovereignty in Australia’ (2001) 24(3) University of New South Wales Law Journal 670,672. 8 Amalgamated Society of Engineers v Adelaide Steamship Co Ltd (Engineers Case) (1920) 28 CLR 129, 148150 (Knox CJ, Isaacs, Rich and Stark JJ). 9 Suri Ratnapala, ‘Government Under The Law: The EBB and Flow of Sovereignty in Australia’ (2001) 24(3) University of New South Wales Law Journal 670,673.

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the constitution is subverted by giving the paragraph its full literal effect.10 Thirdly, the court cannot recognise any implied limitations on Commonwealth power.11 These three principles establish the Engineers’ Doctrine. The High Court rejects two doctrines in the Engineers’ case. Firstly, the doctrine of reserved state powers is rejected.12 The reserve powers doctrine required that the Commonwealth could not exercise its legislative power in a way that interfered with the residual or reserved powers of states.13 Secondly, the High Court rejected the doctrine of implied governmental immunities.14 The implied immunities doctrine prohibits the Commonwealth and the states from imposing upon each other’s agents and instrumentalities burdens that fetter, control or interfere with the free exercise of legislative or executive power unless expressly authorised by the constitution. 15 Alternatively implied immunities is simply described as a doctrine that prohibits neither the Commonwealth or states from controlling each other.16 Consequentially the Engineers’ doctrine reduces the restrictive potential of the constitution and shifts the constitution towards the sovereignty model.17

The Demise of the Engineers’ Doctrine The Engineers’ case should remain unvisited due to its demise. The Engineers’ doctrine has eroded over time which reassures us that strict application of the doctrine is non-existent. Rich J describes the Engineers’ doctrine as ‘exploded’.18 The High Court realises the doctrine’s dangerous potential. Consequentially the ability to undermine the constitution any more, is reduced. Strict application of the Engineers’ doctrine allows Commonwealth legislation to reach almost any subject matter.19 The dangerous potential of the doctrine is 10 Ibid. 11 Ibid. 12 R v Barger (1908) 6 CLR 41 [69]. 13 Ibid. 14 R v Barger (1908) 6 CLR 41 [54] (Griffith CJ, Barton and O’Connor J). 15 Suri Ratnapala, ‘Government Under The Law: The EBB and Flow of Sovereignty in Australia’ (2001) 24(3) University of New South Wales Law Journal 670, 672. 16Augusto Zimmerman and Lorraine Finlay, ‘Reforming Federalism: A Proposal for Strengthening the Australian Federation’ (2011) 37(2) Monash University Law Review 190, 205. 17 Suri Ratnapala, ‘Government Under The Law: The EBB and Flow of Sovereignty in Australia’ (2001) 24(3) University of New South Wales Law Journal 670, 674. 18 Airlines of New South Whales Pty Ltd v New South Whales [No2] (1965) 113 CLR 54, 79 (Barwick CJ); Melbourne Corporation v Commonwealth (1947) 74 CLR 31, 66 (Rich J). 19 Suri Ratnapala, Thomas John, Vanitha Karean, and Cornelia Koch, Australian Constitutional Law: Commentary and Cases (Oxford University Press, 2007), 278.

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illustrated in Bank of New South Whales v Commonwealth (Bank Nationalisation Case) 20. Latham CJ explains his difficulties accepting the idea that a Commonwealth legislative power is valid unless it contravenes some express prohibition in the constitution.21 Latham CJ uses an example of the Commonwealth’s power to make taxation laws. Latham CJ states ‘If all laws passed by the Commonwealth parliament imposing taxes of any kind, were held to be valid, then the taxation power alone would enable the Commonwealth Parliament to pass laws upon any subject by imposing tax upon specified acts or omissions.’22 If the Commonwealth passes laws on any subject and imposes taxes of any kind, the federal nature of the constitution is completely undermined. The High Court acknowledges the Engineers’ doctrine and is aware of its dangerous potential.

Limitations on the Engineers Doctrine In response to the destructive potential of the Engineers’ doctrine, judges subsequently depart from the doctrine. The Engineers’ doctrine is demised by implied limitations on the Commonwealth. Melbourne Corporation v Commonwealth23 illustrates the Engineers’ demise and discovers implied limitations. The implied limitations doctrine works on two limbs to limit the Commonwealth. Limb one prohibits discrimination, where special burdens are placed on states.24 Limb two establishes the prohibition against laws of general application operating to destroy or curtail the continued existence of the States or their capacity to function as governments.25 In Melbourne Corporation v Commonwealth26 we see a clear departure from the Engineers’ doctrine to defend the structure and basic values of the constitution.27 Strict application of the Engineers’ doctrine would have found the Banking Act 1945 (Cth) in the State Banking Case valid. A counter argument to the establishment Melbourne Corporation principle is that in practice, it does little to restrict the expansion of Commonwealth power.28 However the Engineers’ case should remain unvisited as the 20 (1948) 76 CLR 1. 21 Bank of New South Whales v Commonwealth (Bank Nationalisation Case) (1948) 76 CLR 1 [183]. 22 Ibid. 23 (State Banking Case) (1947) 74 CLR 31. 24 Melbourne Corporation v Commonwealth (State Banking Case) (1947) 74 CLR 31 [60-66] (Latham CJ, and Rich J); [1947] ALR 377; Re Australian Education Union; Ex Parte Victoria (1994) 184 CLR 188 [231] (Mason CJ, Brennan, Deane, Toohey, Gaudron, and McHugh JJ). 25 Ibid. 26 (State Banking Case) (1947) 74 CLR 31 [78]. 27 Suri Ratnapala, ‘Government Under The Law: The EBB and Flow of Sovereignty in Australia’ (2001) 24(3) University of New South Wales Law Journal 670, 674. 28 Augusto Zimmerman and Lorraine Finlay, ‘Reforming Federalism: A Proposal for Strengthening the Australian Federation’ (2011) 37(2) Monash University Law Review 190, 207.

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potentially dangerous doctrine it created, is reduced to merely a legal proposition.29 The literalist method of interpretation is still used where judges see appropriate. Constitutional interpretation, in practice, does not grossly undermine the constitution. If the Melbourne Corporation principle is ineffective as it is criticised to be, alternative limitations to the Engineers’ doctrine also exist. The rule of law is an assumption that underlies the Australian Constitution and potentially limits Commonwealth power as the High Court has accepted.30 Plaintiff S157 v Commonwealth illustrates the application of this limitation.31 Lastly limits based on proportionality are introduced in the post Engineers’ period. The ‘appropriate and adapted test’ is introduced in Commonwealth v Tasmania (Tasmanian Dam Case) (1983) 158 CLR 1.32 Dean J explains that there must be reasonable proportionality between the designated purpose or object and the means which the law embodies for achieving or procuring it.33 The High Court distinguishes between purposive and nonpurposive powers to investigate the measure of reasonable proportionality.34 We are able to see multiple limitations that check, restrict and keep the Engineers’ doctrine accountable to the constitution. The Engineers’ case should remain unvisited because there are numerous limitations that restrict the Engineers’ doctrine from operating in an unconstitutional manner.

Why the Engineers’ case could be revisited In contrast the Engineers’ case should be revisited, to address the mistake of judges’ refusal to interpret the constitution as a federal document.

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Consequentially revisitation prevents

‘destabilising the federal character of the Australian Constitution’ any more than it already is.36 As stated above, the Court opted to interpret the constitution as a statute of the imperial

29 Melbourne Corporation v Commonwealth (State Banking Case) (1947) 74 CLR 31 [78]. 30 Australian Communist Party v Commonwealth (1951) 83 CLR 1 [193] (Dixon J). 31 (2003) 211 CLR 476 [513]. 32 Zines, L, The High Court and the Constitution, (Reed International Books Australlia Butterworths, 4th ed 1997). 33 Commonwealth v Tasmania (Tasmanian Dam Case) (1983) 158 CLR 1 [260]. 34 Suri Ratnapala, Thomas John, Vanitha Karean, and Cornelia Koch, Australian Constitutional Law: Commentary and Cases (Oxford University Press, 2007), 375. 35 Augusto Zimmerman and Lorraine Finlay, ‘Reforming Federalism: A Proposal for Strengthening the Australian Federation’ (2011) 37(2) Monash University Law Review 190, 206. 36 Work Choices Case (2006) 229 CLR 1, 83.

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parliament.37 We see the literalist method of interpretation is flawed when we strictly apply meanings of words in their ordinary natural sense. The literalist method ensures that we must obey the natural meaning of the words even if the result is inconvenient or impolitic or improbable.38 Strict literalism demonstrates the constitution is interpreted with wilful ignorance as outrageous or inconvenient outcomes are possible without any effort to prevent them. Literalism, where used to interpret the constitution as an imperial statute ‘completely overlooks the federal basis and structure of the constitution as a whole’.39 An alternative to the literalist approach is proposed by Kirby J in Work Choices.40 Kirby J explains that we pay regard to the context of statutes by requirement, and we should do the same for the meanings of constitutional provisions.41 The Engineers’ case should arguably be revisited to ensure the constitution is interpreted as a federal document. If the constitution is interpreted as a federal document we consider the context the constitution is written in; its federal basis and construction. Consequentially we are more likely to live in the federation the founding fathers intended.

Conclusion The Engineers’ case is proven as highly significant, its doctrine is well entrenched in our Australian Federal system. The Engineers’ doctrine is regulated, controlled, and used where judges find appropriate. The Engineers’ doctrine is demised as we see limitations such as the Melbourne Corporation Principle, the rule of law and the test of proportionality active. The constitution to be read federal document could be a good enough reason to revisit, but we would have to reform our centralist model that works. My opinion stands and I believe revisitation of the Engineers’ doctrine is simply inappropriate now, because it should have been addressed long ago. It seems Australia is comfortable to read constitution as a statute of the imperial parliament. Consequentially the Work Choices Case had a predictable outcome because of the recapitulation of fundamental constitutional choices.42 37 Augusto Zimmerman and Lorraine Finlay, ‘Reforming Federalism: A Proposal for Strengthening the Australian Federation’ (2011) 37(2) Monash University Law Review 190, 206. 38 Amalgamated Society of Engineers v Adelaide Steamship Co Ltd (Engineers Case) (1920) 28 CLR 129 [162] (Higgins J). 39 Nicholas Aroney, ‘The Ghost in the Machine: Exorcising Engineers’ (Paper presented at the Fourteenth Conference of the Samuel Griffi th Society, Menzies Hotel, Sydney, 14 –16 June 2002) 69 < http://www. samuelgriffi th.org.au/papers/pdf/Vol14.pdf>. 40 (2006) 229 CLR 1. 41 Work Choices (2006) 229 CLR 1, 83. 42 Nicholas Aroney, ‘Constitutional Choices in the Work Choices Case, or What Exactly is Wrong with the Reserved Powers Doctrine’ (2008) 32 Melbourne University Law Review 1, 31....