View source for Reserved powers doctrine

{{short description|Defunct principle of Australian law}}
{{Use Australian English|date=November 2017}}
{{Use dmy dates|date=November 2017}}
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 ''[[Amalgamated Society of Engineers v Adelaide Steamship Co Ltd|Engineers' Case]]'',<ref name=Eng>{{cite AustLII|litigants=[[Amalgamated Society of Engineers v Adelaide Steamship Co Ltd]] (Engineers' Case) |year=1920 |court=HCA |num=54 |parallelcite=[http://www.austlii.edu.au/au/cases/cth/HCA/1920/54.pdf (1920)&nbsp;28&nbsp;CLR&nbsp;129]
}}.</ref> replaced by an approach to interpretation that emphasised the text rather than the context of the Constitution.

__TOC__
==Background==

{{Main article|Federation of Australia}}
The Constitution sets up the Commonwealth of Australia as a [[Federalism|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."<ref>{{cite journal|author=Stephen Gageler |author-link=Stephen Gageler |title=Foundations of Australian Federalism and the Role of Judicial Review |journal=Federal Law Review |date=1987 |url=http://www.austlii.edu.au/au/journals/FedLawRw/1987/11.html}} [1987] [[Federal Law Review]] 11.</ref>

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.{{sfn|Dixon & Williams (eds)|loc=Foreword by Sir Anthony Mason}} 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.{{sfn|Dixon & Williams (eds)|loc=Ch 5 The Griffith Court by John M Williams}}

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.<ref>{{cite book |last=Zines |first=Leslie |author-link=Leslie Zines |chapter=The Federal Balance and the Position of the States |editor-first=Gregory |editor-last=Craven |editor-link=Greg Craven (academic) |url=https://books.google.com/books?id=j7xQAQAAIAAJ |title=The Convention Debates 1891–1898: commentaries, indices and guide |location=Sydney |publisher=Legal Books |year=1986 |page=81 |isbn=9780949553171}}.</ref> 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 [[Intergovernmental immunity (Australia)|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.<ref name="D'Emden">{{cite AustLII |litigants=[[D'Emden v Pedder]] |year=1904 |court=HCA |num=1 |parallelcite=[http://www.austlii.edu.au/au/cases/cth/HCA/1904/1.pdf (1904)&nbsp;1&nbsp;CLR&nbsp;91]}}.</ref><ref name="Railway servants">{{cite AustLII |litigants=Railway servants case |link=Federated Amalgamated Government Railway & Tramway Service Association v NSW Rail Traffic Employees Association |year=1906 |court=HCA |num=94 |parallelcite=[http://www.austlii.edu.au/au/cases/cth/HCA/1906/94.pdf (1906)&nbsp;1&nbsp;CLR&nbsp;488]}} at p. 534 & 537-8.</ref>

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 [[Section 51(i) of the Constitution of Australia|trade and commerce power]],<ref name="Trade power"/><ref name="Union label">
{{cite AustLII |litigants=Union label case |link=Attorney-General for NSW v Brewery Employees Union of NSW |year=1908 |court=HCA |num=94 |parallelcite=[http://www.austlii.edu.au/au/cases/cth/HCA/1908/94.pdf (1909)&nbsp;8&nbsp;CLR&nbsp;330]}}.</ref><ref name=Huddart>{{cite AustLII|litigants=[[Huddart, Parker & Co Pty Ltd v Moorehead]] |year=1909 |court=HCA |num=36 |parallelcite=[http://www.austlii.edu.au/au/cases/cth/HCA/1909/36.pdf (1909)&nbsp;8&nbsp;CLR&nbsp;33]}}.</ref> and the [[Section 51(xxxv) of the Australian Constitution|conciliation and arbitration power]].<ref name="Arbitration power">Commonwealth of Australia Constitution, [http://www.austlii.edu.au/au/legis/cth/consol_act/coaca430/s51.html section 51(xxxv).]</ref><ref name=Barger>{{cite AustLII |litigants=[[R v Barger]] |year=1908 |court=HCA |num=43 |parallelcite=[http://www.austlii.edu.au/au/cases/cth/HCA/1908/43.pdf (1908)&nbsp;6&nbsp;CLR&nbsp;41]}}.</ref>

===Composition of the High Court===
The three inaugural judges of the High Court, [[Samuel Griffith|Griffith]] [[Chief Justice of Australia|CJ]], [[Edmund Barton|Barton]] and [[Richard Edward O'Connor|O'Connor]] [[Justices|JJ]], and the two new judges appointed in 1906, [[Isaac Isaacs|Isaacs]] and [[H. B. Higgins|Higgins]] JJ, had been leading participants in the [[Constitutional Convention (Australia)|Constitutional Conventions]] and all are properly seen as among the framers of the Constitution.<ref>{{cite AustLII |litigants=The WorkChoices case |link=New South Wales v Commonwealth (2006) |year=2006 |court=HCA |num=52 |parallelcite=(2006) 229 [[Commonwealth Law Reports|CLR]] 1}} at [48]-[49].</ref> The Court described the Constitution as "framed in Australia by Australians, and for the use of the Australian people",<ref name="Petersweld"/> thus when the Court spoke of what was framers of the Constitution knew, intended or expected,<ref>''[[D'Emden v Pedder]]'' [http://www.austlii.edu.au/au/cases/cth/HCA/1904/1.pdf (1904)&nbsp;1&nbsp;CLR&nbsp;91] at p. 113.<br>''[[Federated Amalgamated Government Railway & Tramway Service Association v NSW Rail Traffic Employees Association|Railway servants case]]'' [http://www.austlii.edu.au/au/cases/cth/HCA/1906/94.pdf (1906) 1 CLR 488] at p. 536.<br>''[[R v Barger]]'' [http://www.austlii.edu.au//au/cases/cth/HCA/1908/43.pdf (1908)&nbsp;6&nbsp;CLR&nbsp;41] at p. 69-7 per Grifith CJ, Barton & O'Connor JJ.<br>''[[Attorney-General for NSW v Brewery Employees Union of NSW|Union label case]]'' [http://www.austlii.edu.au//au/cases/cth/HCA/1908/94.pdf (1909)&nbsp;8&nbsp;CLR&nbsp;330] at p. 514 per Griffith CJ.<br>''[[Huddart, Parker & Co Pty Ltd v Moorehead]]'' [http://www.austlii.edu.au/au/cases/cth/HCA/1909/36.pdf (1909)&nbsp;8&nbsp;CLR&nbsp;33] at p. 563 per Barton J.</ref> 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.<ref>{{cite web |title=''Commonwealth of Australia Constitution Act'' 1900 (Imp) |url=http://www.legislation.gov.uk/ukpga/1900/12/pdfs/ukpga_19000012_en.pdf}}</ref>

* Griffith CJ, a former [[Premier of Queensland]], wrote most of the text of the Constitution.<ref name="Griffith ADB">{{Australian Dictionary of Biography |first=R. B. |last=Joyce |title=Griffith, Sir Samuel Walker (1845–1920) |id2=griffith-sir-samuel-walker-445 |accessdate=22 October 2016}}</ref> 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.<ref>{{cite web |title=Official Record of the Debates of the Australasian Federal Convention, Sydney, 6 April 1891 |url=http://parlinfo.aph.gov.au/parlInfo/search/display/display.w3p;query=Id%3A%22constitution%2Fconventions%2F1891-1031%22}} S Griffith at p. 782.</ref>
*Barton J, a former member of the [[Parliament of New South Wales|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.{{sfn|Dixon & Williams (eds)|loc=Ch 5 The Griffith Court by John M Williams}} Barton resisted the proposal for Commonwealth power in relation to interstate industrial disputes.<ref name="17 April 97"/><ref name="27 Jan 98"/> Barton was part of the delegation to London in 1900 that lobbied for the successful passage of the Bill through the British Parliament.<ref name="Barton PM">{{cite web | title =Edmund Barton, before office | work =Australia's Prime Ministers | publisher =[[National Archives of Australia]] | url =http://primeministers.naa.gov.au/primeministers/barton/before-office.aspx | access-date=22 October 2016}}</ref><ref name="Barton ADB">{{Australian Dictionary of Biography | first=Martha | last=Rutledge | title= Barton, Sir Edmund (1849–1920) | publisher =[[Australian National University]]  |id2=barton-sir-edmund-toby-71 | accessdate=22 October 2016}}</ref>
*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 [[Barton ministry|first federal ministry]] under then Prime Minister Barton. O'Connor had joined Barton in resisting proposal the proposal of interstate industrial disputes.<ref name="17 April 97"/><ref name="27 Jan 98"/> After Federation he was [[Vice-President of the Executive Council]] and led the government in the [[Australian Senate|Senate]] until his appointment as one of the inaugural justices of the High Court in 1903.<ref name="OConnor ADB">{{Australian Dictionary of Biography |last=Rutledge |first=Martha |year=1988 |id2=oconnor-richard-edward-dick-1102 |title= O'Connor, Richard Edward (Dick) (1851–1912) |accessdate=22 October 2016}}</ref>
* 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.<ref name="Isaacs ADB">{{Australian Dictionary of Biography |last= Cowen |first= Zelman |authorlink= Zelman Cowen |year= 1983 |id2=isaacs-sir-isaac-alfred-6805 |title= Isaacs, Sir Isaac Alfred (1855–1948)  |accessdate=22 October 2016}}</ref> After federation Isaacs was a member of the [[Parliament of Australia|Australian Parliament]] and three of the leading cases in relation to the doctrine concerned legislation drafted while he was [[Attorney-General of Australia|Attorney-General]].<ref name="Union label"/><ref name=Huddart/><ref name=Barger/> 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."<ref name="Isaacs ADB"/>
*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,<ref name="17 April 97">{{cite web |url=http://parlinfo.aph.gov.au/parlInfo/search/display/display.w3p;query=Id%3A%22constitution%2Fconventions%2F1897-1059%22 |title=Official Record of the Debates of the Australasian Federal Convention, Adelaide, 17 April 1897}} H Higgins at p. 782, vote at p. 793, 12 in favour, including Higgins & Isaacs, 22 opposed, including Barton & O'Connor.</ref> however Higgins was undeterred and succeeded in 1898.<ref name="27 Jan 98">{{cite web |title=Official Record of the Debates of the Australasian Federal Convention, Melbourne, 27 January 1898 |url=http://parlinfo.aph.gov.au/parlInfo/search/display/display.w3p;query=Id%3A%22constitution%2Fconventions%2F1898-1096%22}} vote at p. 212, 22 in favour, including Higgins & Isaacs, 19 opposed, including Barton & O'Connor.</ref> 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.<ref name="Higgins ADB">{{Australian Dictionary of Biography |last= Rickard |first=John |year= 1983 |id2=higgins-henry-bournes-6662  |title=Higgins, Henry Bournes (1851–1929) | publisher =[[Australian National University]]  |accessdate=22 October 2016}}</ref><ref>{{cite journal |author=H B Higgins |title=Essays and Addresses on the Australian Commonwealth Bill |journal=Australian Colonial Law Monographs |date=1900 |url=http://www.austlii.edu.au/au/journals/AUColLawMon/1900/1.html}} [1900] Australian Colonial Law Monographs 1 at p. 118C.</ref> 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 [[Watson ministry|Labor ministry]], because Labor had no suitably qualified lawyer in Parliament.<ref name="Higgins ADB"/>

==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 [[license|licence]] under the [[Parliament of Australia|Commonwealth]] ''Beer Excise Act'' 1901,<ref name="Beer Excise Act">{{cite web |url=https://www.legislation.gov.au/Details/C1901A00007 |title=''Beer Excise Act'' 1901 |date=5 October 1901 |publisher=Commonwealth of Australia}}.</ref> 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.<ref name=LiquorAct>{{cite web |title=''Liquor Act 1898'' |url=http://www.legislation.nsw.gov.au/acts/1898-18.pdf |publisher=NSW Parliamentary Counsel's Office |access-date=4 August 2016}}.</ref> Bartley had successfully argued in the [[Supreme Court of New South Wales|Supreme Court of NSW]] that the NSW licence fee was an [[excise|excise duty]] and that the effect of [[Section 90 of the Constitution of Australia|section 90]] of the [[Australian Constitution]] was that the State Act ceased to have effect once the Commonwealth imposed uniform customs duties.<ref>''Peterswald v Bartley'' [http://www.austlii.edu.au/au/cases/nsw/NSWStRp/1904/28.html &#91;1904&#93; NSWStRp 28]; (1904) 4 SR (NSW) 290.</ref>

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:
<blockquote>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.<ref name="Petersweld">{{cite AustLII|litigants=[[Peterswald v Bartley]] |year=1904 |court=HCA |num=21 |parallelcite=[http://www.austlii.edu.au/au/cases/cth/HCA/1904/21.pdf (1904)&nbsp;1&nbsp;CLR&nbsp;497]}}.</ref></blockquote>

===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 Government (1903-1904)|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]].<ref>{{cite web| url=http://primeministers.naa.gov.au/primeministers/deakin/in-office.aspx |title=Alfred Deakin in office |work=Australia's Prime Ministers |publisher=[[National Archives of Australia]] |access-date=14 November 2016}}.</ref> When finally passed in December 1904, the [[Commonwealth Conciliation and Arbitration Act 1904|''Commonwealth Conciliation and Arbitration Act'' 1904]],<ref name="Arbitration Act">{{cite web|title=''Commonwealth Conciliation and Arbitration Act'' 1904 |date=15 December 1904 |url=https://www.legislation.gov.au/Details/C1904A00013 |publisher=Commonwealth of Australia}}</ref> purported to cover State railway employees with "Industrial dispute" defined as "including disputes in relation to employment upon State Railways".<ref name="Arbitration Act"/>

The High Court considered the validity of this provision in the [[Federated Amalgamated Government Railway & Tramway Service Association v NSW Rail Traffic Employees Association|Railway servants case]].<ref name="Railway servants"/> The NSW Rail Traffic Employees Association was, as the name suggests, a [[trade union|union]] that represented railway employees of the State of NSW and only those employees and sought to be registered under the Commonwealth Act. Another union, the Federated Amalgamated Government Railway and Tramway Service Association, objected to the registration of the NSW union and the issue was referred to the High Court.<ref>It is not clear from the judgement who the appellant union covered in addition to State railway employees and they did not take any part in the argument of the appeal.</ref> Higgins {{post-nominals|country=AUS|KC}} who appeared for the respondents,<ref>While a member of Parliament, Higgins, like Isaacs, maintained a practice as a barrister.</ref> in arguing that the Act was valid, relied not only on the conciliation and arbitration power,<ref name="Arbitration power"/> but also submitted that railways were vital to interstate trade and commerce and as such was an exercise of the trade and commerce power.<ref name="Trade power"/> Isaacs represented the Commonwealth in his capacity as the then Attorney-General, also arguing for validity based on both the conciliation and arbitration power and the trade and commerce power. NSW and Victoria intervened to argue that the ''Conciliation and Arbitration Act'' 1904 was invalid in so far as it purported to include State railway servants.

The High Court held that to regulate the terms and conditions of the engagement, employment and remuneration of the State railway servants was to interfere with the control of the State railways. The Court applied the converse of the "implied inter-governmental immunities" to protect the States from legislative or executive action by the Commonwealth which "would fetter, control, or interfere with, the free exercise" of the legislative or executive power of the States.<ref name="D'Emden"/> Griffiths CJ again delivered the judgement of the Court, which again emphasised the federal nature of the Constitution, stating that "The Constitution Act is not only an Act of the Imperial legislature, but it embodies a compact entered into between the six Australian Colonies which formed the Commonwealth. ... the Constitution as framed was to be, and was, submitted to the votes of the electors of the States."<ref name="Railway servants"/>

==Expansion of the Court and the emergence of dissent==

The appointment of Isaacs and Higgins JJ in 1906 disrupted the unanimity of the inaugural members of the Court, with a clash between the three inaugural 'federalists' and the two 'nationalists'. The division in the Court can be seen as a continuation of the debate in the constitutional conventions about the nature of the federal system and the legislative powers of the new Commonwealth.{{sfn|Dixon & Williams (eds)|loc=Ch 5 The Griffith Court by John M Williams}}

===''R v Barger'' (1908)===
In ''[[R v Barger]]''<ref name="Barger"/> the Court had to consider whether the Commonwealth could use an [[excise|excise tariff]] under the [[Section 51(ii) of the Australian Constitution|taxation power]],<ref name="Taxation power">[http://www.austlii.edu.au/au/legis/cth/consol_act/coaca430/s51.html section 51(ii)] Commonwealth of Australia Constitution.</ref> as a means of [[protectionism|protecting]] manufacturers who paid "fair and reasonable" wages to their employees. The Court was divided 3:2 with the majority, Grifith CJ, Barton & O'Connor JJ, holding that the ''Excise Tariff Act'' 1906,<ref name="Excise Act">{{cite web |url=https://www.legislation.gov.au/Details/C1906A00016 |title=''Excise Tariff Act'' 1906 |date=12 October 1906 |publisher=Commonwealth of Australia}}.</ref> was invalid.{{sfn|Dixon & Williams (eds)|loc=Ch 5 The Griffith Court by John M Williams}} While the doctrine of reserved powers permeated the decision of the majority it is not clear that the decision rested solely on that doctrine.<ref name="Zines">{{cite book |author=Zines, L |author-link=Leslie Zines |url=https://www.federationpress.com.au/bookstore/book.asp?isbn=9781760020248 |title=The High Court and the Constitution |year=1981 |isbn=9781760020248 |page=41|publisher=Federation Press }}</ref> In the course of argument, Griffith CJ stated "The express power given to the Commonwealth Parliament to deal with foreign and inter-state trade and commerce implies a prohibition against interfering with interstate trade and commerce, and that must be remembered in dealing with the other powers given." The majority described the applicable rule in this case as "different, but ... founded upon the same principles", concluding that the power of taxation could not be exercised so as to operate as a direct interference in the internal affairs of the States.<ref>''[[R v Barger]]'' [http://www.austlii.edu.au/au/cases/cth/HCA/1908/43.pdf (1908)&nbsp;6&nbsp;CLR&nbsp;41] at p. 54 per Grifith CJ</ref>

====Isaacs & Higgins JJ in dissent====

Isaacs J strongly opposed the reserved powers doctrine, holding "There can be no derogations from the grant expressly made, except those which are expressly stated or which of necessity [[wiktionary:inhere|inhere]]. It is an inherent consequence of the division of powers between governmental authorities that neither authority is to hamper or impede the other in the exercise of their respective powers, but that doctrine has no relation to the extent of the powers themselves; it assumes the delimitation [[wiktionary:aliunde|aliunde]]. It is contrary to reason to shorten the expressly granted powers by the undefined [[wiktionary:residuum|residuum]]".<ref name="Barger Isaacs">''[[R v Barger]]'' [http://www.austlii.edu.au/au/cases/cth/HCA/1908/43.pdf (1908) 6 CLR 41] at p. 84 per Isaacs J.</ref>

Higgins J similarly rejected the reserved powers doctrine stating "To say that the Federal Parliament cannot make a law because legislation on the subject belongs to the States is rather to invert the true position. The Commonwealth has certain powers, and as to those powers it is supreme; the State has the rest. We must find what the Commonwealth powers are before we can say what the State powers are".<ref name="Barger Higgins">''[[R v Barger]]'' [http://www.austlii.edu.au/au/cases/cth/HCA/1908/43.pdf (1908) 6 CLR 41] at p. 113 per Higgins J.</ref>

=== Union Label Case (1908)===
The [[Attorney-General for NSW v Brewery Employees Union of NSW|''Union Label case'']],<ref name="Union label"/> concerned the use of [[union label]]s to indicate that goods were produced by members of a [[Trade union|union]]. Isaac Isaacs, the then [[Attorney-General for Australia|Attorney-General]], supported the Trade Marks Bill in parliament, describing the union label as a guarantee of wholesomeness, in respect of the wages, hours of labour, and health requirements that applied to the manufacture of the goods.<ref>{{cite hansard |jurisdiction=Commonwealth of Australia |house=House of Representatives |date=2 August 1905 |page=505|speaker=Isaac Isaacs|position=Attorney-General|url=http://parlinfo.aph.gov.au/parlInfo/download/hansard80/hansardr80/1905-08-02/toc_pdf/19050803_reps_2_25.pdf|title=Trade Marks Bill 1905 Second Reading Speech}}</ref> H.B. Higgins, then a member of the House of Representatives, similarly spoke in support of the union label.<ref>{{cite hansard |jurisdiction=Commonwealth of Australia |house=House of Representatives |date=5 December 1905 |page=6198|speaker=H.B. Higgins|position=member for [[Division of Northern Melbourne|Northern Melbourne]]|url=http://parlinfo.aph.gov.au/parlInfo/download/hansard80/hansardr80/1905-12-05/toc_pdf/19051205_reps_2_30.pdf|title=Trade Marks Bill 1905}}</ref> The Trade Marks Act 1905 provided that an employer could use the union label if there was a [[closed shop]] or if the union agreed.<ref name=TMAct>s 74(2) {{cite web|title=''Trade Marks Act'' 1905|date=21 December 1905 |url=https://www.legislation.gov.au/Details/C1905A00020 |publisher=Commonwealth of Australia|access-date=7 August 2016}}.</ref>

The majority, Griffiths CJ, Barton and O'Connor JJ held that the power with respect to "trade and commerce with other countries, and among the States"<ref name="Trade power">Commonwealth of Australia Constitution, [http://www.austlii.edu.au/au/legis/cth/consol_act/coaca430/s51.html section 51(i).]</ref> does not extend to the internal trade and commerce of a State. The intention of the Constitution was that the power to legislate as to internal trade and commerce was reserved to the States, to the exclusion of the Commonwealth as if section 51(i) contained words prohibiting the exercise of such powers by the Commonwealth.<ref>''[[Attorney-General for NSW v Brewery Employees Union of NSW|Union label case]]'' [http://www.austlii.edu.au/au/cases/cth/HCA/1908/94.pdf (1909) 8 CLR 330] at p. 502-3 per Griffith CJ, 529-30 per Barton J and 532 per O'Connor</ref> Isaacs and Higgins JJ dissented however their reasons do not specifically address their continued opposition to the reserved powers doctrine.

=== ''Huddart Parker v Moorehead'' (1908)===
In ''[[Huddart, Parker & Co Pty Ltd v Moorehead]]'',<ref name=Huddart/> the court was considering the ''Australian Industries Preservation Act 1906'',<ref name="1906 Act"/> commonly referred to as the [[Competition law|Anti-trust law]],<ref name="SMH 26 Sep 1908">{{cite news |url=http://nla.gov.au/nla.news-article15012085 |title=Anti-trust law. Department takes action. Alleged coal and shipping combine |newspaper=[[The Sydney Morning Herald]]  |date=26 September 1908 |page=14 |via=National Library of Australia}}</ref> which was an Act that sought to ensure [[Free market|freedom of trade and commerce]], protection from [[unfair competition]] and preventing [[price fixing]] and [[Monopoly|monopolies]]. Sections 5 and 8 of the Act were directed to conduct of foreign, trading or financial corporations,<ref name="1906 Act">{{cite web |url=https://www.legislation.gov.au/Details/C1906A00009 |title=''Australian Industries Preservation Act 1906'' (Cth) |publisher=legislation.gov.au |date=24 September 1906}}</ref> relying on the [[Section 51(xx) of the Australian Constitution|corporations power]].<ref name="Corporations power">Commonwealth of Australia Constitution, [http://www.austlii.edu.au/au/legis/cth/consol_act/coaca430/s51.html section 51(xx).]</ref> The majority, Griffith CJ, Barton & O'Connor JJ, strongly influenced by the doctrine of reserved State powers, held that the corporations power was to be construed narrowly because the trade and commerce power,<ref name="Trade power"/> did not include intrastate trade and commerce, holding "a more flagrant invasion of the spheres of the domestic law of trade and commerce and the domestic criminal law can hardly be conceived".<ref name=Huddart/>

The importance of the reserved powers doctrine does not however explain all aspects of the differences in opinion about the ambit of the corporations power, in particular the distinction between regulating a corporations relations with outside parties and regulating the internal affairs of a corporation.<ref>{{cite AustLII |litigants=The WorkChoices case |link=New South Wales v Commonwealth (2006) |year=2006 |court=HCA |num=52 |parallelcite=(2006) 229 [[Commonwealth Law Reports|CLR]] 1}} at [74].</ref>

Higgins J agreed with the majority that sections 5 and 8 of the Act were beyond power, but for reasons that were significantly different, with his Honour maintaining his rejection of the reserved powers doctrine in his dissent in ''[[R v Barger]]'',<ref name="Barger Higgins"/> and the [[Attorney-General for NSW v Brewery Employees Union of NSW|''Union label case'']].<ref name="Union label"/> Isaacs J similarly maintained his opposition in respect of the reserved powers doctrine.<ref name="Huddart"/>

===A challenge to the doctrine – ''Farey v Burvett'' (1916)===
The internal dynamic to the High Court shifted with each retirement of an existing judge and each appointment of a new judge.<ref>{{cite web |title=The High Court, The Constitution and Australian Politics – Book Launch |url=http://www.hcourt.gov.au/assets/publications/speeches/current-justices/frenchcj/frenchcj13feb2015.pdf |author=French CJ |author-link=Robert French |date=13 February 2015}}</ref> By 1916 there had been further changes to the composition of the Court, with the death of O'Connor J in 1912,<ref name="OConnor ADB"/> and his replacement by [[Frank Gavan Duffy|Gavan Duffy J]] and the expansion of the Court in 1913 with two additional judges, [[Charles Powers|Powers J]] and [[George Rich|Rich J]].<ref>[[Albert Piddington]] was initially appointed, however he resigned without ever sitting at the bench after opponents questioned his independence:- {{cite book | first=Michael |last=Roe |title =Piddington, Albert Bathurst (1862–1945) |chapter=Albert Bathurst Piddington (1862–1945) | work=[[Australian Dictionary of Biography]]|publisher =[[Australian National University]]  | chapter-url =http://www.adb.online.anu.edu.au/biogs/A110230b.htm |access-date = 25 October 2016}}</ref> These changes did not substantially shift the approach of the Court to the interpretation of the Constitution, however there was a gradual shift toward nationalism, coming not just from the changes to the court, but from a growing political centralism, the rise of the Labor party, and nationalism as a consequence of World War I.{{sfn|Dixon & Williams (eds)|loc=Ch 6 the Knox Court by Anne Twomey}}

In 1916 ''[[Farey v Burvett]]'' the Court had to consider the validity of legislation and regulations made under the defence power that fixed the maximum price for bread.<ref>{{Cite AustLII|litigants=[[Farey v Burvett]] |link=|year=1916|court=HCA|num=36|pinpoint=|parallelcite=[http://www.austlii.edu.au/au/cases/cth/HCA/1916/36.pdf (1916)&nbsp;21&nbsp;CLR&nbsp;433]}}</ref> One of the challenges for Griffith CJ and Barton J was how to accommodate the doctrine of reserved powers. If the Commonwealth Parliament was unable to regulate the brewing industry,<ref name="Petersweld"/> conditions for railway employees,<ref name="Railway servants"/> manufacturers of agricultural machinery,<ref name="Barger"/> or unfair competition by corporations,<ref name="Huddart"/> how could the Commonwealth's defence powers extend to directly fix a maximum price for bread?

Griffith CJ held that "The power to make laws with respect to defence is, of course, a paramount power, and if it comes into conflict with any reserved State rights the latter must give way."<ref name="Farey Griffith">''Farey v Burvett'' [http://www.austlii.edu.au/au/cases/cth/HCA/1916/36.pdf (1916)&nbsp;21&nbsp;CLR&nbsp;433] at pp. 442, 445–8 per Griffith CJ.</ref> Barton J distinguished between powers in peace and war, holding that "If an activity belongs solely to a State in time of peace it does not follow that it is not a means of defence for Commonwealth hands in time of war."<ref name="Farey Barton">''Farey v Burvett'' [http://www.austlii.edu.au/au/cases/cth/HCA/1916/36.pdf (1916) 21 CLR 433] at pp. 445–6 per Barton J.</ref>

Isaacs J, with whom Powers J agreed, doubted that it was permissible to give legal prominence to any one Commonwealth power, even one as necessary as defence, maintaining his previous rejection of the reserved powers doctrine,<ref name="Barger Isaacs"/> holding the limits of the defence power "are bounded only by the requirements of self-preservation. It is complete in itself, and there can be no implied reservation of any State power to abridge the express grant of a power to the Commonwealth".  His Honour acknowledged that the Commonwealth was entering a legislative area normally outside of its powers, but that this was a legitimate result of the war.<ref name="Farey Isaacs">''Farey v Burvett'' [http://www.austlii.edu.au/au/cases/cth/HCA/1916/36.pdf (1916) 21 CLR 433] at pp. 453–4, 458–60 per Isaacs J, Powers J agreeing.</ref>

Higgins J similarly maintained his rejection of the reserved powers doctrine,<ref name="Baxter Higgins">{{cite AustLII|litigants=[[Baxter v Commissioners of Taxation (NSW)]] |year=1907 |court=HCA |num=76}}; [http://www.austlii.edu.au/au/cases/cth/HCA/1907/76.pdf (1907) 21 CLR 1087] at p. 1165 per Higgins J.</ref> holding that the constitutional question was limited to the interpretation of the express defence power and rejected the suggestion that the defence power was paramount, holding "All the subjects for legislation in sec. 51 are on the same logical level: there is no hierarchy in the powers, with the power as to defence on the top."<ref name="Farey Higgins">''Farey v Burvett'' [http://www.austlii.edu.au/au/cases/cth/HCA/1916/36.pdf (1916) 21 CLR 433] at pp. 457, 460–1 per Higgins J.</ref>

Gavan Duffy & Rich JJ in their dissent placed emphasis on the powers of the States, holding that "The enumerated powers entrusted by the States to the Commonwealth are stated in language adopted after prolonged and meticulous discussion. The powers distributed and reserved were intended to enable the individual States and the federation of States to move, each in its own orbit, in a complete and permanent harmony."<ref name="Farey Gavan Duffy">''Farey v Burvett'' [http://www.austlii.edu.au/au/cases/cth/HCA/1916/36.pdf (1916) 21 CLR 433] at p. 462, 469 per Gavan Duffy & Rich JJ.</ref>

==Emphatic rejection==
More dramatic consequences flowed from the change in the composition of the Court as a result of the retirement of Griffith CJ in 1919,<ref name="Griffith ADB"/> replaced by [[Adrian Knox|Knox CJ]] and the death of Barton J in 1920,<ref name="Barton ADB"/> and his replacement by [[Hayden Starke|Starke J]]. Within months, the reserved powers doctrine was unambiguously rejected by the High Court, marking the emergence of Isaacs J as the primary force in the Knox Court.{{sfn|Dixon & Williams (eds)|loc=Ch 6 the Knox Court by Anne Twomey}}

The High Court abandoned the doctrine in the 1920 ''[[Amalgamated Society of Engineers v Adelaide Steamship Co. Ltd.|Engineers' Case]]''<ref name="Eng"/> after changes in the composition of the Court. The Court now insisted on adhering only to the language of the constitutional text read as a whole in its natural sense and in light of the circumstances in which it was made: there was to be no reading in of implications by reference to the presumed intentions of the framers. In particular, since there is no mention of "reserved State powers," only one express inter-governmental immunity (regarding property taxes: section 114), and, an express provision asserting the superiority of valid Commonwealth laws over inconsistent State laws (section 109), there was no longer any room for the doctrine previously asserted in favour of the States.

==Subsequent consideration==
In the [[Victoria v Commonwealth (1971)|''Payroll Tax case'']]<ref name="Payroll Tax">{{cite AustLII |litigants=Payroll Tax case |link=Victoria v Commonwealth (1971) |year=1971 |court=HCA |num=16 |parallelcite=(1971) 122 [[Commonwealth Law Reports|CLR]] 353}} per Windyer J at 395–6.</ref> [[Victor Windeyer|Windeyer J]] challenged the foundation of the doctrine, that the Constitution was a compact between the former colonies as independent sovereign bodies, holding that:

<blockquote>The Commonwealth Constitution was enacted at Westminster in 1900 as a product of the assent and agreement of the peoples of the Australian Colonies. It was sought by Australians, not imposed upon them. The Constitution Act itself was carefully worded so as not to be coercive. ... As an agreement of peoples, British subjects in British Colonies, and the enactment thereafter by the sovereign legislature of the British Empire of a law to give effect to their wishes, the Australian federation can be described as springing from an agreement or compact. But agreement became merged in law. The word "compact" is still appropriate but strictly only if used in a different sense-not as meaning a pact between independent parties, but as describing a compaction, a putting of separate things firmly together by force of law. The Colonies which in 1901 became States in the new Commonwealth were not before then sovereign bodies in any strict legal sense; and certainly the Constitution did not make them so. They were self-governing colonies which, when the Commonwealth came into existence as a new Dominion of the Crown, lost some of their former powers and gained no new powers. They became components of a federation, the Commonwealth of Australia. It became a nation. Its nationhood was in the course of time to be consolidated in war, by economic and commercial integration. by the unifying influence of federal law, by the decline of dependence upon British naval and military power and by a recognition and acceptance of external interests and obligations.<ref name="Payroll Tax"/></blockquote>

Despite the emphatic rejection, the States have continued to use the concept in argument against the further expansion of federal power. One of the arguments put forward by the States in the WorkChoices case,<ref name="WorkChoices">{{cite AustLII |litigants=The WorkChoices case |link=New South Wales v Commonwealth (2006) |year=2006 |court=HCA |num=52 |parallelcite=(2006) 229 [[Commonwealth Law Reports|CLR]] 1}}.</ref> was that the powers conferred by s 51 must be construed so that they do not authorise a law with respect to the prevention and settlement of industrial disputes other than by conciliation and arbitration. Victoria submitted that this limitation was based on the text and structure of s 51 and not on any doctrine of reserved powers.<ref name="WorkChoices Vic">[[New South Wales v Commonwealth (2006)|''The WorkChoices case'']] (2006) 229 [[Commonwealth Law Reports|CLR]] 1 at p 18 per [[Pamela Tate|P M Tate SC]], [[Solicitor-General of Victoria (Australia)|Solicitor-General (Vic)]].</ref> Queensland put forward another argument focused on the rejection of attempts to broaden the scope of the corporations power or to confer on the Commonwealth a general industrial relations power in 1910, 1912, 1926 and 1946.<ref name="WorkChoices Qld">[[New South Wales v Commonwealth (2006)|''The WorkChoices case'']] (2006) 229 [[Commonwealth Law Reports|CLR]] 1 at p 30 per W Sofronoff QC, Solicitor-General (Qld).</ref> Neither argument found favour with the majority, holding that there were three "[[wiktionary:insuperable|insuperable]] difficulties in arguing from the failure of a proposal for constitutional amendment to any conclusion about the Constitution's meaning", (1) the failed referendums were broader than the question the court was asked to determine, (2) the failure of referendums was much more complex than the choice of electors between clearly identified constitutional alternatives & (3) it was unclear whether the referendums were said to confirm or alter the meaning of the Constitution. On the question of reserved powers, the majority noted that "No party to these proceedings questioned the authority of the ''Engineers' Case'',<ref name="Eng"/> or the [[Strickland v Rocla Concrete Pipes Ltd|Concrete Pipes Case]],<ref name="Concrete Pipes">{{Cite AustLII|litigants=[[Strickland v Rocla Concrete Pipes Ltd]] |year=1971 |court=HCA|num=40|pinpoint=|parallelcite=(1971) 124 [[Commonwealth Law Reports|CLR]] 468}}.</ref> or the validity of the ''[[Trade Practices Act]]'' in its application to the domestic (intrastate) trade of constitutional corporations. Necessarily, however, the plaintiffs experienced difficulty in accommodating their submissions to those developments."<ref name="WorkChoices majority">{{cite AustLII |litigants=The WorkChoices case |link=New South Wales v Commonwealth (2006) |year=2006 |court=HCA |num=52}} at [50], [131]-[133] per Gleeson CJ, Gummow, Hayne, Heydon & Crennan JJ.</ref>

Aroney argues that the reserved powers doctrine is often misunderstood and that the description of it in the ''Engineers case'',<ref name=Eng/> was a mere caricature of the doctrine.<ref name="Aroney 2008">{{cite journal|last=Aroney |first=N |title=Constitutional Choices in the Work Choices Case, or What Exactly Is Wrong with the Reserved Powers Doctrine? |journal=Melbourne University Law Review |date=2008 |url=http://www.austlii.edu.au/au/journals/MelbULawRw/2008/1.html}} (2008) 32 [[Melbourne University Law Review]] 1.</ref> Properly construed the doctrine is said to rest on firmer foundations, being:
<blockquote>
# a clear and defensible account of the political origins, underlying ideas, structural features and intended purposes of the Constitution;
# a careful articulation of the grounds upon which the specific content of the powers reserved to the states can be identified — one that requires very close attention to be given to the precise terms in which federal heads of power are defined, such that what is not granted to the Commonwealth may be as significant as what is granted; and
# a sophisticated recognition that constitutional interpretation inevitably requires choices to be made and that these choices can be guided by a general orientation either to expand federal power as far as possible or to read federal power with an eye to the resulting impact on the remaining legislative powers of the states.<ref name="Aroney 2008"/></blockquote>

==See also==

* [[Constitution of Australia]]
* [[Constitutional history of Australia]]
* [[Australian constitutional law]]
* [[Federalism in Australia]]

== References ==
{{reflist|refs=}}

==Further reading==
*{{Cite book |title=The High Court, the Constitution and Australian Politics |editor1=Dixon, R |editor2=Williams, G |editor-link2=George Williams (lawyer) |publisher=Cambridge University Press |year=2015 |isbn=9781107043664 |url=https://books.google.com/books?id=KqewBgAAQBAJ |ref=CITEREFDixon & Williams (eds)}}

{{Constitution of Australia}}

[[Category:Australian constitutional law]]
[[Category:Federalism in Australia]]