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Sir Owen Dixon's Theory of Federalism

Published online by Cambridge University Press:  24 January 2025

Leslie Zines
Leslie Zines*
Affiliation:
School of General Studies, Australian National University
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Extract

The Engineers' Case was regarded by many at the time as establishing a standard of interpretation for the Constitution that did not involve aresort to implications-or at any rate made it less likely that the Court would resort to implications. The ‘implications’ with which the judgments in the Engineers’ Case were concerned involved two distinct but connected doctrines—

(a) the reserved powers of the States.

(b) the immunity of instrumentalities (Commonwealth and State).

Type
Research Article
Information
Federal Law Review , Volume 1 , Issue 2 , June 1965 , pp. 221 - 241
Copyright
Copyright © 1965 The Australian National University

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References

1 Amalgamated Society of Engineers v. Adelaide Steamship Company Limited (1920) 28 C.L.R. 129.

2 …when a State attempts to give to its legislative or executive authority an operation which, if valid,would fetter, control, or interfere with, the free exercise of the legislative or executive power of the Commonwealth, the attempt, unless expressly authorized by the Constitution, is to that extent invalid and inoperative ’. (D'Emden v. Pedder (1904) 1 C.L.R. 91, 111). In the Railway Servants' Case (1906) 4 C.L.R. 488 this doctrine was held tobe reciprocal and applicable to attempted interference by theCommonwealth with State instrumentalities.

3 (1925) 36 C.L.R. 170.

4 Ibid. 183 per Knox C.J.—‘ The Commonwealth Parliament has, in my opinion, undoubtedpower, by legislation with respect to a subject which is within the ambit of its legislative powers, to override the provisions of any State law, but inthe absence of any such enactment the State law must be given itsfull effect’.

5 L. F. Crisp in The Parliamentary Government of the Commonwealth of Australia,(2nd ed. 1954) states at p. 269—‘ Time, as it happened, was on the side of Isaacs and Higgins. By 1920 both Griffith and Barton had passed from the Bench. Butit had,perhaps, become clear even earlier that the “philosophical current in the minds of the people” was running against the narrower interpretations. The Commonwealth was becoming closer knit. The First World War speeded the process and enormously increased the prestige and practical importance of the National Parliament.’.

6 Wynes, Legislative, Executive and Judicial Powers in Australia, (1st ed. 1936) 22-24;(3rd ed. 1962) 17—‘ …the present writer has always subscribed to the view that the Engineers' Case was rightly decided and that the principlesthere established are the onlyprinciples upon which a written Constitution can properly and with any certainty be interpreted.’.

7 (1924) 40 Law Quarterly Review 202, 216.

8 (1936-1937) 56 C.L.R. 657.

9 (1947) 74 C.L.R. 508.

10 In Commonwealth v. Cigamatic Pty Limited (1962) 108 C.L.R. 372 the High Court overruled Uther's Case and so, the dissent of Dixon J. became the law.

11 (1932) 47 C.L.R. 482.

12 Australian Railways Union v. Victorian Railways Commissioners (1930) 44 C.L.R.319, 390.

13 (1936-1937) 56 C.L.R. 657, 682-683.

14 (1948-1949) 4 Res Judicatae 15, 85.

15 (1904) 1 C.L.R. 91.

16 (1904) 1 C.L.R. 585.

17 (1920) 28 C.L.R. 129, 157.

18 (1947) 74 C.L.R. 1.

19 (1947) 74 C.L.R. 508, 528.

20 Ibid. 521.

21 (1962) 108 C.L.R. 372.

22 Ibid. 377-378.

23 Commonwealth v. Bogle (1952-1953) 89 C.L.R. 229.

24 (1920) 28 C.L.R. 129, 143.

25 Melbourne Corporation v. Commonwealth (1947) 74 C.L.R. 31, 80.

26 (1947) 74 C.L.R. 1, 18.

27 (1947) 74 C.L.R. 31.

28 (1947) 74 C.L.R. 1, 22.

29 Ibid. 19.

30 (1947) 74 C.L.R. 31, 78.

31 Attorney-General of N.S. W. v. Collector of Customs for N.S. W. (1908) 5 C.L.R.818.

32 The Court held that the levying of customs was not the imposition of a tax upon property within the meaning of s. 114 of the Constitution.

33 Vacuum Oil Co. Pty Ltd v. Queensland (1934) 51 C.L.R. 108, 125.

34 It has been suggested to me that His Honour would not rely on a distinction which was based on social or economic consequences and that he would seeka more forma criterion. One possible criterion would be that in the case of customs an exclusive power is involved. This basis for distinction was rejected in the Engineers’ Case. It seems to me, however, that it is quite consistent with Sir Owen's approach to say that, as the customs power would be ineffectual if Commonwealth laws did not bind the States, the ‘ nature’ of thatpower requires that the States can be bound by Commonwealth customs laws. In O'Sullivan v. Noarlunga Meat Limited (1954) 92 C.L.R.565, 597 Fullagar J. quoted with approval the following statement of the Court in D'Emden v. Pedder (1904) 1 C.L.R. 91, 110 (approving of Marshall C.J. in M'Culloch v. Maryland 4 Wheat. 316)—‘ where any power or control is expressly granted, there is included in the grant, to the full extent of the capacity of the grantor and without special mention, every power and every control the denial of which would render the grant itself ineffective.’ Dixon C.J. concurred with Fullagar J. The same statement has been approved by Dixon C.J. on other occasions. The reasoning in the above statement would, it is submitted, be applicable to the customs power where a denial of the right to bind the States ‘ would render the grant itself ineffective’. In any case, as is shown below, Sir Owen's view that the taxation power, the prerogative and discriminatory laws are ‘exceptions’ to the general principle in the Engineers' Case is itself based on the possible consequences to the federal system of holding otherwise.

35 (1961-1962) 107 C.L.R. 46. Dixon C.J. in O'Reilly's Case referred to the Australian Coastal Shipping Commission as ‘ a corporate agency of the Crown in the right of the Commonwealth’ and said that‘ The fact that a corporation is established to carryon the line makes it no less a function carried on in the interests of the Crown in the right of the Commonwealth.’ (p. 54). It would appear, however, that His Honour was concerned with the fact that ‘Noprivate interests are involved.’ (p.55) rather than with the question whether the corporation was entitled to the privileges and immunities of the Commonwealth. It is made clear in the judgments of Menzies and Windeyer JJ. that the case was argued on the basis that the Commission was not itself a servant of the Crown so as to be entitled to the Commonwealth's privileges and immunities.

36 (1952-1953) 89 C.L.R. 229.

37 (1946) 73 C.L.R. 70.

38 [1949] V.L.R. 211.

39 (1904) 1 C.L.R. 406.

40 (1952-1953) 89 C.L.R. 229, 268.

41 (1936-1937) 56 C.L.R. 657, 696-697.

42 (1925) 36 C.L.R. 170, 213.

43 Williams J. in Bogle's Case relied on Roberts v. Ahern to give Commonwealth Hostels Limited Crown immunity.

44 (1947) 74 C.L.R. 31, 36.

45 Ibid. 40.

46 Ibid. 79.

47 Victoria v. Commonwealth (1957) 99 C.L.R. 575. Dixon C.J., McTiernan, Kitto and Taylor JJ.; Williams, Webb and Fullagar JJ. dissenting.

48 It seems clear, in any case, that he would not have regarded the ‘discrimination ’. in s. 221 (1) (a) as a justifiable one. In the course of arguing that the provision was not incidental to the taxation power, His Honour said— ‘ … if the rationale ofs. 221 (1) (a) were merely to insure that federaltaxes were paid, it might be asked why should a debt for State income tax be picked out as theindebtedness the discharge of which would lessen the tax ayer's ability to pay. Why should not other debts be postponed too? ’: Ibid. 615.

49 Ibid. 638.

50 (1957) 99 C.L.R. 575, 609. A further distinction mentioned by Dixon C.J. at p. 610 was that s. 96 did not enable the making of a ‘coercive’ law.

51 It should be added that Sir Owen has said that between his view and that of the earlier doctrine‘ there is a world of difference’ (Essendon Corporation Case (1947) 74 C.L.R. 1, 19). It is submitted, however, that the differences are as stated in the text.

52 (1947) 74 C.L.R. 31, 81.

53 Huddart Parker Limited v. Commonwealth (1931) 44 C.L.R. 492, 516.

54 State Banking Case (1947) 74 C.L.R. 31, 79-80.

55 Ibid. 82.

56 In Uther's Case (1947) 74 C.L.R. 508, 529 Dixon J. said—‘The affirmative grant of legislative power to theParliament over the subjects of bankruptcy and insolvency may authorize the enactment of laws excluding or reducing the priority of the Crown in right of the States in bankruptcy … ’.In the Second Uniform Tax Case (1957) 99 C.L.R. 575, 611-612 he referred to s. 221 (1) (b) (i) which was concerned withhe order of priority in which federal income tax was to be paid by a trustee in bankruptcy and said—‘ I would unhesitatingly uphold the validity of thisprovision as a law made in the exercise of the power conferred by s.51 (xvii.) of the Constitution to make laws with respect to bankruptcy and insolvency’.

57 (1947) 74 C.L.R. 508, 529.

58 Ibid. 520.

59 Wynes, (3rd ed. 1962) 535, suggests we are not justified in assuming that the other judges of the Court agreed with the broad language used by Fullagar J. In my opinion,however, when Dixon C.J. said he agreed with both the decision and the reasoning of Fullagar J. he was expressing agreement with thewhole tenor of the judgment. On other occasions when Dixon C.J. may not have agreed with everything said, hehas generally been more cautious in the terms he used. For example, in Norman v. Commissioner of Taxation [1964] A.L.R. 131, 139 Dixon C.J. referred to a part of a judgment of Windeyer J. and said ‘ I do not know that there is anything contained in it with which I am disposed to disagree’.

60 (1952-1953) 89 C.L.R. 229, 259-260.

61 The Concept of Law (1961).

62 Ibid. 27.

63 Kelsen, for example, regards the rules relating to contract, trusts, marriage, etc. as a means by which private individuals create norms which are backed up by state sanction. Hart attacks this type of categorisation as obscuring the ‘facility’ aspect of these rules. It might be added that Hart's analysis tends to obscure the ‘ command ’ or ‘coercion ’ side of the question which, it is submitted, is important for purposes of the present problem.

64 Federal Commissioner of Taxation v. E. O. Farley Limited (1940) 63 C.L.R. 278,308.

65 (1947) 74 C.L.R. 508, 528.

66 (1952-1953) 89 C.L.R. 229, 260.

67 Ibid. 266.

68 (1940) 63 C.L.R. 278, 308.

69 (1947) 74 C.L.R. 508, 528.