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“The Commonwealth of Australia”—Constitutional Implications

Published online by Cambridge University Press:  24 January 2025

R. D. Lumb
R. D. Lumb*
Affiliation:
University of Queensland
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Abstract

In this article Dr Lumb refers to the choice of the phrase “Commonwealth of Australia” to designate the new federal body politic established on the Australian continent and surrounding islands by the Constitution Act. He then attempts to show how the term “Commonwealth” appearing alone or in association with other words is used in different ways. He identifies an “instrumental” usage pursuant to which the term is understood as applying to the federal instruments of government, and an “organic” usage under which the term is used to refer to the Australian body politic or community. This ambiguous usage has had a considerable impact on judicial interpretation of the “federal balance” as is to be seen from the Australian Assistance Plan Case. The specific problems of the Territories as “parts of the Commonwealth” are examined in the context of the relationship between relevant sections of Chapter VI and earlier Chapters of the Constitution and some opinions are expressed on the sources of constitutional power relating to the Territories.

Type
Research Article
Information
Federal Law Review , Volume 10 , Issue 3 , September 1979 , pp. 287 - 305
Copyright
Copyright © 1979 The Australian National University

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References

1 The Annotated Constitution of the Australian Commonwealth (1901) 328 ff.

2 The Constitution of the Commonwealth of Australia (2nd ed. 1910) 65 ff.

3 It is not proposed to examine the changes which have occurred affecting the Crown since 1900 except to make the following observations. The major part of Ireland is no longer under the Crown. In the light of the Abdication discussions in 1936, a change in succession would require the assent of the Member countries of the Commonwealth. It would also appear that a separate royal style and title may be adopted in relation to Her Majesty the Queen as Queen of the Commonwealth of Australia and as Queen of the constituent States of the Commonwealth of Australia. The Judiciary Act 1903 avoids difficult problems of Crown duality by using the terms “State” and “Commonwealth” although these are abbreviated expressions for the “Crown in right of a State” and “Crown in right of the Commonwealth”.

4 E.g. the Judicial Committee of the Privy Council.

5 Clause 6.

6 Moore, The Constitution of the Commonwealth of Australia (2nd ed. 1910) 66Google Scholar.

7 Id. 65-66.

8 But see the view expressed by Sir Downer, John: National Australasian Convention Debates (1891) 551-552Google Scholar.

9 Moore, op. cit. 66.

10 National Australasian Convention Debates (1891) 553. See also Debates of the Australasian Federal Convention (1897) 618.

11 Moore, op. cit. 66. See also Quick and Garran, op. cit. 311-312.

12 Quick and Garran, op. cit. 312.

13 Id. 328.

14 See Lumb, “Fundamental Law and the Processes of Constitutional Change in Australia” (1978) 9 F.L. Rev. 148, 153 ff.Google Scholar

15 Quick and Garran, op. cit. 366 ff; Moore, op. cit. 72-73.

16 Quick and Garran, op. cit. 368.

17 Moore, op. cit. 73. See also n. 60.

18 In this respect an alternative term-"political organism” is sometimes used. See Attorney-General for Victoria (ex rel. Dale) v. Commonwealth (1945) 71 C.L.R. 237,256 per Latham C.J.

19 The word “organic” might also be used as a synonym.

20 E.g. ss. 1, 61, 71.

21 S. 19. See also s. 33.

22 This raises issues which have been examined in cases such as the Engineers Case (1920) 28 C.L.R. 129; the State Banking Case (1947) 74 C.L.R. 31; and the Payroll Tax Case (1971) 122 C.L.R. 353. They are beyond the scope of this discussion. It must be noted too, that s. 106 preserves, subject to the Commonwealth Constitution, the State Constitutions.

23 S. 5l(iii).

24 S. 5l(xxiv). See also s. 5l(xxv).

25 E.g. ss. 106, 118.

26 This is its use, for example, ins. 75(iii). See Bank of New South Wales v. Commonwealth (1948) 76 C.L.R. 1, 357-358 per Dixon J.

27 E.g. in Ch. I.

28 E.g. ss. 99, 100.

29 Infra p. 295.

30 (1975) 135 C.L.R. 1.

31 Act No. 16 of 1977, ss. 4, 5, 6. See also n. 61.

32 Act No. 14 of 1977, s. 10.

33 Western Australia v. Commonwealth (1975) 134 C.L.R. 201; Queensland v.Commonwealth (1977) 16 A.L.R. 487.

34 Attorney-General for New South Wales (ex rel. McKellar) v. Commonwealth (1977) 12 A.L.R. 129.

35 It may be noted however that the Constitution Alteration (Referendums) Act 1977 (Cth) gives electors of the Territories the right to vote at referendums to amend the Constitution under s. 128.

36 Infra p. 298.

37 But the federal element is not recognised in the structuring of the Executive (although there is a practice of appointing Ministers from all the States) or of the High Court (although a practice has been instituted recently by the Commonwealth Attorney-General under which the States are consulted before an appointment to a High Court vacancy is made).

38 The Constitution of the Commonwealth of Australia (2nd ed. 1910) 67-68.

39 See generally, Rose, “Discrimination, Uniformity, and Preference--Some Aspects of the Express Constitutional Provisions” in Zines (ed.), Commentaries on the Australian Constitution (1977) 191.Google Scholar

40 However the Commonwealth Parliament has, under s. 52(i), exclusive power to make laws for all places acquired by the Commonwealth for public purposes, extending of course to places on or within the territory of a State.

41 Subject to the qualifications noted above in respect of the operation of s. 24.

42 Territorial waters are not within the “territory of a State”: New South Wales v. Commonwealth (1975) 135 C.L.R. 337.

43 (1920) 28 C.L.R. 129.

44 Melbourne Corporation v. Commonwealth (1947) 74 C.L.R. 31.

45 Victoria v. Commonwealth (1971) 122 C.L.R. 353.

46 Attorney-General for Victoria (ex rel. Dale) v. Commonwealth (1945) 71 C.L.R. 237.

47 Victoria v. Commonwealth (1975) 134 C.L.R. 338.

48 (1945) 71 C.L.R. 237, 242.

49 Id. 256.

50 Id. 273.

51 Id. 266.

52 Id. 269.

53 Id. 282 (italics added).

54 Ss. 51(xxiii) and 51(xxxiiiA).

55 (1975) 134 C.L.R. 338, 359 ff.

56 Id. 370 ff.

57 Id. 366 ff.

58 Id. 391 ff.

59 Id. 417ff.

60 Id. 374.

61 Supra p. 290. See also (1945) 71 C.L.R. 237, 256 per Latham e.J.

62 But note that while population is taken into account in determining representation under s.24, the right to vote at federal elections and the quotas for electoral divisions relate only to electors. Migrants who are not naturalised and minors are excluded in relation to such quotas.

63 (1975) 134 C.L.R. 338, 413-415.

64 Id. 401-402.

65 See Saunders, “The Development of the Commonwealth Spending Power” (1978) 11 Melbourne University Law Review 369, 406-407.Google Scholar

66 See generally Zines, “'Laws for the Government of any Territory': Section 122 of the Constitution” (1966) 2 F.L. Rev. 72; Finlay, ''The Dual Nature of the Territories Power of the Commonwealth” (1969) 43 A.L.J. 256.Google Scholar

67 (1913) 16 C.L.R. 315.

68 Id. 327.

69 Id. 330.

70 Id. 335.

71 (1915) 19 C.L.R. 629.

72 Id. 635.

73 Ibid.

74 (1915) 19 C.L.R. 629, 637.

75 Ibid.

76 (1958) 99 C.L.R. 132.

77 On which matter see also Attorney-General (W.A.); ex rel. Ansett Transport Industries (Operations) Pty Ltd v. Australian National Airlines Commission (1976) 138 C.L.R. 492.

78 (1958) 99 C.L.R. 132, 141 ff.

79 [1957] A.C. 288.

80 Id. 320; (1958) 99 C.L.R. 132, 142.

81 (1958) 99 C.L.R. 132, 142.

82 Ibid.

83 Id. 148. However, see infra p. 301.

84 Id. 151.

85 (1965) 114 C.L.R. 226.

86 Id. 247.

87 Id. 247-248.

88 Id. 270.

89 Ibid.

90 Id. 250.

91 (1971) 125 C.L.R. 591.

92 Id. 599.

93 (1976) 133 C.L.R. 603.

94 Id. 608.

95 It must be said that there are some external Territories which, because of their size, population and distance from the Australian Continent, would not be admitted to “the Commonwealth” under s. 121 i.e. to the federation of States, nor even be given comprehensive powers of self-government under s. 122. Indeed for statutory purposes the external Territories are not taken to be included in a reference to the Commonwealth unless a contrary intention appears: Acts Interpretation Act 1901 (Cth) s. 17.

96 E.g. ss. 51(xxxvii) and 51(xxxviii).

97 But, of course, with a much more restricted operation compared with that of a law made under as. 51 head of power.

98 Spratt v. Hermes (1965) 114 C.L.R. 226, 270-271 per Menzies J.; Lamshed v.Lake (1958) 99 C.L.R. 132, 143 per Dixon C.J.; contra, Capital T.V. and Appliances Pty Ltd v. Falconer (1971) 125 C.L.R. 591, 600 per Barwick C.J. See also Cowen, and Zines, Federal Jurisdiction in Australia (2nd ed. 1978) 156-158Google Scholar. Cf. Comans, “Federal and Territorial Courts” (1971) 4 F.L. Rev. 218, 219Google Scholar.

99 Spratt v. Hermes (1965) 114 C.L.R. 226, 250 per Kitto J. But it appears that s. 116 may apply: see Teori Tau v. Commonwealth (1969) 119 C.L.R. 564, 570 per Barwick C.J.; Lamshed v. Lake (1958) 99 C.L.R. 132, 143 per Dixon C.J. See also Rose, “Discrimination, Uniformity, and Preference-Some Aspects of the Express Constitutional Provisions” in Zines (ed.), Commentaries on the Australian Constitution (1977) 191, 214Google Scholar. A s. 51 law which is construed as applying to the Territories will be subject to the constitutional guarantees.

1 Lamshed v. Lake (1958) 99 C.L.R. 132. Spratt v. Hermes (1965) 114 C.L.R. 226, 276 per Windeyer J.

2 See Lumb, “The Northern Territory and Statehood” (1978) 52 A.L.J. 554.Google Scholar

3 R. v. Bernasconi (1915) 19 C.L.R. 629; Spratt v. Hermes (1965) 114 C.L.R. 226, 244; Capital T.V. and Appliances Pty Ltd v. Falconer (1971) 125 C.L.R. 591, 598 per Barwick C.J. (Subject to the rejection in the later cases of the decision in Waters v. Commonwealth (1951) 82 C.L.R. 188 denying original jurisdiction to the High Court under s. 75 in relation to acts or matters associated with a Territory.)

4 Spratt v. Hermes (1965) 114 C.L.R. 226. Cowen and Zines, op. cit. 159.

5 Spratt v. Hermes (1965) 114 C.L.R. 226. Contra, Capital T.V. and Appliances Pty Ltd v. Falconer (1971) 125 C.L.R. 591, 600 per Barwick C.J.

6 This is one of the effects of covering clause 5. This is not to deny that within the one Act or the one section there may be sections or parts referable to a s. 51 head of power and sections referable specifically to s. 122.

7 This is the view of three Justices (Knox C.J., Gavan Duffy and Higgins JJ.) out of six in Porter v. R.; ex parte Chin Man Yee (1926) 37 C.L.R. 432 and also three out of six (Taylor, Windeyer and Owen JJ.) in Spratt v. Hermes (1965) 114 C.L.R. 226. The writer would also take the view, despite the vigorous denial by Menzies J. in Capital T.V. and Appliances Pty Ltd v. Falconer (1971) 125 C.L.R. 591, 605-606, that “laws made by the Parliament” under s. 76(ii) do not encompass laws made under s. 122. The laws referred to in s. 76(ii) should be construed as referring to laws made under s. 51. But this view is only a tentative one for it is possible that a s. 122 law operating within the area of the federated States has “federal” implications. See Attorney-General (W.A.); ex rel. Ansett Transport Industries (Operations) Pty Ltd v. Australian National Airlines Commission (1976) 138 C.L.R. 492, 513-514 per Stephen J. See also Federal Capital Commission v. Laristan Building and Investment Co. Pty Ltd (1929) 42 C.L.R. 582, 585 per Dixon J. Cowen and Zines, op. cit. 161-162.

8 Isaacs, Rich and Starke JJ. in Porter's Case (1926) 37 C.L.R. 432, 440-443, 448; Barwick C.J., Kitto and Menzies JJ. in Spratt v. Hermes (1965) 114 C.L.R. 226, 248, 265. See also Cowen and Zines, op. cit. 164. It should also be pointed out that s. 40(2)(a) and s. 40(3) of the Judiciary Act 1903 (Cth) appear to be founded on the assumption that original jurisdiction (in terms of the removal of a cause from a Territory court) can be conferred. The validity of these provisions in relation to removal of causes to the High Court from a Territory Supreme Court (irrespective of the matters comprised within the cause) must be in some doubt unless they can be read down so as to encompass only those causes pertaining to matters within the original jurisdiction of the High Court.

9 Porter v. R.; ex parte Chin Man Yee (1926) 37 C.L.R. 432. A persuasive reason for distinguishing appellate and original jurisdiction is given by Windeyer J. in Spratt v. Hermes (1965) 114 C.L.R. 226, 277. A contrary stance is taken by Cowen and Zines, op. cit. 164-165.

10 (1975) 132 C.L.R. 164.

11 Id. 169.

12 See Northern Territory (Self Government) Act 1978, s. 31 (Cth).

13 The status of the Australian Capital Territory is also unique. While not subject to the admission procedures of s. 121 it is at the “heart” of the federal system because of its association with the Seat of Government. This entails, inter alia, being the locale where the “instrumental” Commonwealth is primarily situated.