Australian Politics and Policy - Senior, 2019a

Australian Politics and Policy
historical changes that, in reality, were responsible for the shift in ‘power and
authoritytothecentreofAustraliangovernance’. 44
The first doctrine or rule developed by the High Court to help explain how
power was to be allocated between the federal and state governments was the
‘implied immunity of instrumentalities’. Inspired by US jurisprudence, this doctrine
was based on the notion that each government was sovereign and, as such, neither
the Commonwealth nor the states could tell the other what to do unless the
Constitution expressly allowed them to do so. 45 Thismeant,forexample,thatthe
states and Commonwealth could not tax each other 46 and a union representative for
a state government agency could not be registered under Commonwealth labour
laws. 47
The second interpretative tool developed by the early High Court was the
‘reserved state powers doctrine’. As explained by Blackshield and Williams, this
meant that:
the Constitution had impliedly ‘reserved’ to the States their traditional areas of
law-making power, and hence that the grants of law-making power to the
Commonwealth must be narrowly construed so as not to encroach on these
traditional powers of the States. 48
This doctrine unequivocally favoured the state governments as it was premised
ontheassumptionthatthestateswouldcontinuetobetheforuminwhichthe
majority of policy decisions were made. Combined with the implied immunity of
instrumentalities, it supported the status quo – the status quo at that time being
powerful state governments with a federal government largely limited to matters of
a genuinely national nature (as the subjects allocated to the federal government in
the Constitution were thought to be).
However,theHighCourt’searlychoicetoprotectthepowerofthestates
was not universally popular. After the appointment of further High Court justices
and the retirement or death of the three initial judges who had created the two
doctrines, a choice was made to interpret the Constitution in a very different
way. This choice is most clearly seen in the iconic case of Amalgamated Society of
Engineers v Adelaide Steamship Co. Ltd (the Engineers case). 49
In the Engineers case the High Court rejected the implied immunity of instrumentalities
and reserved state powers doctrines. Based on English/Imperial
44 Selway and Williams 2005.
45 Attorney-General (NSW) v Collector of Customs for NSW (1908) 5 CLR 818 (Steel Rails).
46 Baxter v Commissioners of Taxation (NSW) (1907) 4 CLR 1087; D’Emden v Pedder (1904) 1 CLR
91; Deakin v Webb (1904) 1 CLR 585.
47 Federated Amalgamated Government Railway and Tramway Service Association v New South
Wales Railway Traffic Employees Association (1906) 4 CLR 488 (Railway Servants’).
48 Williams, Brennan and Lynch 2018, 280.
49 Engineers (1920) 28 CLR 129.
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