By Talitha Dall
“It appears no exaggeration to say that the combined effect of s 51(xxix) and s 109 is that the Commonwealth can annihilate State legislative power in virtually every respect”
EXPANSION OF THE NATIONAL GOVERNMENT
Gibbs’ bold assertion that external affairs power is likely to be the death of the legislative power of the States has been the subject of much scholarly debate.  The truth is that since the 1920s, Commonwealth legislative power has increased considerably, to the extent that the Commonwealth can legislate on almost any subject. This increase of power has transpired at the expense of the legislative power of the States through a variety of means. Broad interpretation of the heads of power has given the Commonwealth powers that the Constitution never intended it to have. In contrast to the States’ self-governing origins, the High Court has seen fit to dismiss the concept of balance between the State and Federal Governments, resulting in impoverished States and an ineffective, costly federal system. In particular, the High Court has used the strategic combination of section 51(xxix) external affairs power and section 109 to assume large portions of State legislative territory for the expansion of the national government. What remains of the Australian Federation is a hollow shell of what was intended. Although many solutions to this dilemma have been proposed in the past, it appears that the only reasonable solution is for the High Court to apply a more originalist interpretation to the Constitution. This paper seeks to examine the extent of the Commonwealth’s use of external affairs in conjunction with section 109 and analyse the practicality of the various solutions.
EXTERNAL AFFAIRS: ‘A GREAT BATTLEGROUND’
Expansive, literalist interpretation of external affairs has resulted in it becoming an effective weapon for securing Commonwealth legislative ground to the detriment of the States. Decades ago, Quick and Garran accurately characterised the Commonwealth’s external affairs power as a ‘great constitutional battleground’. Their observation has been nothing if not accurate, but perhaps not for the reason they supposed. Looking through the lens of the British Empire, Quick and Garran anticipated that s51 would come into conflict with the legislative territory of the British Empire. This is the reason they concluded that external affairs ‘cannot be construed in the wide and far-reaching manner suggested’ and ‘The expression “External Affairs” is apparently a very comprehensive one, but it has obvious limitations.’ They could never have anticipated that the interpretation methods employed by the High Court would ultimately leave the country a federation in name only. Since the Amalgamated Society of Engineers v Adelaide Steamship Co Ltd (‘Engineers’) the High Court has frequently interpreted the s51 heads of power in isolation from the rest of the document and since then has typically attributed to it as broad a meaning as possible. In R v Barger, Justice Isaacs contended that the Commonwealth should be treated essentially as a unitary State without limits on its scope of power. Aroney explains: ‘When faced with a choice, a majority of the Court have usually adopted the widest possible interpretation of federal power consistent with the language used to define each head of power.’ O’Connor J further expounded,
it must always be remembered that we are interpreting a Constitution broad and general in its terms… for that reason, where the question is whether the Constitution has used an expression in the wider or in the narrower sense, Court should… always lean to the broader interpretation…
In contrast, Justice Wilson contended that the Commonwealth’s ability to legislate regarding s51 has been given an interpretation ‘which… proceeds without regard to the context of par.(xxix) in s.51 and to the federal character of the Constitution.’ This is true. Through the conventions, the successive drafts of the Constitution and through their subsequent writings, the drafters of the Constitution made their intent clear. Quick and Garran were of the opinion that external affairs,
must be restricted to matters in which political influence may be exercised, or negotiation and intercourse conducted, between the Government of the Commonwealth and the Governments of countries outside the limits of the Commonwealth.
The High Court’s centralist approach to interpreting the Constitution and excluding the original intention of the drafters assumes that the utility of its interpretation lies in its objectivity. However far from being objective, the interpretation has been biased, cementing the Commonwealth’s supremacy over the States. The High Court’s decision to exclude the historical evidence pertaining to the original intent and motivation of the drafters, especially in relating to section 51(xxix), has resulted in increasing centralisation and the slow but steady erosion of federal system.
THE SOVEREIGN STATES
The power and supremacy of the States predates that of the Commonwealth. When the Australian federation came into effect in 1901, the powers granted to the Commonwealth were comparatively few and limited to specific legislative territory. What was not granted to the Commonwealth was reserved to the States. Henry Parks, Premier of New South Wales, stated,
the power and privileges and territorial rights of the several existing colonies shall remain intact, except in respect to such surrenders as may be agreed upon as necessary and incidental to the power and authority of the National Federal Government.
The future South Australian Premier, Charles Kingston, concurred with Parkes when he said,
[W]e are dealing with autonomous States, who have long enjoyed the blessing of self-government, and who should not be asked – and who, if asked, would not be likely to accede to the request – to sacrifice any of their existing powers other than those which it is absolutely necessary should be surrendered in the national interest.
This understanding of State rights was reflected in the Constitution in s 106 and s 107, and led to the development of two major doctrines, namely the ‘State reserved powers’ and the ‘immunity of instrumentalities’. The presumption of these doctrines was that interpretation of the Constitution necessarily included consideration of the States pre-existing powers; that the States were sovereign in their spheres and that the States were more or less immune from Commonwealth interference. Early in the century these doctrines ‘gave the Court a reason to adopt an interpretation that, as far as possible, left the reserved powers of the States intact.’ The doctrine of State reserved powers prevailed until the 1920s, when the interpretation of the Commonwealth’s heads of power expanded.
THE STATES: THE SICK MAN OF FEDERATION
The broad interpretation of external affairs power, when coupled with s109 and the lack of regard for reserved powers doctrine has devastated the legislative power of the States. The High Court, instead of protecting the balance between State and Federal powers as prescribed in the Constitution, has rejected the idea that it has any responsibility to ensure ‘federal balance’. The concept of reserved powers has been vilified as an archaic consideration of the past. The consequence of this has seen the States established as (to commandeer a phrase from history), the ‘sick man of Federation’. The High Court now holds that ‘external affairs’ can legitimately be used to legislate on subjects as wide ranging as the environment and industrial relations, through to racial discrimination.
An example of the High Court’s interpretation of s51(xxix) in conjunction with s109 is Koowarta v Bjelke-Petersen. The High Court concluded that racial discrimination was a subject of international concern arising from the Convention on the Elimination of All Forms of Racial Discrimination (1966), and held it was therefore appropriate for the Commonwealth to apply its external affairs power.
The matter was a State one, however the High Court found the State to be inconsistent with federal law. Through the combination of external affairs power and s109, the Commonwealth took the legislative territory from the State. The minority dissented, observing that racial discrimination was not international in nature and therefore not one to which the Commonwealth could apply legislation under external affairs.
This case highlighted how differing interpretations of the Constitution could have such large ramifications for the State. In his dissent, Chief Justice Gibbs bemoaned the High Court’s lack of attention to the fact the Australian Constitution is federal in nature, concluding:
If the Parliament is empowered to make laws to carry into effect within Australia any treaty which the Governor-General may make, the result will be that the executive can, by its own act, determine the scope of Commonwealth power. Moreover… there would be no field of power which the Commonwealth could not invade, and the federal balance achieved by the Constitution could be entirely destroyed.
The legislative powers of the States are still further decimated by the principle of ‘covering the field’. This is a complication arising from a centralist interpretation of the combination of the heads of power and s109, which assumes that the Commonwealth’s law must be the only law existing on the subject. According to Aroney, ‘if the Commonwealth considers it politically and practically advisable it can nullify the operation of State laws on a very wide range of topics, with significant implications for the effective autonomy of the States.’
Gibbs acknowledged that covering the field has been most useful in ‘ensuring the predominance of Commonwealth power at the expense of that of the States.’ One of the consequences of adopting the covering the field test has been the undermining of the ‘immunity of instrumentalities’ which afforded the States protection from interfering Commonwealth laws. This has confirmed the primacy of the Commonwealth over the States and contributed significantly to the decline of federalism in Australia.
FEDERATION: THE CASUALTY
The consequence of the erosion of State powers is that the protections afforded by Federation are being systematically abrogated. According to Gibbs, the greatest threat to the federal system lies in the High Court’s increasing use of the external affairs power. In undermining State rights, the High Court has incrementally created a hollow, flaccid Federation that is neither effective or useful. Rather than enjoying the freedoms and protection offered by Federation as it was originally intended, Australians feel rejected and isolated from their government.
The ‘Lucky Country’ is slowly disintegrating under the costly burden of bureaucracy. The High Court, with its poor interpretation, has ‘denied the people the advantages of competitive federalism and increased the burden, cost and remoteness ofgovernment… push[ing] the constitutional order to the brink of breakdown.’
The Australian people do not want a big government, as indicated by the volume of failed referendums to increase Commonwealth power. Professor Walker postulates that freedoms in Australia are under increasing threat, not in the least due to decades of pro-centralist High Court decisions. He further concludes that the people of Australia have ‘much to fear from any further concentration of government power.’
Some authors have likened the High Court’s approach to Federation as a bad joke; expounding on its inconsistent interpretation depending on the subject matter and its ability to extend Commonwealth power. Walker sarcastically concurs ‘the present state of constitutional interpretation calls to mind Justice Stewart’s comment… “The sole consistency that I can find is… the Government always wins.”’
THE REMEDY: CURING THE SICK MAN
We have seen that, with the use of expanding external affairs powers, the Commonwealth has accrued substantial power to regulate or affect the regulation on almost any subject material. The question now is: ‘Where do we go from here’? There are several possibilities. Isaacs J commentating on abuse of powers, described the most fitting remedy is for the people ‘to resent and reverse what may be done.’ This is a somewhat optimistic view of the capacity of the people to reverse a decision handed down by the High Court, especially if the democratic process is undermined through judicial activism. Perhaps a more moderate and practical view is one put forward by Aroney:
…the Court should adopt an interpretation that is most in harmony with its federal origins, structure and purposes – an approach which need not involve the assumption of some ‘static equilibrium’ but which is rather a result of the Court adopting an interpretation which in its judgement is most in harmony with, and will best give effect to, the Constitution’s fundamental structures and underlying purposes.
Walker also suggests that the High Court ‘usefully revisit’ its immoderate interpretation of external affairs. Gibbs’ proposed solution is to amend the Constitution, thereby curtailing the reach of the Commonwealth and restoring powers to the States. Of course, this seems unlikely given that amending the Constitution can only be done under s128 by referendum – called by the Commonwealth. The only credible option is for the High Court to adopt a more originalist interpretation to the Constitution; for it to ‘be construed in the light of its history.’ For now, it seems unlikely that the High Court will amend the battlefield to make it a fair fight. In the worst case scenario, the residuary legislative powers of the States could eroded to the point of their ‘annihilation’ altogether. And perhaps on the death certificate in the scrawl of the High Court, the cause of death will read: Section 51(xxix) external affairs.
 Harry Gibbs, ‘The Decline of Federalism?’ (1994) 18(1) University of Queensland Law Journal 5.
 Ibid, 5.
 Section 109 Inconsistency of laws states ‘When a law of a State is inconsistent with a law of the Commonwealth, the latter shall prevail, and the former shall, to the extent of the inconsistency, be invalid.’
 Harry Gibbs, ‘The Decline of Federalism?’ (1994) 18(1) University of Queensland Law Journal 2.
 John Quick and Robert Garran, The Annotated Constitution of The Australian Commonwealth (Websdale, Shoosmith, 1901) 631.
 Ibid, 631.
 Almalgamated Society of Engineers v Adelaide Steamship Co Ltd (1920) 28 CLR 129.
 Jumbunna Coal Mine, No Liability v Victorian Coal Miners’ Association (1908) 6 CLR 309, 367-8 (O’Connor J).
 (1908) 6 CLR 41.
 R v Barger (1908) 6 CLR 41, 85.
 Aroney, Nicholas et al, The Constitution of The Commonwealth of Australia (CUP, 2015) 135.
 Jumbunna Coal Mine, No Liability v Victorian Coal Miners’ Association (1908) 6 CLR 309, 367-8.
 Richardson v Forestry Commission (1988) 164 CLR 261, 298.
 John Quick and Robert Garran, The Annotated Constitution of The Australian Commonwealth (Websdale, Shoosmith, 1901) 631.
 Aroney, above n 11, 101.
 Ibid, 153.
 Section 106 Saving of Constitutions states ‘The Constitution of each State of the Commonwealth shall, subject to this Constitution, continue as at the establishment of the Commonwealth, or as at the admission or establishment of the State, as the case may be, until altered in accordance with the Constitution of the State.’
 Section 107 Saving of Power of State Parliaments states ‘Every power of the Parliament of a Colony which has become or becomes a State, shall, unless it is by this Constitution exclusively vested in the Parliament of the Commonwealth or withdrawn from the Parliament of the State, continue as at the establishment of the Commonwealth, or as at the admission or establishment of the State, as the case may be.’
 Aroney, above n 11, 115.
 Ibid, 119.
 New South Wales v Commonwealth (2006) 229 CLR 1, 22.
 (1982) 153 CLR 168.
 Elise Edson, ‘Section 51(xxix) of the Australian Constitution and “Matters of International Concern”: Is There Anything to Be Concerned About?’ (2008) 29(2) Adelaide Law Review 269, 275-6.
 Koowarta v Bjelke-Petersen (1982) 153 CLR 168.
 Aroney, above n 11, 223.
 Harry Gibbs, ‘The Decline of Federalism?’ (1994) 18(1) University of Queensland Law Journal 3.
 Ibid, 7.
 Geoffrey Walker, ‘The Seven Pillars of Centralism: Federalism and The Engineers’ Case’ (2002) 14 The Samuel Griffith Society 30.
 Geoffrey Walker, ‘Ten Advantages of a Federal Constitution’ (1998) 10 The Samuel Griffith Society 11.
 James Allan and Nicholas Aroney, ‘An Uncommon Court: How the High Court of Australia Has Undermined Australian Federalism’ (2008) 30(2) Sydney Law Review 50.
 Geoffrey Walker, ‘The Seven Pillars of Centralism: Federalism and The Engineers’ Case’ (2002) 14 The Samuel Griffith Society 30, quoting United States v. Von’s Grocery Co, (1966) 384 US 270, 301.
 Almalgamated Society of Engineers v Adelaide Steamship Co Ltd (1920) 28 CLR 129, 151-2.
 Aroney, Nicholas et al, The Constitution of The Commonwealth of Australia (CUP, 2015) 180-1 citing New South Wales v Commonwealth (2006) 229 CLR 1, 335, 317-18. (Callinan J).
Walker, above n 29, 1.
Gibbs, above n 26, 7-8.
 New South Wales v Commonwealth (2006) 229 CLR 1, 772 (Callinan J).
Gibbs, above n 26, 5.