Buffalo Law Review Buffalo Law Review

Volume 4 Number 2 Article 2

1-1-1955

A Comparison of the Constitutions of Australia and the United A Comparison of the Constitutions of Australia and the United

States States

Zelman Cowan Harvard Law School

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A COMPARISON OF THE CONSTITUTIONS OF AUSTRALIAAND THE UNITED STATES *

ZELMAN COWAN**

The Commonwealth of Australia celebrated its fiftieth birth-day only three years ago. It came into existence in January 1901under the terms of the Commonwealth of Australia ConstitutionAct, which was a statute of the United Kingdom Parliament. Itsorigin in a British Act of Parliament1 did not mean that thedriving force for the establishment of the federation came fromoutside Australia. During the last decade of the nineteenth cen-tury, there had been considerable activity in Australia in supportof the federal movement. A national convention met at Sydneyin 1891 and approved a draft constitution. After a lapse of someyears, another convention met in 1897-8, successively in Adelaide,Sydney and Melbourne. At this assembly, the earlier draft con-stitution was revised. After submission to popular referenda inthe various States,2 and after minor modifications, this draft wassubmitted to the United Kingdom Parliament and emerged as theCommonwealth of Australia Constitution Act.

There are six States within the Australian Commonwealth:Queensland, New South Wales, Victoria, Tasmania, South Aus-tralia and Western Australia. These States had been grantedparliamentary and governmental institutions on the British modelduring the course of the nineteenth century. During the secondhalf of that century there had been some moves towards closerassociation. These earlier moves were Australasian rather thanAustralian, as it was contemplated that New Zealand and Fijimight participate. A loose association was established by theFederal Council of Australasia Act, 1885. The organization pos-sessed very limited powers and was much weakened by theabstention of New South Wales, the principal State. It was aweaker counterpart of the organization established by the Ameri-can Articles of Confederation. It lingered on until its existencewas formally terminated on the establishment of the Common-wealth.'

The Constitution of the United States was born in the after-math of revolution and war. No comparable pressures attended

• Delivered as one of the 1954 James McCormick Mitchell Lectures.• Visiting Professor, Harvard Law School, 1953-54; Professor of Public Law

and Dean, University of Melbourne, Australia, Law School since 1951.1. Likewise, the Canadian Constitution has its legal source in a United Kingdom

Act, the British North America Act, originally enacted in 1867.2. Western Australia approved the Constitution at a later date than the other

states.3. The Commonwealth of Australia Constitution Act, section 6, formally repealed

the Federal Council of Australasia Act.

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the founding of the Australian Commonwealth. Various factorsencouraged the federal movement. It was felt that a unified de-fence policy was desirable. German moves in New Guinea hadcaused alarm, and there was some fear of possible hostile actionby other foreign powers. A British military expert had reportedadversely on the state of colonial defences and had recommendedgreater inter-colonial cooperation and coordination. Differencesbetween states on trade policy (as between free trade and protec-tionist economies) made it desirable to seek resolution on thebasis of a common and nation-wide policy. The federal movementalso reflected the growth of an Australian nationalism.

In devising a federal form of government the Australianfounding fathers preferred the American to the Canadian modelin the sense that specific powers were vested in the central andnational government, while the residue of powers remained withthe States. The Tenth Amendment found its counterpart inSections 106 and 107 of the Commonwealth Constitution whichprovided that the Constitution of each State should, subject tothe federal Constitution, continue to operate, and that every powerof a State parliament should continue unless it was exclusivelyvested by the federal Constitution in the Commonwealth, or waswithdrawn from the State parliament. The Australian foundingfathers were, apart from a handful of unificationists, anxious topreserve State powers and structures as far as possible. This wasreflected in what was perhaps the principal matter for debatein the constitutional conventions, the structure and powers of theSenate which was conceived as a protector of State interests. Itwas reflected also in other provisions of the Constitution. Section51 (iii) authorized the Commonwealth parliament to make lawswith respect to bounties on the production or export of goods, butso that such bounties should be uniform throughout the Common-wealth, Section 99 provided that the Commonwealth should notby any law or regulation of trade, commerce or revenue give pref-erence to one State or any part thereof over a.nother State or anypart thereof. Such provisions argued a fear that Commonwealthmachinery might be put to uses which would prejudice Stateinterests. No heed was given to the consideration, obvious today,that formal equality as enjoined by such provisions might workagainst real or meaningful equality. It is perhaps also worthrecalling that one of the catchcries which invited popular supportfor the proposed federal Constitution was the claim that it (thenew National Government) would cost the citizens of the variousstates no more than the price of a dog license !

The debates in the conventions of the eighteen nineties showclearly enough that considerable attention was paid to American

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precedents, and very little if any to the form of the CanadianConstitution. The Canadian founding fathers were much moreconcerned with the importance of establishing a strong nationalgovernment than their Australian counterparts.4 However, theAustralian and the Canadian constitutions have some commonelements, in respect of which they differ from the United StatesConstitution. Both Canada and Australia established their federa-tidns within the British Empire, and their British origin naturallyinvolved institutional differences, for example, in relation to theCrown. Again, the Canadian Constitution was enacted in 1867 andthe Australian in 1900, when the conduct of the external affairsof both countries was still firmly in United Kingdom hands. Acomparison of treaty and treaty enforcement powers in the twoBritish federations on the one hand and in the United StatesConstitution on the other reveals quite striking differences, stem-ming from the colonial origins of the two British federations.With the rapid change in the international status of Australia andCanada, this has given rise to problems which will be consideredat a later stage. For the present, we shall be concerned with someof the more important parallels and divergencies in the Americanand Australian Constitutions.

II

We start with a major difference in the two Constitutions.This was stated by an eminent English lawyer in the course ofthe debate on the Commonwealth of Australia Constitution billin the British House of Commons:

The difference between the Constitution which this Bill pro-poses to set up and the Constitution of the -United States isenormous and fundamenal. This Bill is permeated through andthrough with the spirit of the greatest institution which existsin the Empire. . . . I mean the institution of responsiblegovernment under which the Executive is directly responsibleto-nay almost the creature of-the Legislature. That is not soin America . . .. Therefore what you have here is nothingaldn to the Constitution of the United States except in its mostsuperficial features.5

This is overdrawn, but it does serve to point up an essentialdifference. Responsible government in the British sense, that is,

4. In a judgment of the Privy Council, Attorney-General for the Commonwealthof Australia v. Colonial Sugar Refining Co., Ltd., [1941] A. C. 237, 252-253, Lord Hal-dane spoke of the Australian and United States Constitutions as federal in "the strict senseof the term," because the residue of powers was left with the States. Since this wasnot the case in Canada, the conclusion drawn by the judge was that that Constitutionwas federal only in a "loose sense." From whence the judge derived this definition ofthe federal principle is nowhere explicitly stated!

5. 83 PARLIAMENTARY DEBATES (4th Series) 98, 99 (1900).

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the notion of the executive as a parliamentary executive depend-ent upon the control of a parliamentary majority, was already wellestablished in the Australian States in pre-federation days. Whenthe founding fathers came to fashion the Commonwealth Consti-tution, it is not surprising that they made similar provision forthe new national government. What is more remarkable is thatin the 1891 draft Constitution (which was prepared by Griffithwho later became Chief Justice of Queensland, and, or federation,first Chief Justice of the High Court of Australia) it was pro-vided that Ministers of State might, not must, be members ofeither House of the legislature. 1891 was a time of instabilityand recurrent crisis in State governments, and this suggested tosome that the new national government might possibly departfrom the settled British pattern. But by 1897-8, the local politicalsituation had become more stable. The 1891 draft was amended,and finally appeared in Section 64 of the Constitution in the formof a mandatory requirement that Ministers must be members ofeither house of the legislature. It is assumed though it is notexpressly stated that such ministers shall be responsible to theparliament.

The United States Constitution, to the contrary, expresslyprohibits persons holding office under the United States frombeing members of Congress during their tenure of office. In thissense the doctrine of the separation of powers is firmly establishedin the United States.

It has been aptly observed' that the linking of parliamentary-executive government (responsible government) to the federalstructure in the Australian Constitution has produced a uniquesynthesis of British and American Constitutional ideas and prac-tice. This raises a question as to the extent to which the doctrineof the separation of powers is otherwise modified by the existenceof responsible government. The doctrine held great appeal forthe American draftsmen, and it appears to be enshrined in thoseprovisions of the Constitution which separately assign legislative,executive and judicial power. In this formal respect, theAustralian Constitution closely follows the American pattern.7

It is interesting to note that there are only two decisions ofthe Supreme Court of the United States in which a purported vest-ing of power by Congress in the executive has been held unconsti-tutional on grounds of improper delegation. Both arose out of

6. SAwm, THE COMMONWEALTH OF AUSTRALIA 38 (Palon, ed. 1952).7. Cf. U. S. CONST. Art. I, § 1, Art. II, § 1, Art. III, § 1; COMMONWEALTH CONST.

§§ 1, 61, 71.

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New Deal legislation." In Schechter Poultry Corporation v. U. S.,Congress had authorized the President to promulgate codes offair competition on a finding that a code would tend to effectuatethe policy of the Act. The Supreme Court invalidated the Acton the ground that "Here . . . is an attempted delegation notconfined to any single act nor to any class or group of acts identi-fied or described by reference to a standard."9 The unconstitu-tional element in the legislation lay in its failure to prescribe asufficient standard to which the executive might refer in exercisingthe powers conferred by Congress. However, subsequent delega-tions in wide terms have been upheld upon the footing that suffi-ciently clear standards have been prescribed. In U. S. v. RockRoyal Cooperative,° broad delegated powers with respect toagricultural marketing were sustained on this basis over a sharpdissent by Roberts J. directed precisely to the absence of a suffi-cient standard. In Yakus v. U. S.,11 powers were granted to theOPA to stabilize prices and to prevent speculative, abnormal, andunwarranted increases in prices and rents. The administratorwas directed to make price regulations which in his judgmentwere generally fair and equitable and would effectuate the pur-poses of the Act. The Supreme Court found that adequate stand-ards were prescribed by Congress and upheld the constitutionalityof the delegation.

It is quite clear that there is a very wide area of permissibledelegation of legislative power to the executive. On a review ofthe recent cases, it has been remarked by Professor Jaffe thatit can "undoubtedly . . . be argued that realistically Schechterhas been put in the museum of constitutional history,"" and Pro-fessor Corwin in his lectures on Total War and the Constitutionhas spoken of the doctrine of separation of powers in this contextas "shattered' ' 8 and as nothing more than "a smoothly trans-mitted platitude. "4

At the same time, the cases stand as authority for the propo-sition that, lacking a sufficient prescription of standards, a delega-tion will violate the Constitution. Jaffe has suggested that this isnot necessarily an academic abstraction; even though the Court

8. Panama Refining Co. v. Ryan, 293 U. S. 388 (1935), Schechter Poultry Corp. V.United States, 295 U. S. 495 (1935) ; see Jaffe, An Essay on Delegation of LegislativePower, 47 COL. L. R. 359, 361 (1947).

9. 295 U. S. 495, 552 (1935).10. 307 U. S. 533 (1939).11. 321 U. S. 414 (1944).12. JAFFE, suPra note 8. at 581.13. ComviN, ToTAL WAR AND THE CONSTrruTION 174 (1946).14. Id. at 40.

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will concede wide latitude, it may still be possible to envisage asituation in which the doctrine of the Schechter case might besuccessfully invoked. 15

As the Australian cases stand, it is clear that a delegation oflegislative power to the executive would not be invalidated on theground that it offends against any doctrine of the separation ofpowers. In Victorian Stevedoring and General Contracting Co.and Meakes v. Dignan, 6 such a challenge was unsuccessfullydirected against a provision in the Transport Workers' Act whichauthorized the executive to make regulations for the employmentof transport workers. Such regulations were to have effect not-withstanding anything in any other Act. Dixon J. noted the verysimilar general distribution of powers in the United States andAustralian constitutions as between legislature, executive andjudiciary. On the assumption that the Act authorised a delega-tion of legislative power, he nevertheless concluded that this wasnot a valid constitutional objection.

The existence in Parliament of power to authorize subordinatelegislation may be ascribed to a conception of that legislativepower which depends less upon juristic analysis and perhapsmore upon the history and usages of British legislation and thetheories of English law.lt

Evatt J. observed that responsible government was part of theAustralian Constitutional structure and that this necessarily in-volved a close relationship between the executive and legislativebranches of government.

The statesmen and lawyers concerned in the framing of theAustralian Constitution, when they treated of 'legislative power'in relation to the self-governing colonies, had in view an au-thority which, over a limited area or subject matter, resembledthat of the British Parliament. Such authority always ex-tended beyond the issue by Parliament of such commands byany person or authority it chose to select or create. 'Legislativepower' connoted the power to deposit or delegate legislativepower because this was implied in the idea of parliamentarysovereignty itself.18

A further attack on the validity of very wide delegated powerswas struck down by the High Court in Wishart v. Fraser.9 Thatcase involved legislation enacted early in the Second World Warwhich authorised the executive to make regulations for securingthe public safety and the defence of the Commonwealth and for

15. JAFFE, supra note 8, at 581.16. 46 C. L. R. 73 (1931).17. Id. at 101-121.18. Id. at 117-118.19. 64 C. L. R. 470 (1941).

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prescribing all matters which are necessary or convenient to beproscribed for the more effectual prosecution of the war. It wasunsuccessfully argued that the effect of this legislation was toturn over the whole defence power of the Commonwealth to theexecutive. That was the practical effect of the legislation, andthis power was used extensively throughout the war to providethe substantial legislative framework within which the Common-wealth prosecuted the war.

It is to be noted that arguments basedupon the unconstitution-ality of such delegation were rejected in limine on the footing thatwithin a framework of responsible government and of Britishconstitutional and institutional history, this particular aspect ofthe doctrine of the separation of powers had no place. The Courtin Dignan's Case, however, observed that excessively wide delega-tion might invite a declaration of unconstitutionality upon a dif-ferent ground: that the scope of a delegation of power might be sowide and uncertain that the law in question could not properly besubsumed under any specific head of power vested in the Com-monwealth Parliament. In view of the wide delegations upheldby the Court, it would seem that the case in which such a principlecould be successfully invoked would-be very unusual.

The doctrine of the separation of powers as between executiveand legislature has given rise to other problems within the UnitedStates. Corwin has shown how a vague and ill-defined practiceof presidential action independent of congressional authorizationemerged, particularly in the period immediately preceding PearlHarbour and in the years which followed. 0 The constitutionaltheory which justified such action was obscure and not clearly ar-ticulated. It has been suggested that it may have drawn supportfrom the commander-in-chief clause2' and from the presidentialresponsibility for the faithful execution of the law.22

The Supreme Court elected 2s to consider this question inYoungstown Steel and Tube Co. v. Sawyer.2 4 Following the break-down of negotiations in a steel industry dispute, President Tru-man without express statutory authority, directed seizure of thesteel mills by the Secretary of Commerce. The presidential orderrecited the great importance of continued steel production to thedefehce program of the country and to the discharge of UnitedStates international obligations. Seizure under this order was

20. CoRWIN, op. cit. supra note 13, at 16 et seq., 144 et seq.21. Art. II §2.22. Art. II § 4.23. Freund, The Supreme Court, 1951 Term, 66 HARV. L. REv. 89-95 (1952).24. 343 U. S. 579 (1952). See Kaufer, The Steel Seizure Case: Congress, the

President and the Supreme Court, 59 MicH. L. REv. 141 (1952).

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contested by the steel companies, and the Supreme Court by amajority held it unconstitutional. There was considerable di-versity of opinion among the majority judges but Black J. speak-ing for the Court, and Douglas J., were quite explicit on the pointthat a violation of the doctrine of the separation of powers wasinvolved. Presidential action in this case involved an intrusioninto the legislative field, for Congress alone, in these circum-stances, could authorize seizure.

The question whether such executive action would be constitu-tional in Australia is, in a sense, a barren one. The framework ofresponsible government would make it very unlikely that executiveaction would be taken without security of legislative support orauthorization. Perhaps it should be recorded here that in theevents leading up to the Steel Case, the President invited Con-gress to take contrary action if it so desired, but received no re-sponse. As a matter of law, it appears to be the law that if theexecutive elected to take such action in Australia without legisla-tive authorization, it would be unconstitutional. This raises somedifficult questions about the scope of the exercise of executivepower under the royal prerogative. There is some support injudicial dicta for the proposition that the prerogative wouldpermit the Commonwealth executive in the course of militaryoperations in time of war to seize property even without compen-sation.25 The broadest proposition which emerges from the casesis that in time of war, the existence of national danger vests au-thority in the executive to do things which would not otherwisebe justifiable. The validity of such executive action depends ingeneral upon a demonstration that the action was necessary forthe national security, and that the executive acted on that basis.2

This would not provide constitutional support for the execu-tive seizure in the Steel Case under Australian law. The appre-hended emergency would not have attracted power. The limitson the exercise of independent executive power raise questionsbearing upon the extent of the prerogative of the Crown. Theselimits have not been worked out by reference to any general ortheoretical considerations involving the doctrine of separation ofpowers; they were hammered out rather in the great seventeenthcentury struggles between Crown and Parliament.

In certain respects, executive powers are, as a matter of law,wider in Australia than in the United States. Under Art. 1, Sec. 8,

25. Johnson, Fear & Kingham v. The Commonwealth, 67 C. L. R. 314 (1943), perLatham C. 3. and Starke 3.

26. Commonwealth v. Colonial Combing, Spinning and Weaving Co., Ltd., 31C. L. R. 421, 442 (1922), per Isaacs J. See WYNEs, LEGISLATIVE AND EXECUTIVE POWERSIN AUSTRALIA 186 et seq. (1936).

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power to declare war is vested in Congress, while under the pre-rogative such power is vested in the Crown. Likewise under theprerogative, the treaty making power is vested in the executive,wvhile the comparable presidential power under Art. 2, See. 2 islimited by the requirement of senatorial consent. It need only beobserved that such exercises of executive power in Australia areconditioned by the fact that they are exercised and exercisable bya responsible executive.

In respect of judicial power, however, rather different con-siderations arise. See. 71 of the Commonwealth Constitution, likeArt. 3, Sec. 1 of the United States Constitution vests judicialpower in courts. In Dignan's Case2 7, the High Court in rejectingarguments based upon the alleged separation of legislative andexecutive powers, pointed to the fact that different considerationsarose in respect of judicial power. It was observed that Britishconstitutional history and doctrine lays heavy stress upon theimportance of judicial independence.

For Australia, a constitutional obligation to separate judicialpower has arisen out of the judicial interpretation of Sees. 71 and72 of the Constitution. Sec. 71 vests judicial power in courts,while See. 72 provides that judges of these courts shall not be re-moved except by the Governor-General in Council on an addressfrom both Houses of the Parliament in the same session, prayingfor such removal on the ground of proved misbehaviour or in-capacity. It was held by a majority in the High Court of Aus-tralia in Waterside Workers Federation of Australia v. J. W.Alexander, Ltd.,2" that See. 72 required that judges exercisingfederal judicial power under Sec. 71 should be appointed for life.There was a forceful dissent and the decision was subsequentlychallenged on this, point, but it must now be taken to be settledlaw.29 It has been held to follow from this that it is unconstitu-tional to invest a person or body, not possessing life tenure, withjudicial power. This has squarely raised the very difficult problemof defining the characteristic or essence of judicial power. It isnot surprising that there have been sharp differences in the courtson this point. I have discussed this problem elsewhere, and I donot propose to renew that discussion here.3 0 There are, however,

27. 46 C. L. R. 73 (1931).28. 25 C. L. R. 434 (1918).29. Challenged in argument in Shell Co. of Australia, Ltd. v. Federal Commissioner

of Taxation [1931] A. C. 275, 280, but rnot decided. See Silk Bros. Pty., Ltd. v. StateElectricity Commission, 67 C. L. R. 1 (1943), Peacock v. Newtown Building Society,67 C. L. R. 25 (1943). See also Cowen, The Separation of Judicial Power and theExercise of Defence Powers in Australia, 26 CANADIAN B. Ray. 829, 831-832 .(1948).

30. 26 CANADIAN B. REv. 829 (1948).

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some anomalous decisions. In R. v. Bevan,1 and R. v. Cox, 2 anattack was made upon the validity of courts martial on the groundthat their members were not appointed for life and that they weretherefore unconstitutionally exercising judicial power. On thedefinitions of judicial power propounded at various times in theHigh Court this should have caused difficulty. However, the HighCourt flatly rejected the argument. The difficulty is to find a jus-tification in principle. One of the judges drew on American au-thority for the proposition that courts martial do not exercisejudicial power. Such cases are dubious authority in Australia.Decisions like Dynes v. Hoover,33 lay some stress on the provisionin the Fifth Amendment that no person shall be held to answerfor capital or other infamous crime mless on a presentment orindictment of a grand jury, except in cases arising in the land ornaval forces. In Kurtz v. Mofjitt, 4 it was said that the FifthAmendment left cases arising in the land or naval forces "subjectto the rules for the government and regulation of these forceswhich, by the eighth section of the first article of the Constitution,Congress is empowered to make." There is no comparable pro-vision anywhere in the Australian Constitution bearing upon thespecial position of the armed forces. In the Australian courtmartial cases, the only satisfactory explanation appears to be thatthe logic of an earlier position has been made to bend to the de-mands of an important practical problem.

To sum up thus far: the Australian Constitution departs fun-damentally from the American model in requiring Ministers ofState to be members of the legislature. The Australian courtshave expressly rejected the doctrine that there is any constitu-tional prohibition against vesting legislative powers in the execu-tive. On the other hand, there is American authority which holdsthat such an investiture may violate the doctrine of the separationof powers. From a practical standpoint the two Constitutionsmay not be too far apart; the American courts have upheld verywide delegations of power upon the footing that the legislaturehas prescribed sufficient standards under which the executive mayexercise the power. The Australian courts have, however, sug-gested that an uncontrolled delegation may be unconstitutional onthe ground that its breadth and uncertainty might deprive it ofthe character of a law properly subsumable under any specifichead of Commonwealth power.

31. 66 C. L. R. 452 (1942).32. 71 C. L P_ 1 (1945).33. 61 U. S. 65 (1857).34. 115 U. S. 487. 500 (1885).

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There is a body of Australian authority which effectivelyseparates judicial power. This results from a definition of theword "courts" in the judicature chapter of the Constitution, inrequiring members of courts (who alone exercise judicial power)to have life tenure. The obligation to isolate judicial power hascalled forth some very pretty judicial differences and quarrels,not to mention evasion, as in the court martial cases, when unsat-isfactory practical consequences would follow a logical applicationof previously agreed principle.

A word may be said on the linking of responsible governmentto a federal structure. It does not appear that this unusual mat-ing has produced a "sport of nature". Cabinet government inAustralia has developed pretty much along British lines eventhough the structure of power distribution is federal. An Aus-tralian commentator on the American political scene would notrequire uncanny gifts of observation to suggest that the path ofpolitical life might be smoother if the United States were to materesponsible government to federalism. * It may -perhaps be ap-propriate to note that at least one distinguished American au-thority has cast a fond and somewhat lingering glance at thecabinet system and expressed the wish that at least a pale imita-tion of it might be introduced into the United States.,5

l.

One of the most interesting differences in the political struc-ture and institutions of Australia and the United States is to befound in the position and importance of the Senate in the twocountries. Reference has already been made to the fact that theplace of the Senate in the Australian federation was the greattopic of debate in the national conventions of the eighteen nineties.It was to the Senate primarily that the founding fathers lookedfor the protection of State interests.

Here the United States provided a model. It was settled thateach State should be equally represented in the Senate. In thedraft Constitution of 1891, it was provided that the Senate shouldbe indirectly elected. This followed the United States Constitu-tion which was amended in this respect by the Seventeenth Amend-ment in 1913. The Convention of 1897-8, however, reversed thedecision of 1891 and provided for direct popular election. To en-sure that the Senate should be an effective protector of State in-terests, its powers were made coordinate with those of the LowerHouse, save in the matter of flnancial legislation where its power

35. CoRwiN, OUR CONSTITUTIONAL REVOLUTION AND How To ROUND IT OUT,17-21 (Publications of Brandeis Lawyers' Society 1951).

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in law was still strong. 6 Agreement upon a provision to deal withdeadlocks between the two Houses was difficult, but was finallyconcluded in the terms of Sec. 57 of the Constitution.87 Senatorswere to hold office for six years; members of the House of Repre-sentatives for a maximum of three. It was envisaged that themembership of the Senate should as nearly as possible be one halfthat of the Lower House.88 For many years there were 36 Sena-tors (six from each State) and 75 members of the Lower House.A few years ago, the membership was increased to 60 Senators(ten from each State) and 123 Representatives. 9

In view of the substantial similarity in structure and powers,it might have been thought that the Senates in the two countrieswould enjoy substantially similar positions. But while as betweenthe two Houses of Congress, the Senate is demonstrably the moreimportant, precisely the opposite is true in Australia. The com-ment of Sir John Latham, a former Chief Justice of the HighCourt of Australia, and previously a member of the Common-wealth legislature and executive may be quoted in this context:

The Senate was to be the States' House. This anticipationhas been almost completely falsified by results. The Senate isas much a party house as the lower house. The candidates forthe Senate are presented to the voters in teams selected by thepolitical parties. The personality of the candidates is of minorimportance.The idea of the Senate as a second chamber of wise and experi-enced men, sitting in sober and deliberate-and largely non-party-review of possibly hasty legislation passed by the lowerhouse has not been realized in practice. 40

It would not be very profitable to compare the two Senates interms of their protection of State interests. It is a matter ofhistory that from the early days of federation the Australian Sen-ate divided as a party house. On the other hand, it would surelybe a misconstruction of the position and importance of the UnitedStates Senate to account it primarily a States' house. Since in-direct election was replaced by direct election under the Seven-teenth Amendment, it is probably even less so. But it does occupya position of great importance in the national policy.

What explains the difference? Here I may recount an oddstory. An Australian observer suggests, among others, two rea-

36. See §§ 53, 54 and 55 of the Constitution.37. See Beasley in EssAYs ON THE AUSTRALiAN CONSTITUTION 67-72 (Else-

Mitchell, ed. 1952).38. § 24.39. REPDESENTATION Acr (1948).40. Lathamn, The Changing Constitution, 1 SYDNEz L. REv. 14, 22 (1953).

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sons for the decline of the Australian Senate. One is the factthat the Senators are elected from the State at large, and there-fore are not personally as well known as the Representatives whocome from smaller districts. The second is that their term issix years against the lower house's three; so that they are moreremote from the prevailing popular will.' I asked a distinguishedAmerican constitutional lawyer how he explained the predomi-nance of the Senate in the United States Congress. He gaveamong other reasons the following: (1) Senators possessspecial authority through being elected from the State at large;they are more widely known than representatives who are electedfrom districts; (2) they derive greater power and influence fromtheir longer term of office which is six against the representatives'two years !

It is not very easy to pinpoint reasons for such divergent de-velopments in the two countries. It may be that the proportionsin the two Houses have something to do with it. In the UnitedStates, the Senate is only about one-fifth the size of the House ofRepresentatives while in Australia the proportion is roughly oneto two. It is possible that the disparity in terms of office in theUnited States is too great; a two year term in the House of Rep-resentatives is very short indeed, while the three year term ofthe Australian House of Representatives may give it greater sta-bility and importance. There are only two Senators elected fromeach State in the United States; and this may mean that the indi-vidual Senators are much better known than ten (formerly six)from each Australian State. Probably the difference in partystructure has much to do with this problem. In the United States,this is relatively loose and fluid, while in Australia a tighter class-party system has been long established. When to this is addedthe factor of responsible government in Australia, in which theBritish tradition has for long emphasized the predominance of thelower House, it is perhaps not surprising that the Australian Sen-ate's importance has tended to decline.

It is certainly the case that the Senate in Australia has failedto meet the expectations of the founding fathers as a States'House. It has been said that:

A .class basis of Australian party warfare was already emerg-ing [at federation] and so long as that basis remained dominant

.there could be no prospect of a working 'States' House' at all.When parties came to be based broadly upon classes the interestsof either class in one State were more likely to be more nearly

41. Crisp, THE PARLLmNTARY GOVERNMENT OF THE COMMONWEALTH OF AusTRA-L rA174 et seq.

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linked to those of the same class in other States than with theopposite class in the same State.-

But more interesting still, having regard both to the comparablestructure of the United States Senate and to the seemingly largeconstitutional powers vested in the Australian Senate is the lat-ter's remarkable inferiority as a House of the legislature. Itsdebates are generally poor, its membership relatively insignificantin stature, and it is generally regarded in Australia as a disap-pointment. Various reasons have been and may be suggested forits inferior status, but one can only conclude with a recent com-mentary on Australian institutions that its failure to measure upis "truly remarkable.'"

IVBoth the American and Australian courts have frequently

been concerned with the problem of implications to be drawn fromthe federal character of the Constitution. This has most oftenarisen in the context of intergovernmental immunities. In variousforms, this problem was under consideration by the SupremeCourt of the United States during the greater part of the nine-teenth century. There is no evidence from the debates in the con-stitutional conventions of the 'nineties that the Australian found-ing fathers had any general awareness of this problem or anydisposition to deal with it. 44 Certain specific provisions whichbear on this matter were written into the Constitution: thus theCommonwealth Parliament's power to legislate with respect tobanking expressly excluded State banking,45 and the similar powerwith respect to insurance excluded State insurance.46 If a Stateengaged either in banking or insurance activities, its operationswould not be subject to Commonwealth legislative control. Sotoo, Sec. 114 of the Constitution provided, in part, that "A Stateshall not . . . impose any tax on property of any kind belongingto the Commonwealth nor shall the Commonwealth impose anytax on property of any kind belonging to a State."

It' might have been thought that the existence of specificprovisions of this kind excluded the drawing of any general im-plications with respect to intergovernmental immunities.47 How-ever when the problem arose very early in the history of theCommonwealth-indeed in the first volume of the CommonwealthLaw Reports-in terms of State power to impose a stamp tax

42. Id. at 176.43. Id. at 183.44. Sawer, Implicatiorw and the Contitution, 4 Rls JuDICATA 88-90 (1949).45. § 51 (XIII). " . .. 8.( 446.§ 51 (XIV).47. See Sawer, supra note 44 at 89.

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on a Commonwealth officer's receipt for his salary, the HighCourt unanimously held this to be unconstitutional on the footingof a general doctrine of immunity of instrumentalities. In sodeciding, the Court relied heavily on American authority, andjustified this in sweeping terms:

We think that, sitting here, we are entitled to assume-what,after all, is a fact of public notoriety-that some, if not all ofthe framers of [the] Constitution were familiar . . . withthe Constitution of the United States. . . . When, therefore,under these circumstances, we find embodied in the Constitutionprovisions undistinguishable in substance, though varied inform, from provisions of the Constitution of the United Stateswhich had long since been judicially interpreted by the SupremeCourt of that Republic, it is not an unreasonable inference thatits framers intended that like provisions should receive likeinterpretation.4"

In this case the Australian High Court followed the United States'Supreme Court decision in McCulloch v. Maryland.49 When theissue of liability of federal salaries to State taxation was posed inDeakin v. Webb,50 the High Court followed and relied on Dobbinsv. Commissioners of Erie County.51 When the converse problemof the subjection of State instrumentalities (State railways) toCommonwealth arbitration awards arose, the High Court inholding that they were not subject 52 squarely rested on Collectorv. Day,53 where the Supreme Court had denied the constitutional-ity of a federal tax on State salaries.

From 1906, there was a persistent dissent in the High Courtof Australia on this point. When, by 1920, the dissent had be-come the majority view, the High Court held, in the most cele-brated of all Australian constitutional cases, the Engineers'Case,54 that a Commonwealth Arbitration Court award bound aState instrumentality. Some of the earlier decisions were ofnecessity overruled, while others were reinterpreted in the sensethat their basis was shifted from the doctrine of the immunity ofinstrumentalities. The new doctrine called, too, for a revised viewof the weight of American authority in Australian constitutionalinterpretation.

We conceive that American authorities, however illustriousthe tribunals may be, are not a secure basis on which to buildfundamentally with respect to our own Constitution. While in

48. D'Emden v. Pedder. 1 C. L. R. 91, 113 (1904).49. 4-Wheat. 316 CU. S. 1819)50. 1 C. L. R. 585 (1904).51. 16 Pet. 435 (U. S. 1842).52. Railway Servants' Case, 4 C. L. PL 488 (1906).53. 11 Wall. 113 CU. S. 1870).54. Amalgamated Sodety of Engineersv. Adelaide Steamship Co., Ltd., 28 C. L. F.

129 (1920).

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secondary and subsidiary matters they may, and sometimes do,afford considerable light and assistance, they cannot . . . berecognized as standards whereby to measure the respective rightsof the Commonwealth and States under the Australian Consti-tution. For the proper construction of the Australian Constitu-tion it is essential to bear in mind two cardinal features of ourpolitical system which are interwoven in its texture and, not-withstanding considerable similarity of structural design, includ-ing the depository of the residual powers, radically distinguishit from the American Constitution. Pervading the instrument,they must be taken into account in determining the meaning ofits language. One is the common sovereignty of all parts of theBritish Empire; the other is the principle of responsible govern-ment.

55

During the period in which the doctrine of the ETigineers'Case was in the ascendant, reliance on American authority greatlylessened. However, since 1945 there has been some revival inAustralia of doctrines of intergovernmental immunity. The prob-lem was posed in Melbourne Corporation. v. Commonwealt,16where the issue was the validity of legislation providing that,except with the consent of a Commonwealth officer, a bank shouldnot conduct any banking business for a State or for any authorityof a State, including a local government body. The High Courtheld the legislation unconstitutional. Although there were somedifferences of opinion in the Court, there was a great emphasison the point that the vice in the legislation lay in the fact that itplaced special burdens on the States in the exercise of theirgovernmental functions. The "revived" doctrines of inter-governmental immunity have found expression in other cases,notably through Dixon J. (now Chief Justice of the High Court)."7

Chief Justice Dixon served as Australian Ambassador to Washing-ton during part of the Second World War, and he, of all membersof the Court, is most familiar with the course of American author-'ity. The revival of intergovernmental immunities in Australiahas, not surprisingly, brought with it a revived interest in andregard for American authorities, which have been discussed at-length in the opinions.

There has also been some awareness of the shift of Australiandoctrine on this point on the part of the American Supreme Court.In Graves v. New York,58 the Supreme Court overruled Collector-v. Day in holding -that federal salaries -were subject to State -in-

55. At 146. See Latham, Interpretation of the Constitution, EssAYs 6H¢ THEAusTRALIAN CoNsrrrurIoN, 30-31 (Else-Mitchell, ed. :1952).

56. 74 C. L. R. 31 (1947). .57. See Essendon Corp. v. Criterion Theatres, Ltd., 14 C. L. R. I (1947), Uther

v. Federal Commissioner of Tazation;74 C. L. R. 508- (1947). "58. 306 U. S. 466 (1939).

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come tax. Frankfurter J. drew attention to Canadian and Aus-tralian constitutional developments:

In view of the powerful pull of our decisions upon the courtscharged with maintaining the constitutional equilibrium of thetwo other great English federalisms, the Canadian and the Aus-tralian courts were at first inclined to follow the earlier doc-trines of this Court regarding intergovernmental immunity

* [citing D'Enden v. Pedder]. Both the Supreme Courtof Canada and the High Court of Australia on fuller considera-tion-and for present purposes the British North America Act. and the Commonwealth of Australia Constitution Act. . . raised the same legal issues as does our Constitution-have completely rejected the doctrine of intergovernmental im-munity.

59

The statement that the doctrine had been "completely"rejected in Australia probably overshot the mark, even as of 1939.There were suggestions in a High Court decision in 1937, West v.Commissioner of Taxation,0 that there might still be life in thedoctrine. And the recent cases in the High Court, notably Mel-bourne Corporation v. Commonwealth, have certainly revived it.The present scope and ambit of the doctrine of intergovernmentalimmunities in either federation is not very clear. The most recentdecision of importance in the Supreme Court of the United Statesis New York v. United States,61 in which a federal excise tax onthe sales of bottled mineral waters sold by New York and drawnfrom land owned by it was sustained by a majority. It is not easyto draw a precise ratio decidendi from this case, 2 and the dis-senting views of Black and Douglas JJ. would have opened up awide area of operation for intergovernmental immunity. Dis-tinguished commentators have drawn attention to the difficultyof precisely charting the American doctrine. Justice Roberts,writing after he had retired from the Supreme Court Bench hasobserved that,

In no field of federal jurisprudence has there been greater var-iation of uncertainty. About one quarter of these decisionshave been expressly or tacitly overruled, modified or ignoredin later cases. Doubtless the explanation is that the Court hasbeen called upon to exercise statesmanship in an unchartedregion rather than interpretation of the text of the instrument:to implement policy rather than law.68

59. Id. at 490-491.60. 56 C. L. R. 657. See Pond, Intergovernmental Immunities: A Comparative

Study of the Federal System, 26 IowA L. REv. 272 (1941).61. 326 U. S. 572 (1946).62. ROBERTS, THE COURT AND THE CoNsTrruTioN (1951) at p. 28 observes that

it was held that the tax was constitutional. "That, however, is about all that can besaid of the case."

63. Id. at 8.

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A former Chief Justice of the Australian High Court has likewisespoken of the "chequered career" 64 of the American doctrine. Itappears clear that the course of American authority in latteryears has tended to restrict its scope, and insofar as this has in-volved an abandonment of earlier extravagant positions, it is to bewelcomed. 5

The present situation in Australia is a little obscure.6 6 Ref-erence has already been made to Melbourne Corporation v. Com-monwealth in which the High Court declared invalid legislationwhich would have obliged the States and their instrumentalities tobank with the Commonwealth Bank. In this and other cases, therehave been statements in support of a doctrine of intergovern-mental immunities as a matter of logical implication from theexistence of a federal structure of government. The presentChief Justice, Sir Owen Dixon, has expounded the doctrine inseveral cases. We have already noted that such members of theCourt as favour the doctrine have not all stated their position inthe same way. It is not clear whether it is the element of dis-crimination which is decisive, or whether what invalidates legisla-tion on this ground is the existence of a burden uuon the govern-mental functions of one party to the federal compact, even thoughthat burden does not arise out of discriminatory legislation.

It is interesting to note two other decisions of the High Court.In South Australia v. Commonuwealth (the Uniform Tax Case),67a legislative scheme was devised to drive the States out of the in-come taxing field. The Commonwealth imposed a high rate ofincome tax, for payment of which it legislatively granted priorityto itself. It undertook to make grants to the States on terms oftheir withdrawal from this field of taxation, and it purported totake over State income tax departments.

This legslation was held valid by a majority in the HighCourt. It will be apparent that the scheme effectively placed theStates at the financial mercy of the Commonwealth, and if ever

64. Melbourne Corp. v. Commonwealth, 74 C. L. R. 31, 56 (1947) per LathamC. J.65. ROBERTS, op. cit. supra note 62 at 35 writes: "The steady progress toward

the abolition of the reciprocal immunities has been beneficial. . . . Save for obviousdiscrimination, why is not the citizen of dual sovereizns entitled to refuse confidence thatneither of those sovereigns can nor will by nondiscriminatory taxation of its own citizensdestroy or hamper the operations of the other?"

66. For discussions, see Pond, Interqoverumental Immunities: A ComparativeStudy of the Federal System, 26 IOwA L. REv. 72 (1941), Sawer, Implications and theConstitution, 4 REs JUDICATA 15, 85 (1948-9). ESSAYS ON THE AUSTRALIAN CONSTITUTION(1952) : Latham at 29-36, Anderson at 101-108, Hannen at 273-277. Dr. T. C. Brennan'sInterpreting the Constitution (1935) is an attack on the majority position in theEngineers' case. See also Holmes, Back to Dual Sovereignty, 21 AUSTRALIAN L. J. 162(1947).

67. 65 C. L. R. 373 (1942),

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there was a case in which intergovernmental immunity wasposed as a practical problem of government, this was it. StarkeJ., dissenting, made this point. The Chief Justice, Sir JohnLatham, was well aware of the implications of upholding the legis-lation, but nonetheless held it valid:

Thus if the Commonwealth Parliament were prepared to passsuch legislation (excluding the States from all tax fields andmaking grants conditional on Commonwealth satisfaction withState policies) all State powers would be controlled by the Com-monwealth-a result which would mean the end of the politicalindependence of the States. Such a result cannot be preventedby any legal decision. The determination of the propriety of anysuch policy must rest with the Commonwealth Parliament andultimately with the people. The remedy for alleged abuse ofpower or for the use of power to promote what are thought to beimproper objects is to be found in the political arena and not inthe Courts. 68

It is to be noted that the legislation as upheld even requiredthe States to turn their income tax departments over to the Com-monwealth.69 How the Uniform Tax Case sits with the MelbourneCorporation Case is not very clear when one looks into the heartof the two decisions.70 It is perhaps worth recording that Sir Owen*Dixon was not a member of the Court which decided the UniformTax Case. In Bank of New South Wales v. Comnmo.wealt,, 71.

it was argued that the Banking Act of' 1947 which purported togive the Commonwealth Bank a monopoly of all banking (exceptbanking conducted by State banks) was unconstitutional on theground that it denied the States the facilities of all other banks.72

The Court (of which Dixon C. J. was a member) distinguished theMelbourne Corporation Case on the ground that in the Bank casethe States and their instrumentalities were not specifically -singledout. As a practical matter it is to be noted that the States weresubject to the same limitations in either case and under either Act.

To sum up: in enunciating a-doctrine of intergovernmentalimmunity the first Australian High Court drew heavily upon thedoctrine of the American Supreme Court at a time when theAmerican doctrine was stated in extreme terms. From 1920 astrong reaction set in in Australia with the Engineers' Case, andin this case the High Court drew strength for its new positionfrom the proposition that there were fundamental differences be-tween the United States and Australian constitutional structures

68. Id. at 429.69. Anderson, The States and Commonwealth Relations, EssAYs ON THE AusTRA-

LIAN CONSTITUTION 107 (Else-Mitchell, ed. 1952).70. Id. at 105-107.71. 76 C. L. R. 1 (1948).72. The legislation was held unconstitutional on other grounds.

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which denied compelling authority to American decisions onintergovernmental immunity. Since the end of the Second WorldWar, there has been a movement back to doctrines of intergovern-mental immunities based on a logical deduction from the federalstructure of Australian government. This has given the Americandecisions fresh significance in Australia. The contemporary Aus-tralian doctrine is not easily defined either in character or scope,and it may be that it will not be held to operate beyond the areaof direct discriminations against States or their agencies.

For the United States it may be said that the tide has forsome long time past run against the extreme positions taken inMcCulloch v. Maryland, Collector v. Day and similar cases. Thedecision in New York v. United States while continuing to movetowards restriction of the scope of the doctrine -still leaves itslimits uncertain.

V

An interesting comparison between the American and Aus-tralian Constitutions is revealed by their differing approaches tothe problem of protection of individual rights. From the earliestdays, the American Constitution has included a Bill of Rightswhich has been added to from time to time by amendment. Havingregard to the atmosphere in which the United States Constitutionwas drafted and adopted, and also to subsequent crises in its his-tory, it is not surprising that it was regarded as appropriate toplace constitutional restraints on government in the interest offundamental individual rights. The British conception is differ-ent; to a fundamental constitutional doctrine that Parliament isomnicompetent it is impossible to link the constitutional protectionof individual rights. It is quite another question whether in-dividual rights are in practice more effectively guaranteed in theUnited States than in England.

Australian institutions had, in general, developed on theBritish model, although of course, there is no place for parliamen-tary omnicompetence within the Australian federal structure.However, Australian federation was forged in a very differentAtmosphere to that of 1787. It may perhaps also be said that the-American founding fathers were much more consciously influencedby and were more keenly aware of individualist and libertarianphilosophical influences than were their Australian counterpartsof the eighteen nineties.

In fact there are relatively few provisions in the AustralianConstitution which restrain government in the interests of in-dividual rights. The principal exceptions are to be found inSees. 116 and 117 of the Constitution. See. 116 provides that

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the Commonwealth shall not make any law for establishing anyreligion, or for establishing any religious observances, or forprohibiting the free exercise of any religion, and that no re-ligious test shall be required as a qualification for any officeor public trust under the Commonwealth. It will be noted thatthis clause broadly parallels the material provisions of Art.VI, Sec. 3 and the First Amendment to the United States Con-stitution. It is perhaps of interest to note that in the 1891 draftof the Constitution these prohibitions were directed to the States.In 1.897-8 the prohibitions were also addressed to the Common-wealth and as finally adopted the clause only restrained the Com-monwealth. This leavse the States unfettered, except insofar asthere may be any special provision in a State constitution.

The section has come up for judicial consideration. InKrygger v. Williams,3 it was held that it did not prevent Parlia-ment from applying compulsory military service to conscientiousobjectors. It was discussed at some length in Adelaide Companyof Jehovah's Witnesses v. Commonwealth,7 4 where the High Courtconsidered regulations enacted under the defence power during theSecond World War which prohibited the advocacy of Jehovah'sWitnesses doctrines as prejudicial to the prosecution of the war.The Court discussed the American authorities 75 which were citedto support the proposition that the constitutional protection ofreligious freedom could not be phrased in absolute terms. "Thisview makes it possible to accord a real measure of practical pro-tection. to religion without involving the community in anarchy.'17It has been suggested that the decision in the Jehovah's WitnessesCase probably goes further in permitting restraints than currentAmerican doctrine would allow.77

Sec. 117 of the Australian Constitution provides that "a sub-ject of the Queen resident in any State shall not be subject in anyother State to any disability or discrimination which would not beequally applicable to him if he were a subject of the Queen resi-dent in such other State." It is to be noted that the phraseologyis odd: the criterion of discrimination is residence, so that itmay be that a discrimination on the basis of domicile is not pro-hibited .7 This provision suggests in part the privileges and im-

73. 15 C. L. R. 366 (1912).74. 67 C. L. R. 116 (1943).75. Id. at 127-131, per Latham C. J.76. Id. at 131.77. Bailey, Fifty Years of the Australian Constitution, 25 AUSTRALIAN L. J. 314,

327 (1951).78. Latham, Changing the Constitution, 1 SYDNEY L. Rav. 17 (1953).

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munities clause of Art. IV, Sec. 2 of the United States Constitutionand in part the provisions of the first section of the FourteenthAmendment. 7 The legislative history of See. 117 is interesting.In the 1891 draft, the terminology was much closer to the first sec-tion of the Fourteenth Amendment although without reference todue process. In 1897-8, O'Connor, who was a principal drafts-man of the Constitution and subsequently became an original mem-ber of the High Court, moved unsuccessfully to add the words ofdue process. That close at least did Australia come to the benisonsof a due process clause! As enacted, See. 117 has played an in-significant role in Australian constitutional interpretation.

Two other provisions remain to be considered. There is animportant limitation on the Commonwealth's power to acquireproperty. This appears in See. 51 (xxxi) which authorizes theCommonwealth Parliament to acquire property on just terms fromany State or person for any purpose in respect of which the Par-liament has power to make laws. The restraint on power is, ofcourse, the requirement of provision of just terms and this finds itsAmerican parallel in the Fifth Amendment prohibition againstthe taking of private property for public use without just com-pensation. The American Constitution presined the existence ofa power of eminent domain, and directed attention to restraintsupon its exercise. The Australian founding fathers, doubting thesafety of relying on an imnlied power of eminent domain in acolonial commonwealth, included a provision expressly conferringa power of acquisition on the Commonwealth legislature which atthe same time limited and controlled its exercise.

It is very clear, with the hindsight of half a century, that with-out any such express -power many of the heads of Commonwealthpower would have authorized the acquisition of property for spe-cific purposes. Most of the cases on -property acquisition aroseduring the Second World War, and it is now quite clear that ifSec. 51 (xxxi) had not been written into the Constitution, the de-fence power, Sec. 51 (vi) would have authorized acquisitions fordefence purposes without challenge to the terms of acquisition.It was unsucces fullv argued that acquisitions could be effectedunder Sec. 51 (vi) without necessary recourse to See. 51 (xxxi).The High Court, having regard to the clear intendment of the Con-stitution that provision of just terms be imported into all Common-wealth acquisitions, rejected these arguments. This means that

79. "No state shall make or enforce any law which shall abridge the privileges orimmunities of citizens of the United States; nor shall any State deprive any person oflife, liberty or property, without due process of law; nor deny to any person within itsjurisdiction the equal protection of the laws."

COMPARISON OF CONSTITUTIONS

Sec. 51 (xxxi) is the sole source of Commonwealth legislativepower to acquire property. 0 Moreover the Court has given theword "property" a wide meaning, so that the temporary takingof land for Commonwealth use falls within Sec. 51 (xxxi) andattracts the protection of the Section.8'

It would seem then, that while framed in terms of power, theAustralian provision operates effectively as a restriction on powerand therefore broadly parallels the material provision of the FifthAmendment. However, some distinctions and differences werepointed to by Dixon J. in Grace Brothers Pty., Ltd. v. Common-wealth.8 2 Since the power of eminent domain operates withoutexpress constitutional authorization, and since the only expressprovision in the American Constitution is the limitation uponpower contained in the relevant words of the Fifth Amendment, itmay follow that an acquisition offending the Fifth Amendmentstill remains an acquisition whose terms of compensation remainto be "settled under or moulded by" the Fifth Amendment. Inthe Australian Constitution, on the other band, the power and the-terms of acquisition are rolled up in one provision. The possibleconsequence of conferring a power of acquisition-on-just-terms isthat an acquisition denying just terms is not a lawful taking.Again the limits of just compensation and just terms may be dif-ferent, and just terms may give greater latitude to governmentalinterest. 3 The appropriate conclusion may therefore be thatwhile American decisions on the Fifth Amendment are useful inresolving problems arising under Sec. 51 (xxxi), they cannot becompelling.

Of all the limitations on governmental power written into theAustralian Constitution by far the most important is that in See.92. The important words in this clause are: "trade, commerce,and intercourse among the States. whether by means of internalcarriage or ocean navigation, shall be absolutely free." The inter-pretation of these words has caused enormous difficulty and theyhave been before the courts on very many occasions. From thestandpoint of constitutional history. they present relatively little

80. P. 1. Magennis Pty., Ltd. V. Commonwealth, 80 C. L. R. 382 (1949). SeeBaker, The Compulsory Acquisition Powers of the Commonwealth, EssAYs oN THEAUSTRALIAN CONSTrruION 160-161 (Else-Mitchell, ed. 1952).

81. Minister for the Army v. Dalziel, 68 C. L. R. 261 (1944). Baker, supranote 80 at 163-165.

82. 72 C. L R. 269, 285 et seq. (1946).83. "In deciding whether any given law is within the power the Court must, of

course, examine the justice of the terms provided. But it is a legislative function toprovide the terms and the Constitution does not mean to deprive the legislature of alldiscretion in determining what is just. Nor does justice to the subject and to the Statedemand a disregard of the interests of the public or of the Commonwealth." Per Dixon J.in Grace Bros. Pty., Ltd. v. Commonwealth, 72 C. L. R. 269, 291 (1946).

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difficulty. The intendment of the founding fathers was to ensurethe economic unity of Australia. See. 92 was devised to do "no!more than reinforce the conversion of six separate economic units-into one and ensure the operation therein of the contemporary con-cept of free trade."184 The clause is set in the context of a groupof provisions relating to finance and trade. However, the lan-guage of the section was unhappily broad. There were lawyersboth inside and outside the constitutional conventions who warnedof the dangers of such draftsmanship. The politicians, however,triumphed; it was felt that "a little bit of layman's language"might appeal to the electorate to whom the constitutional draftwas to be submitted for ratification.8 5

See. 92 is sui generis; it owed nothing to American prece-dent.8 American influence on Australian constitutional draftingin the field of trade and commerce was significant in the powerfield: Art. 1, See. 8 clause 3 investing Congress with power to regu-late foreign and interstate commerce was paralleled by See. 51 (i)which authorises Commonwealth legislation with respect to for-eign and interstate trade and commerce. There are also compar-able provisions which operate to limit power in this field. Art. 1,Sec. 9, clause 3 prohibits the giving of preference by any regula-tion of commerce or revenue to the ports of one State over thoseof another, while the Australian See. 99 provides that the Common-wealth shall not by any law or regulation of trade or commercegive preference to one State or any part thereof over another Stateor any part thereof. It is interesting to note that while the Amer-ican commerce power has become a principal instrument of the ex-tension of federal power, the substantially similar Australian com-merce power has played a relatively minor role. There are vari-ous reasons which may help to explain this interesting difference. 87

We cannot pause to do more than footnote them here, but it is ap-propriate to observe that the judicial interpretation of See. 92 isin some measure responsible.88

The great difficulties which have been experienced in the in-terpretation of See. 92 have arisen in large measure from thewords "absolutely free". While it has never been assumed thatthese sweeping words deny any power of legislative regulation

84. Beasley, The Commonwealth Constitution: Section 92, 1 ANNUAL L. RFv.(Univ. of Western Australia) 433 (1948-50).

85. Bailey, supra note 77 at 328-329.86. Stone, A Government of Laws and Yet of Men, 1 ANNUAL L. REy. (Univ. of

Western Australia) 470 (1948-50).87. Bailey, .'upra note 77 at 322-323.88. See Stone, supra note 86 at 207-208.

COMPARISON OF CONSTITUTIONS

whatsoever, 89 the High Court of Australia at a relatively earlystage cast off the anchor which a historical interpretation limit-ing the scope to the provision of intra-Australian fiscal freedomwould have provided. Once this step was taken it was difficult toset limits. At one stage, the High Court accorded the words"absolutely free" very wide scope. This position led to theCourt's conclusion that the section did not operate upon Common-wealth legislation, since this would have rendered nugatory theCommonwealth legislative power with respect to interstate tradeand commerce. On this footing, it was held that Sec. 92 operatedonly as a limit on State power and action. ° This view was re-jected by the Privy Council some fifteen years later91 and it is nowsettled law that the Section binds both Commonwealth and States.

It is not surprising then that. such an illdrawn section, de-prived of its historical anchor, should have caused great troubleand some very pretty quarrels in the courts. It has arisen for con-sideration in various contexts: among them Commonwealth-andState marketing schemes principally with respect to primaryproducts; attempted State regulation of interstate road transport,and in recent years Commonwealth legislative attempts to nation-alize banking and interstate airlines. Notably in the Airlines,92and Bank Nationalization Cases,9 3 there is to be found a good dealof language which suggests that a purpose of the section is to en-sure to individuals freedom of interstate competition. In thewords of one of the judges of the Australian High Court, "thefreedom guaranteed by Sec. 92 is a. personal right attaching to theindividual." 9 4 This does not represent the view of all the judges inthe recent cases, and in the opinion of the Privy Council in Bank ofNew South Wales v. Commonwealth (the Bank NationalizationCase), 5 there is a teasing passage in which it is suggested thatthere may be circumstances in which prohibition with a view toState monopoly may be "the only practical and reasonable mannerof regulation and that interstate trade, commerce and intercourse

89. "'Whatever 'free' in 'absolutely free' means, it cannot mean free from legisla-tion, because both the States and the Commonwealth have power to legislate on trade andcommerce. 'Free,' it is submitted, is a political conception; it is the conception of anorderly and ordered freedom, and not the conception of a chaotic license which wouldresult from allowing every individual to do exactly as he wished. No impediment orhindrance is to be put upon trade among the States, it is not that its regulation is there-upon to cease." Per Lord Wright in James v. Commonwealth, [1936] A. C. 578, 593.

- .90. .WZ-A. McMrthur,-Ltd-v. Iueenslandr-28-C.L: P, -530- (1920);91. James v. Commonwealth, [19361 A. C. 578. "

.92. 71 C. L.M 29 (1945).93. 76 C. L.-R.I -(1948) (High Court of -Australia); [1950] A. C. 235 -(-Priiy

Council).94. Per Williams J. Australian National Airways Pty., Ltd. v. Comowealth,

71 CL.. R. 29o 111- (1945).. -95. [1950] A.C. 235, 311. _. l .

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thus prohibited and thus monopolised remained absolutely free."However, both in the Airlines and Bank Nationalization Cases thedecision was that national monopoly as opposed to private right oftrade violated the provisions of See. 92.

One Australian commentator, in an extended review of theauthorities has concluded that

under the Australian Constitution, the 'freedom' of trade, com-merce and intercourse guaranteed under Sec. 92 is coming to beinterpreted to include tacitly within itself a guarantee of indi-vidual freedom of contract and choice of vocation of personsoperating within the field of interstate commerceY0

He suggests that Sec. 92 in this respect comes to serve the pur-poses which the due process and contracts clauses served in re-straining the extension of federal power under the commerceclause in the United States Constitution. This leads further to thesuggestion that at a period at which the Supreme Court of theUnited States is interpreting the interstate commerce power invery wide terms and is restricting the scope of constitutionallimitations on that power, the judicial interpretation of the Aus-tralian Constitution in this respect is following an oppositecourse.

7

The suggestion that there are elements in the interpretation ofSec. 92 which provide analogies to the employment of due processin the American Constitution is interesting and provocative. Ofcourse, the parallels are imperfect; there is too much uncertaintyand there are too many strands in the interpretation of Sec. 92 tomake it possible to define its scope and operation with any dog-matic assurance."" But the American lawyer may find interest(which to his Australian counterpart can only be painful interest)in the evolution and interpretation of this Section which is demon-strably the most important limitation upon governmental powerin the Australian Constitution.

96. Stone, suPra note 86 at 511.97. Stone notes that: "This difference in timing, however, may conceal a deeper

similarity. . In th life cycle of her economy, Australia is only just beginning to feelthe full expansive pressure resulting from industralization under a private enterpriseeconomy.". Id. at 512.-

98. See Phillips, Trade Commerce and Intercourse, ESSAYS ON THB AUSTRALIANCoNsTITioN 256.259 (Else-Mitchell, ed. 1952).

"180