BY CHRIS PIGGOTT-MCKELLAR

One hundred years ago this month, rumblings that the constitutional ground in Australia was about to shift underfoot were felt when the High Court handed down its decision in McCawley v R (1918) 26 CLR 9 (‘McCawley’). The case had little to do with the Australian Constitution. Instead, it was concerned with the legal personality of state constitutions. Were they, as was presumed by many to be the case following the experience of Federation, a form of higher law like the Australian Constitution, fundamental aspects of which lay outside the ordinary grasp of state legislative power? Or were they “uncontrolled”, imbued with a Diceyan spirit of parliamentary sovereignty, and capable of being amended like any other act of parliament?

The High Court had havered over this point on two prior occasions (in Cooper, Chief Justice of the Supreme Court of Queensland v Commission of Taxation (Qld) (1907) 4 CLR 1304 and Taylor v Attorney General of Queensland (1917) 23 CLR 457). It took an appeal from McCawley to the Privy Council to settle once and for all that state constitutions are flexible and “uncontrolled”. This fundamental proposition, from which all state constitutional law now proceeds, can be directly traced back to the judgment of Isaacs and Rich JJ in McCawley a century ago.

This post explores how McCawley delved deep into Australia’s constitutional subterranea and shone a spotlight on the lingering effect of imperial laws, like the Colonial Laws Validity Act, which lurked therein. It explains how the case informs our contemporary understanding of ‘manner and form’ provisions, which restrict the principle of flexibility by requiring state parliaments to amend aspects of their constitutions in a special way. The post also briefly considers whether the discovery of additional restrictions on state legislative power in the Australian Constitution through the Kable line of cases brings into question the significance of the McCawley case.

The History of the McCawley Litigation

In 1916, the Queensland Parliament passed the Industrial Arbitration Act 1916 (Qld), which created the Queensland Court of Industrial Arbitration to which judges could be appointed for 7 years. Controversially, section 6(6) of the Act also provided for those same judges to be appointed to the Supreme Court. This appeared to conflict with the Constitution Act 1867 (Qld) (‘the Constitution Act’), which at the time granted life tenure, subject to good behaviour, to Supreme Court judges.

In early 1917, the Labour Government appointed Thomas McCawley as President of the Court of Arbitration and subsequently, as it was empowered to do, as a Supreme Court judge. Several people, including leading members of the Queensland bar, commenced proceedings in the Queensland Supreme Court, challenging the validity of McCawley’s appointment to that Court. The central question to be decided was whether the Queensland Parliament could implicitly amend the Constitution Act — as it purported to have done, by enacting the Industrial Arbitration Act — by simply legislating inconsistently with it. The Supreme Court held that McCawley’s appointment as a Supreme Court judge for 7 years was invalid because it conflicted with the Constitution Act. To validate the appointment, the Parliament would first have to repeal the provisions of the Constitution Act which guaranteed judicial tenure for life using express and clear language.

The High Court upheld the Supreme Court’s decision by a 3-2 majority, with Isaacs and Rich JJ dissenting. The majority judges, including Griffith CJ, characterised the Constitution Act as a form of ‘fundamental law’ which the Parliament was unable to amend in the ordinary way. Isaacs and Rich JJ, however, disagreed, and argued that the Parliament had sufficient power to amend the Constitution Act implicitly by later inconsistent legislation. To understand the divergences in opinion between the members of the High Court, we need to go right back to the constitutional dawn of the colony.

The First Constitution and the Colonial Laws Validity Act

Queensland was established by Letters Patent and an Order in Council issued by Queen Victoria on 6 June 1859, the latter of which was essentially Queensland’s first ‘constitution’. Clause 15 of the Order in Council adopted two provisions of the New South Wales Constitution Act (which were themselves taken from the United Kingdom’s Act of Settlement 1701) which provided for judicial tenure, and clause 22 enabled the Order in Council itself to be amended “in the same manner as any other laws”. When the Constitution Act (Qld) was consolidated in 1867, clause 22 was left intact (providing for a continuous head of legislative power), and, importantly, clause 15 was reproduced without alteration: thereafter, it appeared as sections 15-17 of the Constitution Act.

The other crucial piece of legislation in issue in McCawley was the Colonial Laws Validity Act. This had been passed by Westminster in 1865 to – rather matter-of-factly – confirm the validity of colonial laws. Section 2 rendered “void and inoperative” any colonial laws (which after Federation, included laws of Australian state parliaments) which were inconsistent with British laws, including the Colonial Laws Validity Act, which applied by paramount force. Section 5, however, gave those same legislatures seemingly full power to alter their constitutions to establish courts of judicature, and to make laws “respecting the constitution, powers and procedures” of the legislature. There was, however, a caveat: section 5 also stated that such laws must “have been passed in such manner and form as may from time to time be required by any Act of Parliament, letters patent, Order in Council, or colonial law for the time being in force in the said colony”.

In McCawley, Griffith CJ found that, because they had been lifted directly from the Order in Council, sections 15-17 of the Constitution Act enjoyed the protection of section 2 of the Colonial Laws Validity Act; any attempt to legislate contrary to this was, in the words of that Act, “void and inoperative”. In addition to the Colonial Laws Validity Act, Griffith CJ also appeared to appeal to higher constitutional angels when finding McCawley’s commission was invalid. He argued that judicial independence was of such “great constitutional principle” that it should be treated as “fundamental law”, and therefore unable to be altered through the normal legislative method. Isaacs and Rich JJ, however, rejected this view, and pointed out that such an interpretation would have entrenched judicial tenure in the Constitution Act beyond what even the Act of Settlement in the United Kingdom had achieved.

Whereas Griffith CJ thought the Colonial Laws Validity Act limited the legislative powers of state parliaments, Isaacs and Rich JJ believed that section 5 had the opposite emancipating effect. They referred to it as “an absolute charter” (channelling Dicey’s view that the Colonial Laws Validity Act was “the charter of colonial legislative independence”) which gave full power to the Queensland Parliament on two matters relating to the constitution “no matter what the British Legislature had previously said”: namely, the legislature itself, and the courts of judicature. The legislation in question in this case — the Industrial Arbitration Act — clearly fell into the latter category. There was no valid manner and form provision restricting the way in which provisions of the Constitution Act concerning judicial tenure could be changed. Isaacs and Rich JJ therefore concluded that Parliament had validly, albeit impliedly, amended the Constitution Act by permitting judges such as McCawley to be appointed to the Supreme Court for 7 years.

Isaacs and Rich JJ also drew attention to a quirk of state constitutions which persists to this day. Unlike the Australian Constitution, state constitutions are not contained in a single document. This is not uncommon: many provisions which might form part of a ‘constitution’ are not contained in acts with that title. Thus, their Honours said, “there is nothing sacrosanct or magical in the word ‘Constitution’”.

Dancing with Dicey

McCawley successfully appealed the decision of the High Court to the Privy Council, where “their Lordships (found) themselves in almost complete agreeance” with the dissenting opinion of Isaacs and Rich JJ.

In the unanimous decision, delivered by Lord Birkenhead LC and handed down in 1920, the Privy Council drew a distinction between those constitutions which were “controlled” and those, like Queensland’s, which were “uncontrolled”. Controlled constitutions had a closed quality to them and could not “be altered merely by enacting legislation inconsistent with its articles”. Uncontrolled constitutions could be amended, it was said rather unflatteringly, as if they were the humble Dog Act.

In a nod to Diceyan concepts of parliamentary sovereignty – that a parliament cannot bind its successors; and that where two acts conflict, the latter in time prevails – their Lordships further stated:

Some communities, and notably Great Britain, have not in the framing of constitutions felt it necessary, or thought it useful, to shackle the complete independence of their successors. They have shrunk from the assumption that a degree of wisdom and foresight has been conceded to their generation which will be, or may be, wanting to their successors, in spite of the fact that those successors will possess more experience of the circumstances and necessities amid which their lives are lived.

It was the policy of the imperial parliament which granted colonies their legislative power, their Lordships stated, “that these young communities would work out their own constitutional salvation”.

The judgement appeared to have some alarming logical consequences for states not used to the idea that their constitutions were flexible. If state parliaments could amend the tenure of judges merely by implication, was it also within their plenary power to legislate away judicial independence altogether? And what of the fate of the Upper Houses – considered by some at the time to be carbuncles on democracy which needed lancing – could they too be simply done away with? This was a fear which would famously soon materialise in Queensland, and one which would snarl its way through corridors of power in New South Wales for decades to come.

Contemporary Use of ‘Manner and Form’ Provisions

There was, however, a partial solution. When the Privy Council asserted in McCawley that state parliaments were “the master of (their) own household”, it immediately issued the caveat: “except in so far as (their) powers have in special cases been restricted”. States were thus put on notice. If they wanted to make it more difficult to amend fundamental aspects of their constitutional framework, they could use the protective force of a manner and form provision.

The states could unquestionably pass such provisions, due to section 5 of the Colonial Laws Validity Act (largely replicated by section 6 of the Australia Acts, passed in 1986). These provisions effectively inhibit parliamentary sovereignty by restricting future parliaments from amending certain constitutional provisions in an ordinary way. Manner and form provisions were used prior to McCawley. Queensland’s 1867 Constitution Act, for example, included a section requiring a two-thirds majority in both Houses before a bill altering the Legislative Council could be presented to the Governor for assent. Such provisions have subsequently become more numerous and notable features of Australian state constitutions. They generally come in two forms: first, requirements that certain bills be passed by special or absolute majorities (such as in Tasmania where section 41A of the Constitution Act 1934 requires a two-thirds majority in the Assembly to pass a bill altering four year terms); second, requirements that certain bills be passed at referendums before being presented to the Governor for assent (bills which alter or abolish the offices of Governor in Queensland and Western Australia, or the Legislative Council in New South Wales, fall into this category). It may be a leap too far to say that McCawley directly caused the increase in the use of manner and form provisions. However, the Privy Council judgment arguably made their use more appealing by illuminating their protective value and removing lingering doubts as to their legal validity.

There are three important points to make here. First, because the Privy Council emphasised the plenary nature of state legislative power, manner and form provisions are only truly effective when they themselves are subject to a valid manner and form provision. This is known as double entrenchment. If manner and form provisions are not doubly entrenched, then they can be repealed in the ordinary manner, and in turn so can the part of the constitution which that provision seeks to protect.

Secondly, following the passing of section 6 of the Australia Act in 1986, state legislatures can only impose valid manner and form provisions in relation to laws “respecting the constitution, powers, and procedure of such legislature”. In light of the decision in Attorney-General (WA) v Marquet (2003) 217 CLR 545, section 6 appears to be the only valid basis for the enactment of such provisions. Therefore, attempts to entrench, for example, aspects of the judiciary in New South Wales, local government in Queensland and public ownership of water services in Victoria appear to be legally ineffective, as such laws do not concern “the constitution, powers, and procedure of such legislature(s)”. Validly passed manner and form provisions are therefore a narrow exception to the principle that state constitutions are flexible.

Finally, further exceptions to this principle have also been discovered in recent decades in the Australian Constitution. The Kable doctrine, for example, prohibits state parliaments from passing laws which deprive state courts and judges of their essential characteristics — and especially, their integrity and independence.

It is interesting to consider whether the Industrial Arbitration Act, were it challenged in 2018 and not 1918, would infringe the Kable doctrine. Forge v Australian Securities and Investment Commission (2006) 228 CLR 45 suggests that the appointment of non-permanent or acting judges, in certain circumstances, may breach the Kable doctrine. McCawley’s appointment in 1917 to the Supreme Court meant that one in six Supreme Court judges were appointed not for life, but for 7 years. Would such a high proportion of non-permanent judges impermissibly alter the character of the Supreme Court?

Conclusion

McCawley represents a watershed moment in Australia’s constitutional development. The case confirmed that the imperial parliament crafted colonial (now state) legislatures in the British constitutional model. State constitutions are therefore flexible, and the plenary nature of state legislative power means states are free to work out their own constitutional salvation.

This Diceyan thought which informs state constitutions, however, is not untrammelled. The decision of the Privy Council in McCawley also confirms that validly passed manner and form provisions apply a handbrake on parliamentary sovereignty.

The Kable line of cases now act as an additional handbrake. While it is interesting to reflect on the impact the Kable doctrine would have had on the specific facts of McCawley, Isaacs and Rich’s JJ’s fundamental proposition that state constitutions are flexible has an enduring quality a century on. If additional limits on state legislative power are to be discovered within the Australian Constitution, it will be interesting to see if the principle retains its potency in another 100 years.

 

Chris Piggott-McKellar has worked as a journalist and media/public affairs advisor in business and politics throughout Queensland, the Northern Territory and the United Kingdom, where he currently resides. From 2014 to early 2018 he was the chief speechwriter for the Queensland Governor, His Excellency the Honourable Paul de Jersey AC. He holds a Bachelor of Communication from Bond University, and is currently completing his Juris Doctor at the University of Southern Queensland.

Suggested citation:  Chris Pigott-McKellar, ‘Dancing with Dicey: A Century of Flexible State Constitutions’ on AUSPUBLAW (19  September 2018) <https://auspublaw.org/2018/09/dancing-with-dicey-a-century-of-flexible-state-constitutions/>.