Queensland v Commonwealth

High Court of Australia|1977-07-01|Before: Aickin JJ

For the reasons I have given I would, if it were not for the authority of South Australia v. The Commonwealth [9] , have held a clear opinion that s. 221 (1) (a) is ultra vires.

It is, however, one thing to hold a clear opinion opposed to a decision of this Court and another thing to decline to follow the decision. After full consideration, however, I have come to the conclusion that upon the question of the validity of par. (a) of s. 221 (1) I should take the exceptional course of not following the decision.

I shall summarise my reasons for this view and then develop a little more fully the first of the reasons I shall give. It is that I regard the decision as isolated, as receiving no support from prior decisions and as forming no part of what in one metaphor is called a stream of authority and in another a catena of cases. Secondly, I think the decision gives an application to the constitutional doctrine of incidental powers which may have great consequences and which I believe to be unsound. What I have said already in dealing in principle with the validity of s. 221 (1) (a) will be enough to indicate why I say this. In the third place the question relates to the Constitution and falls within s. 74 and affects the States in many aspects besides "uniform tax". The foregoing reasons, though stated separately, are inter-dependent but in combination they appear to me to form ground enough for departing on this point from the authority of South Australia v. The Commonwealth.

, and he went on to deal in detail with each of those three reasons. McTiernan J. said [11] that he considered that his previous decision on this point was based on the defence power but could not be justified under the taxation power as the other members of that Court thought it could. He therefore did not follow the earlier decision "because I think it is manifestly wrong". Kitto J. agreed with Dixon C.J. and Taylor J. referred to the wartime circumstances in which the predecessor of s. 221 (1) (a) was enacted and the manner in which it then operated and said [12] : These considerations induce me to think that the question which now arises in relation to s. 221 (1) (a) is clearly distinguishable from the question which arose in South Australia v. The Commonwealth and that nothing that was then said requires us to conclude that the sub-section, as re-enacted, is valid. 1. (1942) 65 C.L.R. 373. 2. (1957) 99 C.L.R., at pp. 615-616. 3. (1942) 65 C.L.R. 373. 4. (1957) 99 C.L.R., at pp. 625-626. 5. (1957) 99 C.L.R., at p. 661.

In The Commonwealth v. Cigamatic Pty. Ltd. (in liq.) [13] , the Court (Dixon C.J., Kitto, Menzies, Windeyer and Owen JJ., McTiernan and Taylor JJ. dissenting) overruled the decision In re Foreman & Sons Pty. Ltd.; Uther v. Federal Commissioner of Taxation (Uther's Case) [14] (Latham C.J., Rich, Starke and Williams JJ., Dixon J. dissenting) in so far as it treated as valid provisions of s. 297 of the Companies Act, 1936 N.S.W. which provided an order of priority for the payment of debts in a company liquidation which was inconsistent with the priority due to Crown debts when in an administration of assets they come into competition with debts of equal degree due to subjects of the Crown. Uther's Case had decided that the State Act overrode the claims of the Crown in right of the Commonwealth. Dixon C.J. said [15] :

Indeed in Uther's Case Rich J. actually says: "In so far as the right of the Crown in the right of the Commonwealth to rank as a preferential creditor is based merely on the prerogative of the Crown as such, I see no reason why the State legislature cannot validly abridge or abolish it just as it could any other Crown prerogative of this sort". Except by adopting such a doctrine I cannot see how it could be thought that State legislative power could directly deprive the Commonwealth of the priority to which it is entitled under the law derived from the prerogative. Believing, as I do, that the doctrine thus involved is a fundamental error in a constitutional principle that spreads far beyond the mere preference of debts owing to the Commonwealth I do not think we should treat Uther's Case as a decisive authority upon that question which we should regard as binding. It is not a question, as it appears to me, of interpreting some positive power of the State over a given subject matter. It is not a question of making some implication in favour of the Commonwealth restraining some acknowledged legislative power of the State. If you express the priority belonging to the Commonwealth as a prerogative of the Crown in right of the Commonwealth, the question is whether the legislative powers of the States could extend over one of the prerogatives of the Crown in right of the Commonwealth. Kitto J. agreed with Dixon C.J. Menzies J. said [16] : I have come to the conclusion that the dissenting judgment was correct and the Commonwealth Constitution does not permit a State parliament to deprive the Crown in right of the Commonwealth of its prerogative rights. In so far as Uther's Case decided to the contrary it should, in my opinion, be overruled. In justification for this conclusion I cannot do more than express my assent to the dissenting judgment of Dixon J. on the point in question. Were the matter not one of vital constitutional importance I would have been disposed to accede to the plea of stare decisis, notwithstanding the diversity of the paths whereby the members of the Court who constituted a majority arrived at their conclusion, but on such a fundamental matter a "clear conviction must find expression in the appropriate judgment", to use the language of Viscount Simonds in Attorney-General for Australia v. The Queen [17] . Windeyer J. agreed with Dixon C.J. and Owen J. agreed with Menzies J. Taylor J. in dissenting said [18] : The decision in Uther's Case has stood for some sixteen years and during this period it has regulated the respective rights of parties in winding-up administrations, and no doubt, the uniform Companies Acts of the various States which have been enacted recently were framed on the view that Uther's Case authoritatively settled the substantial question with which it dealt. These are cogent matters for consideration in determining whether we should disturb the decision but if it is to be reconsidered then both the constitutional question with which the Court was then concerned and the effect of s. 32 of the Sales Tax Act are open to re-examination. 1. (1962) 108 C.L.R. 372. 2. (1947) 74 C.L.R. 508. 3. (1962) 108 C.L.R., at pp. 377-378. 4. (1962) 108 C.L.R., at p. 389. 5. (1957) 95 C.L.R. 529, at p. 548; [1957] A.C. 288, at p. 323. 6. (1962) 108 C.L.R., at p. 385.

The cases to which I have referred above show that some general considerations have emerged which assist in the determination of the question whether a previous constitutional decision regarded as erroneous may, or should, be overruled. The first is that there should be no inhibitions about overruling a decision, the error of which has been made manifest by later cases which however have not directly overruled it. The second is that the Court will be slow to overrule, or should refuse to overrule, cases which "go with a definite stream of authority" and do not "conflict with well established principle". The third is whether the prior decision can be confined as an authority to the precise question which it decided or whether its consequences would extend beyond that question. The fourth is whether the prior decision is isolated "as receiving no support from prior decisions and as forming no part of what in one metaphor is called a stream of authority and in another a catena of cases." The fifth is whether it concerns "so fundamental a provision of the Constitution", or involves a question of such "vital constitutional importance", that its consequences are likely to be far reaching even though not immediately foreseeable in detail. It is obvious that this list cannot be regarded as exhaustive and that the factors overlap to some extent.

One further relevant consideration remains to be mentioned. Thomas' Case [19] and Hughes and Vale Pty. Ltd. v. New South Wales [20] were decided at a time when an appeal by special leave lay to the Privy Council in respect of the kind of matters dealt with in each case. That position was changed in relation to constitutional matters and all matters of federal jurisdiction by the Privy Council (Limitation of Appeals) Act 1968, and in respect of all other matters by the Privy Council (Appeals from the High Court) Act 1975, so that this Court is now in all respects a court of ultimate appeal. The fact that error can no longer be corrected elsewhere must change our approach to the overruling of our own decisions, at least to some extent. It remains however a serious step, not lightly to be undertaken.

(1949) 77 C.L.R. 493. 2. (1953) 87 C.L.R. 49.

In seeking to apply such guidance as I can obtain from the cases to which I have referred, as well as other instances where the Court has overruled a previous decision, I have formed the view that this is not a case where it can be said that the previous decision has been "acted upon" in the sense of the discussion in cases such as Geelong Harbour Trust Commissioners v. Gibbs Bright & Co. [21] andPoint v. Federal Commissioner of Taxation [No. 2] [22] , notwithstanding that elections have been held and persons so elected have sat in each House and acted as members thereof.

(1970) 122 C.L.R. 504 (H.C.); (1974) 129 C.L.R. 576; [1974] A.C. 710 (P.C.). 2. (1971) 124 C.L.R. 669.

Neither do I find it persuasive to say that a case is either so recent, or of such long standing, that it should not be overruled. It cannot be the proper approach to say that only cases which have stood for a moderate, but not excessive, length of time may be overruled. Neither common sense nor precedent supports such a view. In truth the arguments advanced in this case, save as to the age of the prior decision, would be equally applicable to almost every occasion in which the Court has overruled a previous decision. Each such argument raises an important matter for consideration but no single one of such arguments, nor all in combination, is necessarily decisive.

The decision in Western Australia v. The Commonwealth [23] in 1975 cannot be described as going with a definite stream of authority. It is not one which can be confined to the precise point there decided, as is demonstrated by the reliance on its reasoning to support the legislation concerning "Territory members" of the House of Representatives. It is one which has far-reaching consequences for the structure of the Parliament of the Commonwealth, the full extent of which is not yet visible. It is the first and only decision on a fundamental question concerning the status of States and Territories in the federal structure and the composition of the Parliament in the "indissoluble federal union". For one who takes a different view as to the meaning of the constitutional provisions and the significance of the Constitution read as a whole, the effect of that decision upon the structure of the Parliament and the federation itself, and on what I regard as fundamental constitutional principle, provides the basis and the justification, in the absence of any settled stream of authority, for concluding that it is proper that the decision should be overruled.

High Court of Australia Barwick C.J. Gibbs, Stephen, Mason, Jacobs, Murphy and Aickin JJ. Queensland v Commonwealth [1977] HCA 60

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