Victoria v Commonwealth

Victoria v Commonwealth - [1996] HCA 56 - HCA 1996 case summary — Zoe

[72]

The limitation consists of two elements: (1) the prohibition against discrimination which involves the placing on the States of special burdens or disabilities ("the limitation against discrimination") and (2) the prohibition against laws of general application which operate to destroy or curtail the continued existence of the States or their capacity to function as governments. There are three matters to be noted with respect to the second element of the prohibition identified in Re Australian Education Union. First, it precludes the "exercise of Commonwealth legislative or executive powers "to control the States" " [82] for that would constitute "an exercise of power inconsistent with the continued existence of the States as independent entities and their capacity to function as such" [83] . The second matter is that, as was held in that case, it precludes laws which prevent a State from exercising its "right to determine the number and identity of the persons whom it wishes to employ, the term of appointment of such persons and, as well, the number and identity of the persons whom it wishes to dismiss on redundancy grounds" [84] . Finally, in the case of those employed at the higher levels of government, it precludes laws which prevent the State from determining "the terms and conditions on which those persons shall be engaged" [85] . 1. (1947) 74 CLR 31. 2. See, eg, Bank of NSW v The Commonwealth (1948) 76 CLR 1; Victoria v The Commonwealth (the Payroll Tax Case) (1971) 122 CLR 353; Victoria v Australian Building Construction Employees' and Builders Labourers' Federation (1982) 152 CLR 25; Queensland Electricity Commission v The Commonwealth (1985) 159 CLR 192; Re Lee; Ex parte Harper (1986) 160 CLR 430; Re State Public Services Federation; Ex parte Attorney-General (WA) (1993) 178 CLR 249. 3. (1995) 184 CLR 188. 4. Re Australian Education Union (1995) 184 CLR 188 at 231. 5. Queensland Electricity Commission v The Commonwealth (1985) 159 CLR 192 at 247, per Deane J. 6. Re Australian Education Union (1995) 184 CLR 188 at 232. 7. Re Australian Education Union (1995) 184 CLR 188 at 232. 8. Re Australian Education Union (1995) 184 CLR 188 at 233.

[561]

leave the decision on whether Australia should comply with its international obligations in the hands of the individual States as well as the Commonwealth, for the Commonwealth would then lack sufficient legislative power to fully implement the treaty. He continued: The ramifications of such a fragmentation of the decision-making process as it affects the assumption and implementation by Australia of its international obligations are altogether too disturbing to contemplate. Such a division of responsibility between the Commonwealth and each of the States would [be] a certain recipe for indecision and confusion, seriously weakening Australia's stance and standing in international affairs. But Australia is a federation and a "fragmentation" of the decision-making process is part and parcel of a federal system. Indeed, it is one of the reasons for choosing that system of government and may be seen as a virtue rather than as a vice. In a recent decision of the United States Supreme Court, United States v Lopez [197] , the Court refused to adopt an interpretation of the interstate commerce clause in the United States Constitution which would have obliterated the distinction between interstate and intrastate commerce. "To do so", the opinion of the Court said [198] , "would require us to conclude that the Constitution's enumeration of powers does not presuppose something not enumerated". In a concurring judgment, Kennedy J, with whom O'Connor J agreed, pointed out that it is a feature of federalism that the power "surrendered by the people" is divided between governments so as to secure "the liberties that derive from a diffusion of sovereign power" [199] . Accepting, as we must, that the system of government chosen by the people for this country is a federal system, it is difficult to see why "such a fragmentation of the decision-making process" - which is nothing more than a division of power - should be "altogether too disturbing to contemplate". 1. (1982) 153 CLR 168 at 225. 2. (1995) 131 Law Ed 2d 626. 3. United States v Lopez (1995) 131 Law Ed 2d 626 at 643. 4. United States v Lopez (1995) 131 Law Ed 2d 626 at 648-649, quoting Coleman v Thompson (1991) 501 US 722 at 759.

[568]

It will not be enough that the challenged law gives effect to treaty obligations. A treaty with another country, whether or not the result of a collusive arrangement, which is on a topic neither of especial concern to the relationship between Australia and that other country nor of general international concern will not be likely to survive that scrutiny. The difficulty in giving effect to those remarks is that a bona fide treaty will be all but conclusive evidence of either special or general international concern. Moreover, the requirement of international concern as it has developed since Koowarta has not served to confine the ambit of the external affairs power but has expanded it. International concern of itself has become a touchstone, and thus there is no need for a treaty at all [206] . And the matters which are capable of being the subject of international concern, albeit of an entirely domestic character, are even more extensive, if that is possible, than the matters which are likely to be the subject of a treaty. Recognising the breadth of the term "international concern", which he had earlier described as "not difficult to satisfy" [207] , Brennan J in Polyukhovich v The Commonwealth [208] attempted to rein it in by saying: [U]nless standards are broadly adhered to or are likely to be broadly adhered to in international practice and unless those standards are expressed in terms which clearly state the expectation of the community of nations, the subject of those standards cannot be described as a true matter of international concern. It may be that there are few occasions when the external affairs power is enlivened by the existence of a matter of international concern without a corresponding obligation in international law, but whether the enlivening factor be an obligation or a concern it is necessary to define it with some precision in order to ascertain the scope of the power. As I read that passage, it means that the only way in which international concern may ordinarily be established is by reference to standards which are obligatory or tantamount to obligatory in international law. I doubt, with respect, whether that is what other judgments have meant by the term "international concern". But to adopt Brennan J's view is to say that ordinarily a treaty will provide the evidence, not only of international concern, but also of the extent of international concern. It is not, however, to say that international concern with regard to a particular subject matter cannot of itself be sufficient to support legislation upon that subject under the external affairs power. Indeed, Brennan J in the Tasmanian Dam Case [209] wished "to guard against a suggestion that it is necessary to find an obligation before one can find an external affair which enlivens the power under s 51(xxix)". When international concern is treated as a separate test of validity the same problems remain. Those problems can only be overcome by recognising that the fact that a matter is the subject of a treaty cannot be the criterion for deciding whether a law with respect to that subject matter is a law with respect to external affairs; the subject matter itself must exhibit sufficient characteristics of externality for that to be so. The touchstone of the external affairs power should be externality, not international concern. And if a law does exhibit the characteristic of externality, it should not matter whether the law implements a treaty or not. 1. Koowarta (1982) 153 CLR 168 at 216-217. 2. See the Tasmanian Dam Case (1983) 158 CLR 1 at 131-132, per Mason J; at 171-172, per Murphy J. 3. See the Tasmanian Dam Case (1983) 158 CLR 1 at 219. 4. (1991) 172 CLR 501 at 561-562. 5. (1983) 158 CLR 1 at 222.

Parties

Applicant/Plaintiff:

Victoria

Respondent/Defendant:

Commonwealth

Cases Cited (87)

High Court of Australia Brennan CJ Dawson, Toohey, Gaudron, McHugh and Gummow JJ Victoria v Commonwealth [1996] HCA 56

Later, in Chow Hung Ching v The King [37] , Dixon J said that a treaty, "at all events one which does not terminate a state of war", has no legal effect upon the rights and duties of citizens and, "speaking generally no power resides in the Crown to compel them to obey the provisions of a treaty". His Honour cited Walker v Baird [38] . 1. Certain exceptions or qualifications are identified and discussed by J G Starke in "The High Court of Australia and the rule in Walker v Baird [1892] AC 491 ", Australian Law Journal, vol 48 (1974) 368. 2. [1892] AC 491 at 492. 3. vol 6, "Constitutional Law", pp 440-441. 4. (1948) 77 CLR 449 at 478; see also Brown v Lizars (1905) 2 CLR 837 at 851, 860; Bradley v The Commonwealth (1973) 128 CLR 557 at 582; Simsek v Macphee (1982) 148 CLR 636 at 641-642. 5. [1892] AC 491 at 497.

(1983) 158 CLR 1

(1982) 153 CLR 168

(1933) 49 CLR 242

(1937) 58 CLR 528

(1975) 135 CLR 337

(1936) 55 CLR 608

(1974) 131 CLR 477

(1948) 77 CLR 449

(1905) 2 CLR 837

(1973) 128 CLR 557

(1982) 148 CLR 636

(1995) 183 CLR 273

(1949) 79 CLR 121

(1906) 4 CLR 265

(1994) 181 CLR 18

(1991) 172 CLR 501

(1983) 153 CLR 297

(1908) 6 CLR 309

(1965) 113 CLR 54

(1988) 164 CLR 261

(1994) 182 CLR 272

(1992) 176 CLR 1

(1910) 11 CLR 311

(1949) 78 CLR 389

(1989) 166 CLR 311

(1947) 74 CLR 31

(1948) 76 CLR 1

(1971) 122 CLR 353

(1982) 152 CLR 25

(1985) 159 CLR 192

(1986) 160 CLR 430

(1993) 178 CLR 249

(1995) 184 CLR 188

(1989) 166 CLR 518

(1939) 61 CLR 634

(1943) 68 CLR 87

(1971) 124 CLR 468

(1986) 161 CLR 376

(1910) 11 CLR 1

(1935) 51 CLR 677

(1995) 183 CLR 323

(1951) 84 CLR 442

(1949) 78 CLR 366

(1953) 89 CLR 461

(1980) 145 CLR 68

(1931) 45 CLR 409

(1976) 134 CLR 56

(1912) 15 CLR 636

(1984) 159 CLR 163

(1913) 16 CLR 715

(1992) 177 CLR 1

(1978) 141 CLR 204

(1913) 17 CLR 261

(1948) 77 CLR 84

(1962) 107 CLR 46

(1992) 175 CLR 453

(1995) 183 CLR 373

(1955) 92 CLR 529

(1977) 137 CLR 545

(1983) 152 CLR 632

(1990) 171 CLR 338

(1951) 84 CLR 265

(1980) 144 CLR 462

(1949) 79 CLR 201

(1976) 138 CLR 492

(1987) 162 CLR 271

(1981) 147 CLR 259

(1982) 150 CLR 169

(1979) 143 CLR 190

(1979) 142 CLR 397

(1957) 96 CLR 261

(1960) 105 CLR 188

(1969) 119 CLR 301

(1972) 123 CLR 673

(1944) 68 CLR 261

(1993) 176 CLR 480

(1994) 179 CLR 155

(1994) 179 CLR 297

(1961) 105 CLR 361

(1990) 169 CLR 482

(1951) 83 CLR 1

(1965) 114 CLR 1

(1956) 94 CLR 254

(1991) 171 CLR 232

(1984) 154 CLR 311

At a glance

Court

Decision date

Before

Source

Judgment (574 paragraphs)

Parties

Cases Cited (87)