THE ROLE OF A CONSTITUTIONAL COURT IN A FEDERATION

A COMPARISON OF THE AUSTRALIAN ANDTHE UNITED STATES EXPERIENCE

SIR ANTHONY MASON·

The Australian National University, the Sir Robert Menzies Memorial Trustand the University of Virginia Law School have established an annual MenziesLecture Series. The Lectures are held in honour ofSir Robert Menzies andmark his contribution to the law and public life. The Lectures are given inalternate years at the Law Schools of the University of Virginia and theAustralian National University. The Lectures will be published in the "FederalLaw Review". Thefirst Menzies Lecturer was The Honourable Sir AnthonyMason of the High Court ofAustralia who visited the University of Virginiain October 1985. The following article is based on Sir Anthony's lecture.

To an Australian lawyer the surprising feature of the contemporaryAmerican scene is the satisfaction, indeed the pride, "that Americans take intheir Constitution. To be sure, continuous and contentious debate surroundsthe Supreme Court's interpretation of particular provisions and the Court'smethods of reaching those interpretations. But Americans generally have astrong conviction that the United States Constitution, despite its age, is justabout as good a constitution as one can hope to get. Yet the AustralianConstitution, which is less than one hundred years old and, in its federalaspects, has much in common with its American model, is frequentlycondemned - principally by our politicians - as a product of the horseand buggy age. The thrust of this criticism is not so much that the Constitutioninadequately protects individual rights, as that it is deficient as an instrumentof government, notably in distributing powers between the centre and thestates.

Dissatisfaction with the Australian Constitution as early as 1973 led to theestablishment of a biennial convention for the purpose of recommendingconstitutional amendments. After floundering for twelve years, it seems tohave run aground. Not that the delegates have declared that the existingConstitution is satisfactory. Rather, they simply cannot agree amongthemselves upon amendments that are necessary or desirable. Their failureto agree might suggest that nothing is seriously wrong with the Constitutionand that such" difficulties as we have arise, not from faults in our system,but in ourselves. Perhaps we lack the great sense of community that unitesthe American people and their profound sense of understanding which enableseach constituent piece in a complex constitutional mosaic to appreciate andrespect the role of the other pieces in that mosaic. In fairness to the delegatesto the Convention it should be said that it was optimistic to expect very muchfrom them. A crisis such as a War of Independence, a Civil War or a proposedunion of separate communities in a federation is required to kindle the

* The Honourable Sir Anthony Frank Mason, KB, CBE, Justice of the High Court ofAustralia.

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statesmanship, vision and sense of purpose essential to the success of aConstitutional Convention.

More recently on 19 December 1985 the Australian Government announcedthe appointment of a Constitutional Commission of experts under thechairmanship of Sir Maurice Byers QC, former Solicitor-General for theCommonwealth to undertake, with the assistance of five AdvisoryCommittees, a fundamental review of the Australian Constitution. TheCommission is required to report on or before 30 June 1988. In some areasreform would be advantageous. Take, for example, the federal arbitrationpower.! It is too limited and too rigid. It perpetuates our system ofindustrial arbitration because it is the only power that Parliament has withrespect to industrial relations. However, if past history is a reliable guideonly a bold prophet would predict that the Commission's deliberations willresult in wide-ranging constitutional reform. The Australian electorate hasproved notoriously resistant to constitutional change.

The need for constitutional reform is directly affected by the methods ofconstitutional interpretation adopted by courts, for if courts apply staticrather than dynamic principles of interpretation, the case for reform will beso much the stronger. The method of interpretation a court pursues has aclose inter-relationship with the court's perception of its role. The two areso closely interwoven that an understanding of the interpretive techniquesof the High Court of Australia and the Supreme Court of the United Statesis essential to an appreciation of their roles in their respective federal systems.

Because the operation of a constitution may vary according to the techniqueof interpretation that a court adopts, constitutional interpretation is a sourceof continuing debate in Australia and the United States. The debates in thetwo countries admittedly have different focuses. In the United States it centreson the guarantees of fundamental rights, provisions which are not found inthe Australian Constitution. In particular, the contentious issues haverevolved around the role of the Supreme Court and the lower federal courtsin restricting, pursuant to the Bill of Rights, state government action. Thecontentious issues in Australian constitutional law have also involvedfederalism, but from a different perspective. Usually the controversysurrounds the High Court's construction of the limits of federal power vis­a-vis the states. Although the focuses of debate are somewhat different, theconstitutions of Australia and the United States bear a number of importantsimilarities.

COMPARING CONSTITUTIONS

The fundamental common features of the two Constitutions are - (1) ademocratically elected legislature consisting of a House of Representatives,whose members are directly chosen by the people, and a Senate composedof members representing the states and territories, directly chosen by thepeople; (2) the separation of powers within the federal government; (3) the

1 Section 51 (xxxv) of the Constitution.

1986] The Role of a Constitutional Court 3

division of powers between the central and state legislatures, on the footingthat the former enjoys "enumerated" powers and the latter residual powers;and (4) the provisions relating to the judiciary and the exercise of judicialpower. Apart from the Republic-Monarchy distinction, the principaldepartures between the two Constitutions are (a) our retention of theParliamentary system (involving an executive government chosen from andresponsible to Parliament) in preference to the Presidential system and (b)the incorporation in the United States Constitution of the provisions designedto protect individual rights and liberties from violation by government. Andthere is a theoretical difference. Our Constitution was brought into existenceby a statute of the Imperial Parliament enacted in the exercise of its legalsovereignty throughout the King's dominions. The United States Constitutionproceeded from the sovereign will of the American people.

The High Court of Australia was created with a constitutional role similarto that of the Supreme Court. Like its United States model, the Constitutionmakes no specific provision for judicial review for constitutional validity.Yet the framers plainly intended that the Court undertake this function. Incontrast to the Supreme Court, however, the High Court was set up as ageneral court of appeal on matters both of federal and of state law, andgeneral appeals form the major part of its work-load.

Although originally decisions of the High Court were subject to an appealto the Privy Council, except in relation to constitutional questions affectingthe limits inter se of the powers of the Commonwealth and of the states,the appeal in federal matters was eliminated in 19682 and other appeals wereeffectively abolished in their entirety in 1975.3 Thereafter the appeal fromstate courts to the Privy Council lingered fitfully on. On 3 March 1986,however, that appeal was terminated, subject only to pending proceedings,along with the termination of other tesidual constitutional links betweenAustralia and the United Kingdom. This break was achieved, much in thesame way as the "patriation" of the Canadian Constitution in 1982, bylegislation by the Commonwealth Parliament, the Parliaments of theAustralian states and the United Kingdom Parliament.4

The Australian Constitution gave the Federal Parliament power to vestfederal jurisdiction in state courts in addition to the authority to set up federalcourts. 5 By relying on the exercise of this power and refraining fromcreating federal courts, the Federal Parliament succeeded in preserving aunified court system until the 1970s when Parliament set about the creation

2 Privy Council (Limitation of Appeals) Act 1968 (Cth).3 Privy Council (Appeals from the High Court) Act 1975 (Cth).4 The first step was the enactment by all six Australian states of the Australia (Request) Act

1985 requesting and concurring in the exercise by the Federal Parliament, purportedly pursuantto s 51 (xxxviii) of the Constitution, of the power to pass legislation terminating residualconstitutional links. The second step was the enactment by the Federal Parliament of the Aus­tralia Act 1986, containing the provisions requested, and the Australia (Request and Consent) Act1985 which requested the enactment by the United Kingdom of an Act in the terms set out inthe Schedule. The Australia Act 1986 (UK) was brought into operation by a proclamation signedby the Queen on 2 March 1986. The constitutional links which were thereby severed are notedin (1986) 60 ALl, 254-255.

5 Section 77 of the Constitution.

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of federal courts, namely the Federal Court of Australia and the FamilyCourt. The creation of these new courts has led to jurisdictional problemsthat have been exacerbated by making part of the jurisdiction of federal courtsexclusive of the jurisdiction of State courts. Nevertheless the position of theHigh Court as an ultimate general court of appeal from state and federalcourts ensures a greater degree of uniformity in judicial decision-making thanoccurs in the United States.

2 COMPARING INTERPRETIVE TECHNIQUES

A The Doctrine of Parliamentary Supremacy

Although our founders drew heavily on the United States Constitution,both in form and substance, they brought into existence a Constitution withina framework of English legal traditions. In one notable respect their departurefrom the American model resulted in a marked inconsistency with one ofits basic features. The substitution of the parliamentary for the presidentialsystem was a significant inroad into the separation of powers. It explainswhy that doctrine, except in relation to judicial power where its impact hasbeen disproportionate, has had less influence on our constitutional law. Forpresent purposes what is important is that the Constitution was framed andhas been interpreted in the light of two concepts basic to English law - thesupremacy of Parliament and the supremacy of the law.

Our ingrained belief in these concepts, especially the supremacy ofParliament, which was so opposed to the articles of faith that inspired theAmerican adoption of the Bill of Rights and the full separation of powers,has been largely responsible for an unwillingness on the part of our courtsto undertake an activist role. They led, in conjunction with other Australianexperiences arising from the participation of judges in the controversial worldof industrial relations - witness the position of the Australian Conciliationand Arbitration Commission - to the belief that changes in the law werefor Parliament and that the standing of the judiciary would be damaged byjudicial participation in the determination of political issues, even of policyissues. This belief naturally led to the adoption of an approach toconstitutional and statutory interpretation, described as "Legalism", that ismore formal than that adopted by the Supreme Court of the United States.

B The Doctrine of Legalism

Sir Owen Dixon expressed the doctrine in this way:

. . . close to adherence to legal reasoning is the only way to maintain the confidenceof all parties· in Federal conflicts. It may be that the coun is thought to beexcessively legalistic. I should be sorry to think that it is anything else. Thereis no other safe guide to judicial decisions in great conflicts than a strict andcomplete legalism."6

6 Address on being sworn'in as Chief Justice reported in (1952) 85 CLR xi, at xiii-xiv.

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The asserted advantage of a legalistic approach is that decisions proceed fromthe application of objective legal rules and principles of interpretation ratherthan from the subjective values of the justices who make the decisions.Unfortunately, it is impossible to interpret any instrument, let alone aconstitution, divorced from valu~. To the extent they are taken into account,they should be acknowledged and should be accepted community values ratherthan mere personal values. The ever present danger is that "strict and completelegalism" will be a cloak for undisclosed and unidentified policy values.7

Legalism, when coupled with the doctrine of stare decisis:has a subtle andformidable conservative illfluence. When judges fail to discuss the underlyingvalues influencing a judgment, it is difficult to debate the appropriatenessof those values. As judges who are unaware of the original underlying values,subsequently apply that precedent in accordance with the doctrine of staredecisis, those hidden values are reproduced in the new judgment - eventhough the community values may have changed.

The High Court has more fully embraced this conservative interpretiveapproach than the Supreme Court, in large part because of its different diet.The High Court has general appellate jurisdiction and has a mainly non­constitutional workload; the Supreme Court is competent only in federal lawmatters and, in enforcing the Bill of Rights, has become something of a rovingconstitutional commission. While the High Court grapples with thecomplexities of Commonwealth and state statutes, the Supreme Courtexpounds the meaning of such constitutional proscriptions as thoseprohibiting the states from depriving anyone "of life, libertY,or property,without due process of law", or denying anyone "the equal protection of thelaws."

Statutes more readily lend themselves to a legalistic approach. They oftenhave a relatively narrow focus and are fairly detailed, especially Australianstatutes which are more detailed than the American. Moreover, the argumentthat the legislature can amend the law if circumstances change carries someforce. However, a constitution, and especially a Bill of Rights, invites or ratherrequires a court to do more. Constitutions are documents framed in generalterms to accommodate the changing course of events, so that courtsinterpreting them must take account of community values. Additionally,amending constitutions, while possible, is enormously difficult. Unless thecourts openly grapple with the issues. they will not be debated.

Because the Supreme Court's caseload involves a high proportion ofconstitutional (or Bill or Rights) matters, it has adopted an openly policyoriented approach. The High Court, immersed in the common law andstatutes, has in the past been less inclined to veer from a legalistic approach.As the High Court moves away from "strict and complete legalism" andtoward a more policy oriented constitutional interpretation, it is a naturalparallel that t'he Court place greater emphasis on the purposive constructionof statutes.

7 McWhinney, Supreme Court and iudicial Law-Making: Constitutional Review (1968)91-94.

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C Judicial Review

The legitimacy of judicial review, which has been criticized from time totime on the ground that it is counter-majoritarian, has not been of the sameconcern to us as it was to Learned Hand J and later American lawyers. Inone respect this confidence in the legitimacy of judicial review is a littlesurprising. The tradition of parliamentary supremacy might have generatedstronger opposition to the counter-majoritarian character of judicial review.But the Constitution, in enabling Parliament to confer jurisdiction on theHigh Court in matters arising under the Constitution or involving itsinterpretation, and in prohibiting appeals to the Privy Council onconstitutional questions inter se in the absence of a certificate, impliedlyacknowledges the Court's responsibility for judicial review of federal statutesfor constitutional validity.8 Aware of Marbury v Madison9 and having theAmerican practice before them, the founders plainly intended that the Courtshould undertake that function, a function which had been undertaken bythe courts of the Australian colonies lO in accordance with the authority ofthe Privy Council. 11 Moreover, s 109 of the Constitution, in providing thata state statute is invalid to the extent of its inconsistency with a federal statute,contemplated that the courts would strike down inconsistent state laws.

An unqualified acceptance of the legitimacy of judicial review has led tothe view that courts have an obligation to exercise the jurisdiction inaccordance with the common law principle that they must exercisejurisdiction, unless there is a more appropriate forum. Consistently with thisview, there are few signs of the emergence of a "political questions"doctrine. 12

D Deference to Legislative Judgment

The Court has proceeded on the basis that, in interpreting the Constitutionand exercising its function of judicial review, it must determine for itself anyfacts on which constitutional validity depends. This approach is one of thefactors in the Court's past performance that has encouraged the expectationthat it will decide federal-state questions without deferring to the federalviewpoint. An indication of the strength of this expectation is that the federalgovernment does not argue for a presumption of constitutionality and theParliament has not adopted the Congressional practice of making legislativefindings on issues relating to constitutionality and of incorporating such

8 Sections 76(i) and 74 of the Constitution and see Sir Owen Dixon, "Marshall and theAustralian Constitution" in Jesting Pilate, at 174-175.

9 (1803) 5 US (l Cranch) 137.10 Rusden v Weeks (1861) 2 Legge 1406, at 1414-1416, 1419-1420; Baxter v Commissioners

of Taxation (1907) 4 CLR 1087, at 1125, and see Kingston v Gedd(I901) 27 VLR417, Sir OwenDixon, "Marshall and the Australian Constitution" (1955) 29 ALJ 420, at 425.

11 The Queen v Burah (1878) 3 AppCas 889, at 904.12 See Baker v Carr (1962) 369 US 186, at 217; cf Gerhardy v Brown (1985) 59 ALJR 311,

at 341-341; 57 ALR 472, at 523-524.

1986] The Role of a Constitutional Court 7

findings in its legislation. 13 The Court acknowledges, however, that thelegislature has a wide discretion in determining what is reasonable regulation,even of interstate trade. 14

The High Court determines for itself whether the regulated activities fallwithin the subject matter. Having undertaken this exercise, the Court thendecides whether the law deals with the subject matter by examining its legaloperation in terms of what it does in the way of creating or altering rights,powers and duties. 15 This analysis does not exclude regard to the practicaloperation of the lawl6 and, despite the earlier authorities, this practicaloperation of the law might extend to economic effects. I?

And when the question involves determining whether the statute is a meansfor effectuating an end within power, the Court recognizes that the matteris for Parliament to decide, so long as a reasonable connection exists betweenthe law and the subject matter of the power. 18 By its emphasis on the legaloperation of a statute the Court avoids the direct conflict with Parliamentwhich would arise on the more controversial issue of practical. operation ifit were to become the sole criterion of validity.

Accordingly, the High Court's relationship with the Parliament differs fromthat between the Supreme Court and Congress. A similar relationship mightdevelop in the future. The tradition of parliamentary supremacy might inclineus to defer to legislative judgment and embrace a presumption ofconstitutional validity of the kind reflected in decisions of the Supreme Courton the commerce clause. Although this development would be inconsistentwith existing community expectations, the expectations held of a court arevery much the product of what it says and does. If the Court's method ofinterpretation becomes less formal and more concerned with policy factors,this development might generate a different set of expectations. Becausefederal powers are expressed in terms -of general topics lacking definite orestablished boundaries, with a content that varies with time and circumstance,the text of the Constitution does not always provide instructive guidance.If in these situations, we were to take account of the suitability of the relevantactivity for federal control, a new set of problems would arise. If we makeassessments of an activity's aptness for federal or state control, others mightpoint out that as lawyers we have no special claim to authority in thesematters. On the other hand, if we defer to legislative judgment by applyingthe presumption of ,constitutionality applied by the Supreme Court, some

13 Compare Hodel v Virginia Surface Mining & Reclamation Association Inc. (1981) 452 US264, at 277; with Australian Communist Party v The Commonwealth (1951) 83 CLR 1, at 224,243-244, 263-265.

14 Permewan Wright Consolidated Pty Ltd v Trewhitt (1979) 145 CLR 1, at 37 (per MasonJ .).

15 Fairfax v Commissioner of Taxation (1965) 114 CLR 1, esp. at 7; Herald & Weekly Ltdv The Commonwealth (1966) 115 CLR 418; Murphyores Incorporated Pty Ltd v TheCommonwealth (1976) 136 CLR 1; Actors and Announcers Equity Association of Australiav Fontana Films Pty Ltd (1982) 150 CLR 169, at 191-195, 201-203, 216-217.

16 Herald & Weekly Times Ltd v The Commonwealth (1966) 115 CLR 418, at 436-437,442;Attorney-General (Vic) v The Commonwealth (1962) 107 CLR 529, at 543; Attorney-General(W.A.) v Australian National Airlines Commission (1976) 138 CLR 492, at 523.

17 Attorney-General (W.A.) v Australian National Airlines (1976) 138 CLR 492, at 523.18 Burton v Honan (1952) 86 CLR 169; Herald & Weekly Times, esp. at 436-437.

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might suggest that we are compromIsIng our independence by undulyfavouring the Commonwealth as against the states.

E Some Examples of the Difference between Australian andAmerican Interpretation of Constitutional Rights

Because the founders accepted, in conformity with prevailing English legalthinking, that the citizen's rights are best left to the protection of the commonlaw and because they were not concerned to protect the individual fromoppression by majority will, the Constitution contains very little in the wayof provisions .guarantee~ng new rights. The founders did not share theAmerican framers' lack of faith in parliamentary supremacy and their beliefthat it was necessary to protect minority rights against majority oppression.And the Court, influenc~d by the tradition of parliamentary supremacy, inthe absence of a solid anti-majoritarian basis in the Constitution, hasinterpreted these provisions so that they do not subtract significantly fromthat supremacy.

(1) nDirectly Chosen by the People"

There is a marked similarity between the language of art 1, s 2 of the UnitedStates Constitution and our s 24 relating to the election of members of theHouse of Representatives. The words "directly chosen by the people of theCommonwealth" reflects the words in art 1 s2 "chosen . .. by the peopleof the several states". Our section was modelled on the American provisionlong before the Supreme Court interpreted art 1, s 2 as prescribing the "oneperson one vote" value. As a matter of language s 24 is as capable of yieldingthat value as art 1, s 2. In Attorney-General (Cth) ex rei. McKinlaY v TheCommonwealth19 the difference in American and Australian history wasassigned. as a substantial reason for our refusal to ad.opt the Baker v Carrointerpretation. But the doctrine of parliamentary supremacy was anotherfactor that played a part in the decision. Indeed, Barwick CJ specifically madethe point that the framers of the Australian Constitution accepted the doctrinewhereas the United States Constitution insisted on a system of checks andbalances and a Bill of Rights which was inconsistenfwith legislativesupremacy.21

(2) Trial by Jury

So far the same attitude has actuated the Court's interpretation of s 80of our Constitution which provides that "The trial on indictment of anyoffence against a law of the Commonwealth shall be by jury". The similarAmerican provision in art III, s 2(3) - "The trial of all· crimes, except incases of impeachment, shall be by jury" - has been read as a fundamentalguarantee of trial by jury.22 On the other hand, the Australian provision hasbeen interpreted as guaranteeing trial by jury only in cases where the trial

19 (1975) 135 CLR 1.. 20 Supra n 12.

21 Supra n 19.22 Duncan v Louisiana (1968) 391 US 145.

1986] The Role of a Constitutional Court 9

is on indictment, leaving Parliament free to determine whether any particularoffence shall be tried on indictment or summarily.23 The High Court hasdescribed the section as procedural only and, as a result, there are instancesin federal legislation of offences triable summarily that carry a penalty ofmore than one year's imprisonment.

The High Court arrived at this interpretation in Ex parte Lowenstein 24 inthe face of a powerful expression of the contrary view by Dixon and EvattJ J. They argued that s 80 must have been conceived as an importantsubstantial guarantee, not as a procedural provision of little value. However,the difference in the language of the two provisions, in particular, our failureto adopt the emphatic American command "The trial of all crimes ... shallbe by jury" is not without significance. And material in the ConventionDebates25 suggests that the delegates drafted the provision with theknowledge or intention that the provision enabled Parliament to decidewhether the trial of an offence should be by jury or summarily. If this wasthe attitude of the delegates, it was entirely consistent with the notion ofparliamentary supremacy which dominated their thinking and led to theirrejection of a Bill of Rights. Notwithstanding assertions that the interpretationof s 80 is "settled",26 recent judgments suggest that the Court might bewilling to reconsider the earlier decisions.27

(3) Non-establishment and Free Exercise of Religion

Section 116 of our Constitution provides "The Commonwealth shall notmake any law for establishing any religion, or for imposing any religiousobservance, or for prohibiting the free exercise of any religion ... ". Theframers modelled it on the First Amendment in the United StatesConstitution. Once again there are some differences in expression. Althoughthe First Amendment was not understood before 1900 to prohibit theprovision of financial assistance to a hospital or school connected with achurch, the establishment clause has recently received a much widerinterpretation from the Supreme Court. The Supreme court prescribed:

First, the statute must have a secular legislative purpose; second, its principalor primary effect must be one that neither advances nor inhibits religion ... finallythe statute must not foster an excessive government entanglement withreligion.28

Under this test, which has been the subject of strong judicial dissent,29 aidto church schools has been held invalid.

23 R v Archdall and Roskruge; ex parte Carrigan and Brown (1928) 41 CLR 128; R v Federal'Court ofBankruptcy; ex parte Lowenstein (1938) 59 CLR 556; Sachter v A-G' (Cth) (1954) 94CLR 86, at 88; Zarb v Kennedy (1968) 121 CLR 283; Li Chia Hsing v Rankin (1978) 141 CLR182; Kingswell v The Queen (1985) 62 ALR 161.

24 R v Federal Court of Bankruptcy; ex parte Lowenstein (1937) 57 CLR 765.25 See Conv. Debs., Melb., at 350-354 (discussion of Mr Higgins); Conv. Debs., Melb., at

1894-1895.26 Kingswell, Note 23 supra, at 169; Brown v The Queen (1986) 60 ALJR 257, at 260; 64

ALR 161, at 166, 168.27 See the judgments of Deane J in Kingswell and Brown.28 Lemon v Kurtzman (1971) 403 US 602, at 612-613.29 See Wallace v Jaffree, 86 LEd 2d 29, at 66 (Rehnquist J dissenting) ("The three-part test

represents a determined effort to craft a workable rule from an historically faulty doctrine; butthe rule can only be as sound as the doctrine it attempts to service." Ibid, at 78).

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We have not regarded the establishment clause in s 116 as travelling. sofar. We have read it as prohibiting a law that has the effect or purpose ofconstituting or recognizing a particular religion as a national institution.30

Although this is not the place to compare the merits of the competinginterpretations, I should point out that the United States interpretation hasgiven rise to very considerable difficulties in practice and has yielded decisionsthat are hard to reconcile.3)

(4) "Equal Rights"

A dramatic illustration of the difference in approach to interpretation isprovided by a comparison of s 117 with amendment XIV, s 1. Section 117,which is not as strongly worded as the American provision, provides "Asubject of the Queen, resident in any State, shall not be subject to anydisability which would not be equally applicable to him if he were a subjectof the Queen resident in such other State". On its face the provision appearsto be a "constitutional guarantee of equal rights to all residents in allStates".32 Yet the force of the words has been restrained by judicialinterpretation. The provision has been read as prohibiting disability ordiscrimination by reason of residence alone. Accordingly, a law givingpreference to those who are domiciled and resident within the state does notfall within reach of the prohibition. As a consequence, the High Court hasupheld the imposition of a lengthy period of residence within a state as acondition of the entitlement or right on the part of a lawyer in another stateto practise within the first state. This interpretation, which is much narrower

30 A-G (Vic) ex rei Black ~ The Commonwealth (1980) 146 CLR 559.31 In his sharp dissent in J,fTallace v Jaffee, then Associate Justice, now Chief Justice,

Rehnquist chronicled the Supreme Court's confusing establishment clause precedents:... A State may lend to parochial school school children geography textbooks thatcontain maps of the United States, but the State may not lend maps of the UnitedStates for use in geography class. A State may lend textbooks on American colonialhistory, but it may not lend a film on George Washington, or a film projector to showit in history class. A State may lend classroom workbooks, but may not lend workbooksin which the parochial school children write, thus rendering them nonreusable. A Statemay pay for bus transportation to religious schools but may not pay for bustransportation from the parochial school to the public zoo or natural history museumfor a field trip. A State may pay for diagnostic services conducted in the parochialschool but therapeutic services must be given in a different building; speech and hearing'services' conducted by the State inside the sectarian school are forbidden, but the Statemay conduct speech and hearing diagnostic testing inside the sectarian school.Exceptional parochial school students may receive counselling, but it must take placeoutside of the parochial school, such as in a trailer parked down the street. A State maygive cash to a parochial school to pay for the administratjon of State-written tests andstate-ordered reporting services, but it may not provide funds for teacher-prepared testson secular subjects. . ..

86 LEd 2d 29, 78-79 (citations omitted). For a critical analysis of the Supreme 'Court'sestablishment clause precedent, see Van Alstyne, "Trends in the Supreme Court: Mr Jefferson'sCrumbling Wall - A Comment on Lynch v Donnelly" 1984 Duke LJ 770. For other discussionsof the First Amendment religion clause precedent, see Greenawalt, "Religion as a Concept inConstitutional Law" 72 Calif LRev 753 (1984); Johnson, "Concepts and Compromise in FirstAmendment Religious Doctrine" 72 Calif LRev 877 (1984).

32 Henry v Boehm (1973) 128 CLR 482.

1986] The Role oj a Constitutional Court 11

than the interpretation accorded to the American provision, has been roundlycriticized.33 Again, the interpretation reflects a willingness to read downconstitutional prohibitions in conformity with a belief in the virtues ofparliamentary supremacy.34

(5) Comment

The illustrations I have given of the High Court's interpretation ofprovisions in the Constitution that are, or might amount to, guarantees, revealthat the doctrine of parliamentary supremacy, as expounded by its championssuch as Professor A V Dicey, have had a marked influence on theinterpretation, as well as the framing, of our Constitution. These provisionshave all been interpreted in conformity with that doctrine, with a view topreserving Parliament's freedom to enact such laws as it considersappropriate. This formal technique of interpretation is in itself a reflectionof a judicial philosophy associated with the same doctrine, namely, that policyissues, like changes in the law, are matters for Parliament and not for thecourts.

Australians have not seen legislative supremacy, as Americans saw it inthe eighteenth century and as they often still see it, as an instrument by whichmajority will can oppress a minority and threaten their fundamental rights.On the contrary we have regarded the United Kingdom, where parliamentarysupremacy is not qualified by any constitutional guarantees, as the shiningillustration of a free and democratic society in which the rights of theindividual are fully protected by law.

D A BillojRights?

The recent proposal to enact an Australian Bill of Rights is therefore asharp departure from our past traditions. Although it would not be entrenchedin the Constitution, the proposed Bill of Rights would bring about a changein the relationship between Parliament and the Court. Because Parliamentcould amend the Bill of Rights at any time, its supremacy would remain intact,though any amendment that involved a qualification of declared rightsfollowing a court decision would be a formidable political exercise. Theinterpretation of a Bill of Rights would call for a change in judicial attitudeand a different technique of interpretation. The traditional willingness to leavealteration of the law to Parliament would be of little avail if the elaborationof the content of fundamental rights were entrusted to administrative tribunalsand the courts.

Of course the notion of parliamentary supremacy dies hard. Canadaenacted first a statutory Bill of Rights, but found that the Canadian judgeswere reluctant to give the Bill of Rights an extensive operation. Whensubsequent acts of Parliament were challenged under the statutory Bill of

33 D Rose "Discrimination, Uniformity and Preference" in L Zines (ed.) Commentaries onthe Australian Constitution 219-229.

34 Note 32, supra at 488.

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Rights, the Canadian courts were inclined to find that the specific lawdisplaced the fundamental rights provision to the extent of any conflict. Inorder to overcome the dogged attachment of Canadian jurists toparliamentary supremacy, Canada adopted a constitutional Bill of Rights.

Some idea of the changes that a Bill of Rights would entail in the judicialrole can be gleaned from the commentary made by Sir·Gerard Brennan onthe paper presented by O'Connor J of the Supreme Court of the United Statesat the 23rd Legal Convention,35 though allowance must be made for the factthat his Honour was speaking of the interpretation of a Bill of Rights in aConstitution.

Those comments reflect a concern on the part of many judges thatinterpretation of a Bill of Rights would plunge them into deciding questionsbetter left for political rather than judicial determination. Some elementsin the American experience justify this concern. Decisions of the SupremeCourt of the United States in the areas of freedom of religion and freedomof speech. reveal many issues that would be more suitably resolved by thepolitical process.

The introduction of a Bill of Rights would create an upsurge in the workof administrative tribunals and the courts, and impose a corresponding burdenon government.·According to some, the cost and efficiency of go.vernment,at least in the federal sphere, has been significantly affected by a series ofrequirements imposed in the interests of protecting fundamental rights ­administrative appeals, the Ombudsman regime, freedom of information andanti-discrimination legislation. All this, so it is said, leads to the conclusion .that the federal government is already subject to sufficient restraints or checksand balances.

On the other hand the common law system, supplemented as it presentlyis by statutes designed to protect particular rights, does not protectfundamental rights as comprehensively as do constitutional guarantees andconventions on human rights. The decisions of the European Court havedemonstrated on a number of occasions that the law of the United Kingdomdoes not accord to its citizens the fundamental rights recognized by theEuropean Convention on Human Rights and enforced by the EuropeanCourt. The common law is not as invincible a safeguard against violationsof fundamental rights as it was once thought to be.

One advantage of a Bill· of Rights would be that it would ensure thatquestions would be decided by reference to fundamental rights and that thedecision-making would more likely be principled and reasoned than ifundertaken in the political process. i\nother factor, and in the ultimateanalysis it might be influential, is that the enactment of a Bill of Rights,whether constitutionally entrenched or not, is proceeding apace in thecommon law world. Canada has incorporated a Bill of Rights in itsConstitution after finding that a statutory Bill was inadequate. New Zealandis moving towards the adoption of aJ3ill of Rights. Of the major commonlaw countries, only the United Kingdom stands apart. But the United

35 "Judicial Qualities of a different Kind" in Law Institute Journal (Victoria), July 1986, vol60, No 7, 654.

1986] The Role of a Constitutional Court 13

Kingdom as a party to the European Convention on Human Rights is subjectto the obligations that it imposes. If we do not enact a Bill of Rights we willstand outside the mainstream of legal development taking place in othercommon law countries and, for that matter, in many civil law countries thathave adopted a Bill of Rights.

Ijke the first Canadian Bill of Rights, the recently withdrawn Australianproposal did not involve an entrenchment of fundamental rights in theConstitution itself. Nevertheless, one of the Advisory Committees establishedin association with the Constitutional· Commission has as its subject"individual and democratic rights under the Constitution", so conceivablythe Commission could report in favour of constitutional entrenchment ofa Bill of Rights.

3 JUDICIAL INTERPRETATION OF FEDERALISM

The burning issues in Australian constitutional law centre around federal­state relationships and the Court's approach to interpretation of powers. Thecontentious aspects of the Australian federal-state relationship are generallyassociated with provisions in the Australian Constitution that were not derivedfrom the United States model. The Federal Parliament's exclusive power toimpose duties of excise36 and the guarantee of freedom of interstate trade,commerce and intercourse37 are Australian innovations. So too are theFederal Parliament's legislative powers over conciliation and arbitration forthe prevention and settlement of interstate industrial disputes,38 marriag&9and matrimonial causes.4O The same comment cannot be made aboutexternal affairs41 and the jurisdictional problems of federal and state courtswhich continue to excite greater controversy in this country than in the UnitedStates.

The difference is largely explained by the pervasive importance in the UnitedStates of the constitutional guarantees and by the fact that they generate thegreat bulk of constitutional litigation. It is the federal-state aspects of theseguarantees that are the focal point of concern, in particular the role of theSupreme Court and the lower federal courts in striking down state legislationand executive action that violates the constitutional provisions. We have noproblem of corresponding dimensions. At an earlier time when concern wasexpressed in the United States about the expansion of federal legislativepower, that concern related to the commerce clause.42 It was the SupremeCourt's liberal interpretation of the commerce clause that generated the greatexpansion in federal regulatory and participatory activity; The AustralianConstitution is far more generous in its donation of specific powers to theFederal Parliament than is the United States Constitution to Congress.

36 Section 90 of the Constitution.37 Section 92 of the Constitution.38 Section 51 (xxxv) of the Constitution.39 Section 51 (xxi) of the Constitution.40 Section 51(xxii) of the Constitution.41 Section 51 (xxix) of the Constitution.42 US Const art 1, s 8, cl 3.

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A Financial Dependence of the States

The obsessive pre-occupation that lawyers have with questions of legislativepower has tended to divert attention away from a fundamental feature ­some would say a fundamental weakness - of the Australian federation,that is, the financial dependence of the states on the Commonwealth. Thepresent condition of federal financial relationships is in part a product ofthe Constitution itself and in part the result of its interpretation at the handsof the High Court. The Constitution gives the Federal Parliament exclusivepower to impose duties of customs and excise43 and authorizes the grant of"financial assistance to any State on such terms and conditions as theParliament thinks fit".44 And s 105A of the Constitution enabled theCommonwealth to make agreements with the states with respect to their publicdebts and the borrowing of money by the Commonwealth for the states. TheFinancial Agreement, entered into pursuant to that section, has given theCommonwealth a dominating influence in the raising of loan funds. 4s

Judicial interpretation of the excise power has given it an expansive, ratherthan a restricted, scope, so that it embraces all taxes or in respect of a stepin the production, manufacture, sale or distribution of goods.46 By reasonof its exclusive character the excise power has become a formidable obstaclein the way of the states' capacity to raise revenue. The Court's decisions inthe Uniform Tax cases47 have had a similar effect, excluding the states forall practical purposes from imposing income tax. Although the decisions allowthe states to impose such a tax, the reimbursement conceded to them fromthe tax levied by the Commonwealth is enough to induce them not to imposea separate income tax.

On a different but related front the High Court's interpretation of thefinancial assistance power in s 9648 has enabled the Parliament to makegrants to the states that are conditioned and tied to particular purposes,leaving the states with little or no say at all in how the moneys are to bespent. The Commonwealth's financial domination of the federation wasprobably an inevitable development. Deakin predicted it as early as 1902.And it is significant that in the United States where the states traditionallyhave enjoyed a greater degree of financial autonomy, the federal governmentis, as ·Henry Friendly J observed, increasingly using grant conditioning

43 Note 36, supra.44 Section 96 of the Constitution.45 The effect of the Financial Agreement is to require state borrowings to be approved by

the Australian Loan Council, a body over which Commonwealth representatives exerciseconsiderable control. See the Financial Agreements Act 1928 (Cth), as amended.

46 Hematite Petroleum Pty Ltd v Victoria (1983) 151 CLR 599; Gosjord Meats Pty Ltd vNew South Wales (1985) 59 ALJR 221; 57 ALR 417; cfDickenson~Arcade Pty Ltdv Tasmania(1974) 130 CLR 177.

47 South Australia v The Commonwealth ("the First Uniform Tax Case") (1942) 65 CLR 373;Victoria v The Commonwealth ("the Second Uniform Tax Case") (1957) 99 CLR 575.

48 South Australia v The Commonwealth, ibid; At,torney-General For Victoria ex rei Blackv The Commonwealth (1981) 146 CLR 559.

1986] The Role of a Constitutional Court 15

schemes "to bring the states into line with national thinking under penaltyof losing the largesse from the federal fisc. "49

B Federal Legislative Power

The federal government's dominant influence in financial and economicaffairs has been accompanied by an" expansion in the exercise of federallegislative powers. Judicial interpretation has accorded a content to federallegislative powers that almost certainly was not foreseen by the framers ofthe Constitution. Reviewing the history of the Australian federation in 1943,Sir Owen Dixon spoke of "a continual decline in the authority of the Statesand a growth in the predominance of federal power". 50 Since then the trendhas continued in much the same way as in the United States. Few aspectsof our affairs now remain untouched by federal law, federal funding or federalprogrammes. The long course of judicial exposition of the AustralianConstitution, as with the United States Constitution, has sanctioned a steadyexpansion in the exercise of federal powers at the expense of the authorityof the states.

Federal control of, and influence over, Australian affairs is as complete asthat achieved by the United States government. Twenty years ago things mighthave been different. In his general activities the Australian ·citizen was lessaffected by federal than by state law. But the vast intrusion of the federalgovernment into fields of health, education and social welfare programmes,and family law, as well as federal regulation of corporate trade practices,including consumer protection, has taken the federal governments into newfields previously regulated by the states.

(1) Federal Power Over Interstate Trade and Commerce

In the United States the expansion in the authority of the federalgovernment has been achieved by means of a broad interpretation by theSupreme Court of the commerce clause. This broad interpretation, whichpresents a striking contrast with the much narrower interpretation of theAustralian trade and commerce power, has been a virtue borne of necessity,due to the fact that Congress possesses relatively few enumerated powers.Unlike Congress, the Federal Parliament has other powers that have a directimpact on trade and commerce, powers with respect to banking, insurance,industrial property, foreign corporations and trading or financialcorporations, and the prevention and settlement by conciliation andarbitration of interstate industrial disputes. Recent interpretations of thecorporations power have enabledthe federal government to regulate corporatetrading activities, intrastate as well as interstate, and there are indications

49 Friendly, "Federalism: A Forward" 86 Yale LJ 1019, at 1025 (1977). As early as 1937 theSupreme Court permitted a conditioning programme in Steward Machine Co v Davis, 307 US548 (1937) (upholding a federal government tax remission scheme under the Social Security Actof 1937).

50 "Aspects of Australian Federalism" in Owen Dixon, Jesting Pilate, 122.

16 Federal Law Review [VOLUME 16

that the power may also authorize regulation of corporate non-tradingactivities. 51

Seen from the western shores of the Pacific Ocean, the commerce clauseappears to confer power on Congress to control the entire economy of theUnited States. The Supreme Court defers to the legislative judgment thatthe regulated activities have the requisite economic effect on interstatecommerce, so long as there is: (1) a "rational basis" for that legislativejudgment;52 and (2) and means selected are reasonable and appropriate. 53Thus Congress can regulate the hours of work at a plant manufacturing goodsexpected to move in interstate commerce, notwithstanding that they mightnot all enter that commerce.54 It can also regulate the production by afarmer of crops for home consumption because the effect of homeconsumption on demand for and supply of crop, when aggregated with thatof others similarly situated, exerts a cumulative economic effect on interstatecommerce. 55 In Australia, the concept of interstate trade covers movementand communications across state borders and contracts calling for interstatedelivery down to the first sale by an importer in another state.56 However,although the High Court has held that regulation of production for exportfalls within the power, the Court has not yet extended that power toproduction generally. 57

The interpretation of the Australian power is complicated by the presencein s· 92 of the Constitution of an apparently inconsistent guarantee of thefreedom of interstate trade. The guarantee has contributed to a restrictedview of what constitutes interstate trade. Because the Court has read it asamounting to something more than an injunction that interstate trade shallbe free from discrimination, the Court has had a natural reluctance to enlargethe scope of the power lest that should result in enlargement of the immunity.Apart from this complicating factor, the distinctive feature of the Court'sapproach is that, instead of regarding interstate trade as a practicalconception, it has treated the subject as an abstract conception with a pre­determined content, capable on analysis, of separation into essential andincidental attributes.

The formal classification dividing manufacture and production from tradeand commerce has been adopted by the Supreme Court of the United Statesbefore 1937. But the formal classification has been accompanied in Australia

51 Commonwealth v Tasmania (the Franklin Dam case) (1983) 46 ALR 625, at 496, 509; 57ALJR 450, at 710, 737.

51 Heart of Atlanta Motel v United States 379 US 241, at 258-259 (1964).53 United States v Wrightwood Dairy Co 315 US 110, at 119 (1942).54 National Labor Relations Board v Jones & Laughlin Steel Corp. 301 US 1, at 41 (1937).55 Wickard v·Filburn 317 US 111, at 127-128 (1942).

'56 Hospital Provident Fund Pty Ltd v Victoria (1953) 87 CLR 1; North Eastern Dairy CoLtd v Dairy Industry Authority ofNSW(1975) 134 CLR 559; Australian Coarse Grains PoolPty Ltd v Barley Marketing Board (1985) 59 ALJR 516; 59 ALR 641.

57 Granna// v Marrickvi//e Margarine Pty Ltd (1955) 93 CLR 55; Beal v MarrickvilleMargarine Pty Ltd (1966) 114 CLR 283; but it has been acknowledged that the power mightextend to production - Grannall, at 77-78; contrast Wragg v New South Wales (1953) 88 CLR353, at 385-386. In O'Su//ivan v Noarlunga Meat Ltd (1954) 92 CLR 565, at 598 regulationscontrolling production for export were upheld.

1986] The Role of a Constitutional Court 17

by a refusal to recognize that the economic effect of an activity on interstatetrade brings that activity within the reach of the legislative power, a viewdifficult to accept. 58 The Supreme Court of the United States rejected thisview in 1914,59 long before it embraced an expanded view of the commerceclause. An illustration of the High Court's refusal to recognize economic effectas a sufficient connecting link with the subject matter of the power is· theWestern Australian Airlines· case.60 There the Court held that a law allowinga federal airline authority to operate an air service between a place in a stateand a place in a territory, with an intermediate stop in that same state duringwhich passengers and goods would be taken on and discharged, was a validexercise of the federal territories power.61 However, the same law could notbe upheld under the interstate trade power, notwithstanding that the trafficto and from the intermediate stop was relevant to the economic viability ofthe airline service between the terminal points. This conclusion rests on thecontroversial distinction between interstate and intrastate trade.

We have avoided the practical limitations that would otherwise follow fromour restricted interpretation of the trade and commerce power by giving abroad interpretation to the corporations power, acknowledging its applicationto such activities of a trading corporation as are undertaken for tradingpurposes. The consequence is that, subject to the problem created by theguarantee of freedom of interstate trade, we have upheld federal regulationin areas covered by the United States commerce clause, without abandoningcompletely a more formal approach to the interpretation of federal powers.

(2) Implied Probibitions

The pervasive reach of the commerce power in the United States and thecumulative effects of the specific grants of federal power in Australia havere-awakened interest in the implied prohibitions in the two constitutions.Lawyers, thwarted in their endeavours to narrow the interpretation of federalpowers, have turned to the prohibitions as a possible means of protectingstate interests from the encroachment of federal regulation. In the earlieryears of the Australian federation the High Court embraced the doctrine ofinter-governmental immunities. The doctrine began with the principle,expounded by Chief Justice Marshall much earlier in the United States,62that no state could give its legislature or executive authority an operationthat would fetter, control or interfere with the free exercise of the legislativeor executive power of the federal government.63 The court then extended theprinciple to give it a mutual operation so as to protect a state governmentfrom being affected by federal legislation. The High Court held that

58 Attorney-Generai'rWA) v Australian National Airlines Com":'ission (1976) 138CiR49~-at 523.

59 Houston, East and West Railway v United States 234 US 342, at 351 (1914).60 Supra n 58.61 Section 122 of the Constitution.62 McCulloch v Maryland 17 US (4 Wheat) 316 (1819).63 D'Emden v Pedder (1904) 1 CLR 91; Deakin v Webb (1904) 1 CLR 585, which was

overruled by the Privy Council (Webb v Outtrim (1906) 4 CLR 356).

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Parliament could not authorize the federal Arbitration Court to determinean interstate industrial dispute involving the wages to be paid by the Statesto their railway employees.64

In 1920 the Court ruled in the Engineers' case65 that, as a matter ofconstitutional interpretation, the doctrine of intergovernmental immunitiescould not be sustained in the form in which it had been enunciated and thatno justification existed for implying a broad prohibition against the enactmentof federal laws whose operation affected the states. The judgment in theEngineers' case has been justly criticized because of obscurities in its reasoningand that the Court failed to make clear how far it intended to go in proscribingresort to implications.66 However, as Sir Owen Dixon has said, "Thesubstance of the decision has hardly been impugned",67 no doubt for thevery good reason that the rejected doctrine was altogether too extreme inthe restriction it placed on federal power, the restriction being one that isnot applied to the powers of Congress by the Supreme Court.

Since the Engineers' case we have recognized, as the Supreme Court hasdone on some occasions, that there is necessarily to be derived from the federalnature of the Constitution, a narrower implication that the legislature willnot discriminate against the states or their agencies or impair their capacityto function as governments. But, so far the 'implied prohibitions in Australia,as in America, have proved a fragile safeguard for state interests. Instancesof discrimination are few and far between - we have invalidated federallaws on this ground twice in the past forty years. 68 And impairment of thestates' capacity to function as governments is such an abstract notion thatit has so far proved incapable of useful definition. It may do no more thanprotect the states against reduction to a position of insignificance in thefederation, an eventuality that is unlikely to happen.

The inability of the courts to protect the states from continuing federalencroachment has been graphically illustrated by two recent decisions, theFranklin Dam case69 in Australia and Garcia70 in the United States. Thenarrow majority of one in each case reveals a fundamental difference aboutconstitutional interpretation and the role of the courts in resolving federal­state disputes, a matter explicitly discussed by the majority in Garcia.

In the Franklin Dam case the principal question was whether the federalexternal affairs power71 and the corporations power - in its application totrading corporations - supported federal laws protecting a large wildernessarea in Tasmania and prohibiting the construction of a dam within the areaby a statutory corporation of the state whose function it was to generate and

64 Federated Amalgamated Government Railway & Tramway Service Association v NSWRailway Traffic Employees' Association (the Railway Servants case) (1'906) 4 CLR 488.

65 Amalgamated Society of Engineers v Adelaide Steamship Co Ltd (1920) 28 CLR 129.66 Sir Owen .Dixon, "Aspects of Australian Federalism" in Jesting Pilate, pp. 116-117; L

Zines, The High Court and The Constitution, 9-11. ~

67 Sir Owen Dixon, Note 66, supra, at 117.68 Melbourne Corporation v The Commonwealth (the State Banking case) (1947) 74 CLR

31; Queensland Electricity Commission v The Commonwealth (1985) 59 ALJR 699; 61 ALR 1.69 Supra n 51.70 Garcia v San Antonio Metropolitan Transit Authority 83 LEd 2d 1016 (1985).71 Supra n 41.

1986] The Role of a Constitutional Court 19

distribute electric power. The external affairs power enables Parliament toimplement by law international obligations undertaken by Australia. Notreaty to which Australia is a party becomes part of our domestic law unlesslegislation brings this about. The area had been entered on the World HeritageRegister kept· pursuant to the Convention for the Protection of the WorldCultural and Natural Heritage to which Australia was a party. "TheConvention imposed obligations on a party to protect the world heritage inits territory. The dam, which was to provide electricity at low cost, wouldhave flooded the wilderness area. The primary argument, based on thesupposed need to preserve the federal balance, was that the power was limitedto a convention whose subject matter is of international, rather than domestic,concern. Otherwise, it was suggested, Australia's adherence to a broad rangeof international conventions would support such an accretion of federal powerthat the states would be left without substantial legislative powers. Notsurprisingly, the Court rejected this view. In so doing, it applied the basicreasoning that lay behind the 1936 decision upholding legislationimplementing the Paris Convention of 1919 on international airnavigation. 72 Significantly, the acknowledgment by the Supreme Court in1920 in Missouri v Holland,73 that Congress had a like power, does notappear to have had a disastrous impact on the legislative powers of theAmerican states. The High Court also held that the corporations powerauthorized the law prohibiting a trading corporation from constructing a damfor the purposes of its trading activities. The Court rejected a secondaryargument that the legislation breached the implied prohibitions because itsterilized a large area of the state's territory.

In Garcia the Supreme Court decided that a federal law fixing minimumrates and overtime requirements for employees in public employment validlyapplied to an urban transport authority, notwithstanding National Leagueof Cities v Usery 74 which had earlier decided that such a law could not alterthe states' abilities to structure employer/ employee relationships in theprovision of the traditional services of government. The Court explicitlyrecognized the impossibility of maintaining a distinction betweengovernmental services that are traditional, and those that are not. In Australiawe have repeatedly rejected this distinction, no doubt because from the earlydays of the Australian colonies services ordinarily provided by privateenterprise have been provided by government. 75

Central to both decisions is the proposition that because the Constitutioncontemplates that the regulation of an activity in the exercise of a federalpower will necessarily result in an interference in the capacity.of the statesto regulate the activity, that interference is not a legitimate ground for placingany limitation on the power. Loss of state legislative capacity to regulate areasof activity f~lling within the reach of paramount federal powers is an element

72 Rv Burgess; ex parte Henry (1936) 55 CLR 608.73 252 US 416 (1920)74 426 US 833 (1976).75 Supra n 64, Queensland Electricity Commission v The Commonwealth (1985) 59 ALJR

699, at 708; 61 ALR 1, at 17.

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in the federal balance for which the Constitution itself provides when, bys 109, it gives federal laws paramountcy over state laws. Accordingly, thefact that the states effectively sustain loss of legislative power is not a matterthat can bring the implied prohibitions into play. If they have a part to play,it is confined to legislation that discriminates or affects the capacity of thestates to function as governments. So, in the Franklin Dam case the possibilitythat the states' power to regulate particular areas of activity mightprogressively diminish as the federal government ratifies internationalconventions and implements them by legislation, was no reason for limitingfederal power. Although.in Garcia the impact of federal regulation on theconditions of employment and employees in the state system provided asomewhat stronger foundation, based on National League of eities, forinvoking the federal balance and the implied prohibitions, it was not enough.

Garcia is a striking demonstration of the fragility of the impliedprohibitions as a safeguard for state interests. A state's capacity to determinethe terms and conditions of its relationship with its employees is an importantelement in state autonomy. Federal regulation of that relationship necessarilyaffects state functions and the services the state provides. Disputes over federalregulation of the relationship between the states and their employees havebeen at the heart of federal conflicts in Australia. With us the conflict hasrepeatedly arisen in connexion with the jurisdiction of the federal ArbitrationCommission, established under the conciliation and arbitration power, tosettle interstate industrial disputes. At a time when we held that thejurisdiction was more narrowly confined to disputes that were industrial inthe traditional sense, we recognized that the Commission could determinethe terms and conditions of employment of state employees whose occupationwas industrial. 76 Now that we have decided that the Commission'sjurisdiction extends more widely to industrial disputes as popularlyunderstood,77 the ultimate issue for us is whether the Commission candetermine the terms and conditions of state employees who provide non­industrial administrative services - an issue closely resembling that in Garcia.This question might be answered in the affirmative.78 The justification forthis answer, if it be given, is that once it is accepted, as it has been sincethe Engineers' case, that the arbitration power enables the Commission tosettle interstate industrial disputes involving state employees, there is nowno basis for drawing a distinction between employees engaged in industryand those engaged in the administrative services of a state.

An ideal solution would look to a balancing of the respective federal andstate interests within a framework of constitutional principle. As O'ConnorJ acknowledged in Garcia, this brings us back to the problem of.crafting"bright lines defining the scope of state autonomy". 79 But the uncertaintiescreated by Usery and the discussion in the Franklin Dam case and Garciaillustrate the difficulty, indeed the impossibility, of transforming general

76 R v Commonwealth Court ofConciliation & Arbitration; ex parte Professional Engineers'Association (1959) 107 CLR 208.

77 R v Coldham; ex parte Australian Social Welfare Union (1983) 153 CLR 297.78 ex parte Harper (1986) 60 ALJR 441; ALR.79 Supra n 70 at 1058.

1986] The Role of a Constitutional Court 21

notions of the federal balance and the desire of the founders to preserve thestates as strong constituent elements in the federation into a precise andpractical limitation on federal power.

The Supreme Court in Garcia sought to support its interpretation byreference to the writings of the framers to the effect that state interests wouldbe protected by the structure of the federal.system. The Court then explainedthat procedures inherent in the system protect state interests. Blackmun J,delivering the opinion of the Court, asserted "State sovereign interests thenare more appropriately protected by procedural safeguards inherent in thestructure of the federal system than by judicially created limits on federalpower".80 Just how effective those safeguards are in the United States todayI do not know.

So far there has been no similar expression of confidence in the existenceof similar safeguards in Australia. The Senate, initially conceived as a states­house, has not fulfilled that role. The federal government, rather than thestates, is responsible for determining the electorates and the electoralqualifications for voting in the House of Representatives, as well as the modeof choosing senators. The tighter discipline and the centralized control ofthe Anglo-Australian party system work against effective representation ofstate and local interests. Moreover, the people in remoter regions, antagonisticto central government, tend to identify strongly with their state as a politicalunit in a way that may have no parallel in the United States. r

True, there are indications that the federal government is becoming moreresponsive to state interests. From time to time it defers to states' rightssentiments by pursuing policies labelled as "cooperative federalism" and byrefraining from taking planned action on account of state interests or stateopposition. And the Australian government participates to an even greaterdegree than the United States government in the funding of state activities.However, these matters are generally not regarded as evidence that the federalsystem presently provides significant protection for state interests. In Australiathe provision of federal finance for state activities is viewed by many as stiflingstate initiative. As discussed above, very often the price of accepting federalfinance is implementation of federal policy decisions. These decisions arefrequently formulated without due regard to local interests. In this way federalfinance supports national action at the expense of local autonomy andinitiative.

Even if there is a case for saying that the founders considered that theprocedures in the federal system would provide adequate protection for thestates, the High Court continues to be regarded as the arbiter of federal­state disputes. Governments, federal and state, as well as the community,regard the Court as having a responsibility for determining whether theParliament and the federal government are exceeding the powers entrustedto them by' the Constitution. It may be politically advantageous togovernments to leave these disputes to the Court on the footing that the Courtbears the responsibility for the outcome. Lack of power to deal with atroublesome problem is often a convenient political answer.

80 Supra n 70 at 1034.

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4 CLAIM THAT JUDICIAL INTERPRETATION HASRADICALLY ALTERED THE FEDERAL BALANCEESTABLISHED BY THE CONSTITUTION

Liberal interpretation has led to the criticism in both the United Statesand Australia that the courts in interpreting the Constitution have beenunfaithful to its words and to the original intent of those who framed it.In late 1985 the Reagan Administration strongly criticized the SupremeCourt's interpretations of the Bill of Rights on this very ground. Thisgenerated a public controversy in which Willim Brennan J, noted for hisliberal interpretation of the United States Constitution, defended the Court'sdecisions and the principles of interpretation it had applied. 81

The critics assert with some force that neither the great expansion in theexercise of federal powers, nor the erosion in the position of the states, wasforeseen by the authors of the Australian Constitution. They contemplatedthe continued existence of the states as important constituent elements in thefederation. Weare reminded that the Australian Constitution provides foramendment, not by judicial interpretation, but by a procedure that requiresapproval at a referendum by an overall majority of voters and a majorityof voters in a majority of states. 82 The sting in the reminder is that theelectorate has been notoriously unsympathetic to the expansion of federalpowers, approving only two out of twenty-five such proposals placed beforethe people. 83 All this leads to the charge of infidelity - that we haveradically altered the federal balance said to be established by the Constitution.According to the critics, the process of constitutional interpretation has,almost imperceptibly, as if by stealth, brought about a fundamentalamendment of the federal~state relationship.

The exponents of this viewpoint fail to mention that the desire of thefounders to preserve the states as strong constituent elements in the federationwas accompanied by a paramount purpose of entrusting to the federalgovernment all the powers necessary to conduct the affairs of a nation onmatters -outside the competence of the individual states. They fail toacknowledge that the Constitution contemplates a flexible balance of powersand that it does not expressly preserve the position and powers of the statesfree from federal interference. They tend to assume, quite wrongly, that theConstitution preserves in some way or other the actual balance of powers,or the actual federal-state relationship as it existed at some undefined timeshortly after the Constitution came into operation. And they overlook thefact that the process of amendment is so exceptional, so cumbersome andso inconvenient that governments cannot set it in motion regularly to ensurethat the Constitution is continuously updated.

-_._---------------------------------------_._--

81 William J Brennan, Jr, "The Constitution of the United States: ContemporaryRatification" Vol 43 Lawyers Guild Practitioner 1.

82 Section 128 of the Constitution.83 These were the Social Services Referendum, enacted by the Constitutional Alteration

(Social Services) Act 1946 (Cth) and the Aboriginals Referendum, enacted by the ConstitutionalAlteration (Aboriginals) Act 1967 (Cth).

1986] The Role of a Constitutional Court 23

The problem is that the words of the Constitution have to be applied toconditions and circumstances that could not have been foreseen by its authors.It follows that exploration of the meaning of the language of the Constitutionat the time of its adoption and of the intentions of the authors have a limitedvalue in resolving current issues. Accordingly, there is a natural tendencyto read the Constitution in the light of the conditions, circumstances andvalues of our own time, instead of freezing its provisions within the restrictedhorizons of a bygone era. Viewed in this way, the Constitution is not so mucha detailed blueprint as a set of principles designed as a broad frameworkfor national government. 84

A Dynamic Rule of Constitutional Interpretation

For these reasons the primary and dynamic rule of constitutionalinterpretation, both in Australia and the United States, is the principle that,as the Constitution is expressed in broad terms and intended to apply inchanging conditions as the community develops, it should be construedliberally unless something indicates that a narrower interpretation would bestcarry out its purpose. 85 To use the words of Sir Owen Dixon, "it is aConstitution we are interpreting, an instrument of government meant toendure and conferring powers expressed in general propositions wide enoughto be capable of flexible application to changing circumstances."86Alexander Hamilton expressed this notion clearly nearly two-hundred yearsago when he explained

that the powers contained in a constitution of government ... ought to beconstrued liberally in advancement of the public good. This rule does not dependon the particular form of government, or on the particular demarcation of theboundaries of its powers, but on the nature and objects of government itself.The means by which national exigencies are to be provided for, nationalinconveniences obviated, and national prosperity promoted, are of such infinitevariety, extent, and complexity, that there must of necessity be great latitudeof discretion in the selection and application of those means. 87

For the states the difficulty with the proposition is that the complexity ofmodern life, the integration of commerce, technological advance, the riseof the welfare society, even the intrusive and expanding reach of internationalaffairs into domestic affairs, require increasing action· on the part of thenational government, so that it seldom appears that a narrow interpretationwould best give effect to the objects of the Constitution.

84 Supra n 81 at 4-8; Weems v United States 217 US 349, at 373 (1910).85 Jumbunna 'Coal Mine, No Liability v Victoria Coal Miners' Association (1908) 6 CLR 309,

at 367-368; ex parte Australian Social Welfare Union, Note 77, supra, at 314.86 Australian National Airways Pty Ltd v The Commonwealth (1945) 71 CLR 29, at 81; The

Queen v Public Vehicles Licensing Appeal Tribunal (Tas); ex parte Australian National AirwaysPty Ltd (1964) 113 CLR 207, at 225-226. The statement of Sir Owen Dixon recalls the famouscomment of Chief Justice Marshall in McCulloch v Maryland, supra n 62 at 406 ("we mustnever forget that it is a constitution we are expounding") (emphasis original).

87 The Works of Alexander Hamilton 3:455 (H Lodge, ed, 1904).

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1 Formal Rules of Statutory Construction

The fact that the Australian Constitution is a statute of the ImperialParliament led to a tendency to interpret federal powers narrowly. Althoughsome allowance was made for the character of the statute as a constitution,it was subjected to the ordinary rules of statutory interpretation applied byEnglish courts. 88 This was not surprising. After all the Privy Council wasfor so long the ultimate court of appeal from Australian courts, the HighCourt included, except on constitutional questions inter see The point hasbeen forcefully made that, whereas the United States Constitution, havingbeen adopted by the people at state conventions, reflects ·the sovereign willof the American people, the Australian Constitution derives its authority fromthe sovereignty of the Imperial Parliament and the supremacy of itsstatutes.89 That Parliament, even after federation, continued to possess, andto exercise, a competence to legislate for Australia.90 It has therefore beensuggested that the American. theory that all power comes from the peoplehas no part to play in the construction of the Australian Constitution.91

The Commonwealth ofAustralia Constitution Act 1900, subject to a minorqualification, enacts the form of Constitution drafted by the delegates of theAustralian colonies at a series of constitutional conventions and acceptedby the people at national referenda in 1898 and 1899. The first recital in theprealnble to the statute records that ,"the people" of the states "have agreedto unite in one indissoluble Federal Commonwealth" under the Crown "andunder the Constitution hereby established". The Constitution is as much areflection of the will of the people as the United States Constitution ·and itshould be interpreted accordingly.

What is more, the legislation that terminated Australia's residualconstitutional links with the United Kingdom, to which I referred earlier,now provides a firmer foundation for the view that the status of theConstitution as a fundamental law springs from the authority of theAustralian people. Section 1 of the Australia Act 1986 (Cth) provides thatno Act of the United Kingdom shall extend, or be deemed to extend, toAustralia, to a state or territory. The Australia Act was enacted in pursuanceof s 51 (xxxviii) of the Constitution which enables the Parliament to makelaws with respect to the exercise within the Commonwealth, at the requestof the Parliaments of all the states directly concerned, of any power thatcould at the establishment of the Constitution be exercised only by the United

88 Deakin v Webb (1904) 1 CLR 585, at 630; Sir John Latham, "Interpretation of theConstitution" in R. Else-Mitchell (ed), Essays on the Australian Constitution (2nd ed, 1961),1, 5, 8. See the exposition by Windeyer J in Victoria v The Commonwealth (the Payroll Taxcase) (1971) 122 CLR 353, at 394-395.

89 Sir Owen Dixon, "The Law and the Constitution" (1935) 51 Law Quarterly Review 590,at 597. See also Note 87, supra, and China Ocean Shipping Co v Soutli Australia (1979) 145CLR 172, at 209-214 where Stephen J refuted the untenable view previously expressed by MurphyJ in Bistricic v Rokov (1976) 135 CLR 552, at 556, reiterated in China Ocean Shipping, at 236,that the Constitution derived its legally binding force from the sovereignty of the Australianpeople..- . 90--Supra n 88.

91 A-G for the Commonwealth ex rei McKinlay v The Commonwealth, supra n 19 at 17, perBarwick CJ.

1986] The Role of a Constitutional Court 25

Kingdom Parliament. The Australia Act 1985 (UK) may be seen as confirmingthe effect of the Australian legislation.92

An important feature of the Australian federation is that, unlike theAmerican states which were notionally considered to be sovereign states whenthe United States Constitution was adopted,93 the Australian states are not,and never have been, sovereign states. The Australian' colonies, which werenot sovereign, were transformed into states by the Constitution. The stateshave been described from time to time as parties tothe federal compact, butthis means no more than that they are constituent elements in the federationthat the Constitution brought into existence.

All this makes it somewhat surprising that we have in the past given suchemphasis, to the ordinary rules of statutory interpretation. The significanceof this approach, so foreign to the spirit of the dynamic principle ofconstitutional interpretation, is best illustrated by reference to rules of Englishstatu~ory interpretation which have been applied to our Constitution.

(2) Extrinsic Materials

The traditional English approach is to ascertain the meaning of the wordsused in the statute with little resort to extrinsic materials. Resort toparliamentary debates for the purpose of throwing light on what the statutemeans was not permitted. The severity of this approach has recently beenrelaxed as a result ofa change in judicial attitude and as a result of legislationwhich now enables the courts to take into account the parliamentary historyof legislation as an aid to statutory interpretation,94 an approach that hasbeen pursued in America for a long time.

As recently as 1975, however, two Justices of the High Court, applyingthe rule that forbade recourse to extrinsic materials and parliamentarydebates, disclaimed use of the debates in the Australian ConstitutionalConventions as an aid to the interpretation of the Constitution.95 Contrastthe position in the United States where the Supreme Court constantly refersto extrinsic historical materials, including the writings of the framers andthe proceedings of conventions. The objection usually made to the use ofthe Convention debates is that we have no means of knowing whether the

92 For an illuminating discussion of the matters referred to in this paragraph see GJ Lindell,"Why is Australia's Constitution Binding? - The Reasons in 1900 and Now, and the Effectof Independence", published in this issue p 29. See also University of Wollongong v Metwally(1985) 59 ALJR 48, at 59; Kirmani v Captain Cook Cruises Pty Ltd (1985) 59 ALJR 265, at302-303.

93 Sutherland J observed in United States v Curtiss- Wright Corp, 299 US 304, at 317 (1936),"When ... the external sovereignty of Great Britain in respect of the colonies ceased, itimmediately passed to the Union." Thus, the individual American states were never independentlysovereign. As Patterson J emphatically explained as early as 1795, "The truth is, that the states,individually, were not known nor recognized as sovereign, by foreign nations, nor are they now."Penhallo~ v Roane, 3 US (3 DaH) 53, at 80 (1975).

94 Wacando v The Commonwealth (1981) 148 CLR 1, at 25-26; Acts Interpretation Act 1901(Cth), s 15AB.

95 A-G (Cth) ex rei McKinlay v The Commonwealth Note 19, supra, at 17, 47; and seeMunicipal Council of Sydney v The Commonwealth (1904) 1 CLR 208, at 213-214; but cfSeamen's Union of Australia v Utah Development Co (1978) 144 CL~ 120, at 143-144.

26 Federal Law Review [VOLU~1E 16

remarks of a particular speaker commanded assent of the majority. Theobjection is not universally true and, even if it were true, it is a very slenderreason for refusing to take account of the comments of the founders in thecourse of their deliberations on drafts of the Constitution.

One speaker may provide an unexpected insight or explain why a particulardraft was not accepted. What is more the debates are a primary source ofmaterial for commentaries by experts which the Court does not hesitate touse as an aid to interpretation. These factors, along with an increasing usethat we are now making of extrinsic materials in the construction of statutes,are likely to stimulate reference to the Convention debates. Even so, I doubtthat our use of them will be extensive, judging by American standards. Alltoo often the material is inconclusive. And there is the beguiling temptationof using it selectively rather than consistently. Finally we must guard againstany excessive tendency to confine the operation of a constitutional provisionto that area of operation that was the subject of debate by the delegates.

(3) Meaning of Terms in 1900

Another rule that has been applied is that the meaning to be given to aterm is that which it had at the date of its enactment in 1900.96 The Courthas endeavoured to escape from the iron-clad embrace of this rule byinterpreting a term in the Constitution so that it applies to a new conceptor exemplication, developed after 1900, but essentially related to the termmentioned in the Constitution.97 By adopting a similar approach the Courtdecidedthat radio broadcasting fell within Parliament's power to make lawswith respect to "postal, telegraphic, telephonic and other like services".98The majority concluded that broadcasting was a "like service" because it,in common with the other services mentioned, was a communications serviceor because they involved similar means of communication.

This approach has been defended on the ground that "Law is to beaccommodated to changing facts. It is not to be changed as languagechanges".99 Although this statement reflects the guiding spirit lying at theheart of the dynamic rule of constitutional interpretation, the distinctionremains an elusive one. Accordingly, a leading constitutional lawyer,Professor Zines, has suggested that where there is room for difference ofopinion, the advantage or otherwise of the matter being under federal controlought to be the deciding factor". 100

96 R v Barger (1908) 1 CLR 41, at 68; King v Jones (1972) 128 CLR 221, at 229; Bonser vLa Moccia (1969) 122 CLR 177.

97 A-G (NSW) v Brewery Employees' Union of NSW (1908) 6 CLR 469, at 508; R vCommonwealth Conciliation & Arbitration Commission; ex parte Professional Engineers'Association ofAustralia (1959) 107 CLR 208, at 267; Lansell v Lensell (1964) 110 CLR 353,at 366. This approach has been justified on some occasions by drawing a distinction, not acceptableto philosophers, between connotation and denotation - R v Federal Court of A ustralia; exparte WA Football League (1979) 143 CLR 190, at 233-234.

98 R v Brislan; ex parte Williams (1935) 54 CLR 262.99 ex parte Professional Engineers' Association, Note 76, supra, at 267.100 L Zines, The High Court and the Constitution, 17; and see Jones v The Commonwealth

(No 2) (1965) 112 CLR 206, at 237.

1986] The Role of a Constitutional Court 27

(4) Former Analytical Approach

Other technical rules of interpretation, applicable to statutes and writteninstruments~ have been applied to the Constitution. It would be tedious toenumerate them. They all have a part to play, however minor, in elucidatingthe meaning of written instruments. But it may well be correct to say thatthe emphasis given to them and to the importance of an analytical approachto the inter-relationship of the provisions in the Constitution, along with theCourt's traditional disinclination to engage in overt examination of policyissues, has encouraged the belief that Australian constitutional interpretationhas been unduly legalistic.

One example of the way in which the analytical approach has beenemployed to contract federal legislative power is the statement made by noless an authority than Sir Owen Dixon of the need to preserve the distinctionbetween interstate and intrastate trade, even in determining what is incidentalto interstate trade. 101 By s 51(i) the Constitution gives the Parliament powerto make laws with respect to interstate and overseas trade and commerce.The Constitution gives no such power with respect to intrastate trade. Butthis does not mean that the Constitution must be read as if it contained aprohibition against federal legislation affecting intrastate trade. The correctpositionis that the Parliament may in the exercise of any of its powers affectintrastate trade so long as the relevant law falls within one of the powerscommitted to Parliament. The suggested distinction cannot be sustained.

Another illustration is the attempt sometimes made to induce the Courtto restrict the area of operation of a federal legislative power on the groundthat if it were not restricted, another power would become redundant. Thus,it was argued that the marriage power does not authorize the creation ofa jurisdiction in custody proceedings between the parties to a marriage thatdoes not fall within the power over divorce and matrimonial causes. Theargument was rejected by a majority of the Court, though it attracted twodissentients. 102 The suggested basis for restricting the scope of power mightbe appropriate to the constitution of a corporation formed to carryon thebusiness of a candlestick maker. It seems singularly inappropriate to thecircumstances of a constitution intended to operate as an instrument ofnational government.

5 CONCLUSION

The decline in the authority of the states has continued in. much the sameway in Australia and the United States, despite the difference in techniquesof interpretation adopted by the High Court and the Supreme Court. TheAmerican experience suggests that the adoption of a more policy orientedapproach to interpretation is unlikely to arrest this decline. However, thatapproach has been accompanied by a deference on the part of the SupremeCourt to legislative judgment on questions of federal power. It might be

101 R v Burgess, Note 72, supra, at 671-672; Wragg v New South Wales (1953) 88 CLR 353,at 385-386.

102 Russell v Russell (1976) 134 CLR 495, at 511-512, 525-527. The argument was againrejected in R v Lambert; ex parte Plummer (1980) 147 CLR 447, at 462,465, where Russellv Russell was affirmed.

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possible to adopt a more policy oriented approach to constitutionalinterpretation without deferring to legislative judgment to the same extent,notwithstanding the difficulties inherent in taking such a course. Whetherthis outcome would prove beneficial for the states is yet another question.

Because policy oriented interpretation exposes underlying values for debateit would enhance the open character of the judicial decision-making processand promote legal reasoning that is more comprehensible and persuasive tosociety as a whole. This development would lead to a better understandingof constitutional judgments and, no doubt, to a greater capacity andwillingness to criticize them. But criticism is a small price to pay if theapproach is one that contributes, as it seems to have done in the United States,to a stronger sense of constitutional awareness on the part of the communityand a more accurate appreciation of the issues arising·for decision. In thisrespect it might be that this is the principal advantage offered by the adoptionof a Bill of Rights - a sharper community awareness of the critical issuesthat aris~ for consideration when a court finds that a law enacted byParliament infringes a fundamental right protected by the Constitution ora Bill of Rights.

The movement away from formal, legalistic interpretation, if it continues,should reinforce our determination as judges to provide objective andprincipled elaboration in support of our decisions. By objective and principledelaboration I mean reasons that deal fairly and impartially with the competingconsiderations, resting wherever possible on a principle of appropriategenerality, even though the full reach of the principle must be left for laterexamination.

The practical difficulties in the way of achieving this ideal are frequentlyunderestimated. Some say that we should follow the practice of the SupremeCourt of the United States in producing a single majority and a single minorityjudgment, when we cannot produce a unanimous judgment. Although Iwould not wish to support a rigid practice, the High Court is moving awayfrom the Anglo-Australian tradition of delivering individual judgments. Theproportion of judgments of the Court and joint judgments is much higherthan it used to be. There is scope for improvement, to use a non-neutral term.But in. some cases we reach a point where the principles of the individualcannot be sacrificed to expedient compromise. The weakness of the singlejudgment or two judgment system is that the element of compromise bluntsthe points of principle, a defect that will be apparent to those lawyers whohave compared the collective decisions of the Privy Council with the individualspeeches in the House of Lords. Significantly, the Supreme Court of theUnited States no longer rigidly adheres to the practice of delivering onemajority and one minority opinion.

May I finally say that as judges we should frankly acknowledge when adecision is finely balanced, instead of writing a judgment as if it were simplyan exercise in the art of advocacy. We will' thereby enhance the integrity ofthe judicial process. We may then persuade the rational and intelligent readerthat the Court's decision stems from a reasoned and balanced considerationof relevant factors, even if its correctness continues to be the subject ofcontinuing debate.