Topic 7: Navigating with Engineers

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Topic 7Navigating with Engineers
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Amalgamated Society of Engineers v Adelaide
Steamship Co Ltd (1920) 28 CLR 129

• What is the relevance of Engineers today?

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Headings in the Course Outline

• 7.1 The Engineers case
• Refers to the Casebook notes and extract
• Slides 5-17 below, dealing with the joint
  judgment, track the key points in the order set
  out in the reasoning
• 7.2 Evaluating Engineers
• Refers to the views of RTE Latham and Windeyer J
  see slides 18-19 below

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(No Transcript)
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1. Facts and introduction

• The application of Commonwealth industrial law to
  the States.
• Adelaide Steamship was just one of many employers
  subject to a log of claims.

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• The immediate issue was whether Commonwealth
  industrial law could constitutionally apply to
  State trading instrumentalities
• By majority it was held that the States were
  subject to Commonwealth legislation, including
  industrial legislation enacted under Constitution
  s 51(xxxv)

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2. The Primacy of the Text

• Anchoring interpretation in the express words

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• The court reviewed interpretive method
• The ruling idea is the primacy of the express
  text
• Some reservations were made about State
  prerogatives and special Commonwealth powers eg
  taxation
• The reservations eventually became subsumed
  within some general intergovernmental immunity
  rules

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3. DEmden v Pedder examined

• DEmden v Pedder (1904) 1 CLR 91 was the
  foundation case for the original
  intergovernmental immunities doctrine. Engineers
  attacks the reasoning in DEmden, but
  rationalises the conclusion
• A later case that applied DEmden is attacked as
  resting on opinions as to hopes and expectations
  respecting vague external conditions

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4. Responsible government

• How much of the architecture of the Australian
  Constitution is modelled on the United States
  Constitution?
• Does the doctrine of responsible government and
  the supposed indivisibility of the Crown support
  what Engineers says about the value of American
  precedents?

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5. Plain meaning rule

• Engineers fails to acknowledge that the plain
  meaning rule was endorsed in Tasmania v
  Commonwealth (1904) 1 CLR 329, the year in which
  DEmden v Pedder was decided.
• Engineers is associated with a more sophisticated
  version of literalism than the version actually
  spelt out in the case

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6. Political necessity?

• The original immunities doctrine was justified as
  an implication based on political necessity.
  Engineers says reliance on political necessity is
  indefensible
• It is argued that courts should not limit
  legislative authority merely because it is feared
  that power will be abused

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Identify the plain meaning of the express text
then

• lucet ipsa per se!!

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7. The Crown under the Constitution

• A laboured set of passages which establish that
  the Crown in its various capacities is bound by
  the Constitution. The power of the Commonwealth
  to bind the States is seen as an aspect of this
  general conclusion
• It is possible to reach this conclusion without
  invoking the notion of the one and indivisible
  Crown

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8. Reserved powers doctrine disapproved

• Engineers is surprisingly brief on the point on
  which the authority of the case has never been
  doubted
• Our understanding of the case on this point
  depends on reading it together with earlier
  judgments by Isaacs J. The ideas have also been
  explained very clearly in many later judgments.

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9. Paramountcy of Commonwealth law

• These passages foreshadow the later expansion of
  inconsistency doctrine in Clyde Engineering Co v
  Cowburn (1926) 37 CLR 466
• The language of the DEmden v Pedder
  non-interference principle lives on in the second
  (rights impairment) test of inconsistency

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10. Summary

• The debris of dicta has been cleared and the
  Constitution is speaking with its own voice -
  providing one can understand the translation
  Engineers puts forward!
• Sawer on Engineers Isaacs was given to rhetoric
  and repetition, and here he gave these habits
  full rein

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Evaluating Engineers

• RTE Latham The fundamental criticism of the
  decision is that its real ground is nowhere
  stated in the majority judgment
• (Is this correct? Is such an assertion open to
  proof or disproof?)

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• Windeyer J in the Payroll Tax case (1971) 122 CLR
  353 argues that the results in Engineers should
  not be regarded as correcting antecedent errors
  or as uprooting heresy. But he goes on to say
  to return today to the discarded theory would
  indeed be an error and the adoption of a heresy