27 August 2013

Williams v Commonwealth [2012] HCA 23

Posts in this blog have referred to Williams v Commonwealth [2012] HCA 23. An authoritative analysis is provided in 'Heresy in the High Court? Federalism as a Constraint on Commonwealth Power' by David Paul Hume, Andrew Lynch & George Williams in (2013) 41(1) Federal Law Review.

The authors comment that -
Where the Work Choices Case offered strong confirmation of the principle that each conferral of power is to be read fully on its own terms, Williams may be understood as a case strongly animated by a concern for constitutional coherence. This same spirit was evident in the federalism-reinforcing dissenting judgments of Kirby J and Callinan J in the Work Choices Case, and Heydon J in Pape. It is a spirit that in Williams entered the mainstream of the Court. A majority of judges read down the power in s 61 in light of s 96, with two of them stating that if a construction of s 61 would render s 96 inutile then that was a reason for avoiding that construction. But neither the text nor nature of s 96 renders it equivalent to a 'positive prohibition or restriction'. Section 96 is a surprising candidate for the principle voiced by Dixon CJ in Attorney-General (Cth) v Schmidt that one power may confine the ambit of others where the former is 'subject to a safeguard, restriction or qualification'. In the Work Choices Case, the majority affirmed that principle and its subsequent endorsement in Bourke v State Bank of New South Wales, but rejected the attempt by Kirby J to apply it more expansively in order that the power in s 51(xxxv) was not 'effectively render[ed] … irrelevant'. Yet in Williams, members of the Court abandoned this restraint and were willing to read one power down to ensure another retained some function. Also, some judges were willing to see the positive conferral of the s 96 power as carrying an implication that other powers should be understood not to authorise the same outcome, irrespective of whether any particular 'order or form of things' on which the negative implication would operate was identified.
Above all, the judgments in Williams are pervaded by a sense that the interpretive onus is not on those seeking to show that broadly-expressed Commonwealth power ought be subject to limits. The generally conferred power in s 61 was not taken on its face. The Court did not go so far as to suggest that the onus was on the Commonwealth to show why the positively conferred power should extend as far as was suggested. However, Heydon J's account of the conduct of the case,  conveys a sense that the Commonwealth enjoyed little of the ease that might follow from the more usual insistence that the onus rests on the party seeking to limit a positive power to identify the nature and constitutional source of the limitation.
Is Interpretive Federalism Here to Stay?
How significant is the High Court's retreat from the interpretive principles adopted in the Work Choices Case? Does the interpretive federalism adopted by the Court in Williams signal a broader, pro-federalism shift in constitutional interpretation? xxx
xx There is a reasonable argument that s 61 is a special case and so Williams should not be taken to reflect a broader shift, especially when it comes to the construction of federal legislative powers. That argument might be made on a number of bases. First, s 61 is expressed so generally that, paradoxically, it is more readily read down than are the Commonwealth's heads of legislative power. Similar to the greater willingness of courts to read down general words in statutory provisions so as to preserve their constitutional validity: generality begets constriction. However, it is worth observing that this is so only if one abandons the principle that powers should be construed with all the generality that the words used admit. Further, as Isaacs J said in the quote from Le Mesurier v Connor extracted in Part II, it is the very generality of the words in s 61 that necessitates the search for limiting factors from outside that provision. There is less need to search for limiting factors in the case of the heads of power: their limits are disclosed by the text of the powers themselves.
Secondly, executive power is itself a special kind of power, which the High Court has often suggested is in special need of circumscription. In the Communist Party Case, Dixon J famously linked executive power to unconstitutional usurpation of democratic institutions, stating that '[h]istory and not only ancient history, shows that in countries where democratic institutions have been unconstitutionally superseded, it has been done not seldom by those holding the executive power'. French CJ quoted these words in Pape. He has also spoken extra-curially of the perception that the executive is the 'most dangerous branch' of government because of its 'vast array of powers … and its control of public finances'.
Thirdly, the construction of s 61, unlike that of the s 51 heads of power, is not weighed down by a rich body of jurisprudence. That body of jurisprudence brought about the decision in the Work Choices Case; and it, including now the Work Choices Case itself, will continue to weigh on future jurisprudence charting the limits of the heads of legislative power. In contrast, the Court can, to a significant extent, approach s 61 afresh and as a matter of first impression.
Fourthly, Williams must be understood as a case about both federalism and responsible government. In part, and although this is not a perfect explanation of the way the judges actually reasoned, the case can be understood on the basis that federalism dictated the conclusion that the executive's at large extra-statutory power to spend and contract was constrained by the heads of legislative power; and then, in turn, responsible government dictated the conclusion that the power should be confined to circumstances where that legislative power has actually been exercised to support the executive action. Arguably, Williams was primarily about the latter restriction on power, not the former. To the extent that responsible government and not federalism was the dominant interpretive theme, the federalism-reinforcing aspects of the Williams methodology may be of less significance in the future.
Fifthly, Williams can even be understood as a consequence of the Work Choices Case. By this we mean simply that the breadth of the legislative power recognised in the latter has the result that, if the executive did enjoy a general extra-statutory power to spend and contract so long as that conduct could be authorised by a hypothetical law, this would amount to a very broad power to spend and contract. Even relying on the corporations power alone, through appropriately framed contracts with or grants to corporations, there may have been little the executive could not achieve. The breadth of that potential power may have played on the Court's mind in Williams, warranting the narrowing of executive power. If Williams is the consequence of broad Commonwealth legislative power, then it would be the tail wagging the dog for the Williams approach to then be applied to limit that broad legislative power. On the other hand, while one might argue that the Williams methodology extends no further than s 61, there are some signs that it could mark a more general retreat from the high point of Commonwealth power reflected in the Work Choices Case. The most significant feature of Williams was the Court's willingness to rely on considerations of constitutional structure and coherence in determining the ambit of Commonwealth power. This language in particular has the attraction of fitting rhetorically with the High Court's recent general emphasis on 'coherence'. This may be distinguished from the view of the majority in the Work Choices Case that 'to say … that the Constitution is to be read … as the one coherent document … merely occasions further inquiry with respect to the particular issue to be determined'. References to 'coherence', rather than 'structure', may allow the Court to avoid the difficult debates around when a structural implication, as distinct from a textual implication, may be made. The language of coherence also has the attraction of sounding unequivocally like a good thing: of course constitutional law and the Constitution should be coherent, whenever possible. Considerations of structure and coherence cannot be cabined to s 61. They necessarily apply to the construction of each provision of the Constitution. It is conceivable that this spirit of constitutional coherence could have a life outside the context of executive power. Certainly, it is unclear why it should not. In that case, Williams may mark the beginning of a significant retreat from the high water mark of Commonwealth power manifested in the Work Choices Case.