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[C]o-operative federalism is not a constitutional term. It is a political slogan, not a criterion of constitutional validity or power. ... Where constitutional power does not exist, no cry of co-operative federalism can supply it. If the object lies outside the reach or the effect of what a State or the Common-wealth can constitutionally do, the subject matter is beyond the reach of the legislature. [1]
Co-operative federalism is the process by which the Commonwealth and the States organise for their overlapping constitutional powers to be exercised concurrently in order to achieve national outcomes through consensual processes.[2] Beginning with Re Wakim,[3] the controversial cross-vesting case, from which the opening statement above by Justice McHugh was taken, the High Court has applied a restrictive approach to interpreting constitutional and statutory provisions when cooperative arrangements have been challenged.[4]
According to Professor George Williams:
Recent interpretation of the Constitution has placed great strain upon co-operative federalism... The appointment of five new judges to the High Court since 1995 has brought about a dramatic shift in approach. It appears that the court is no longer willing to positively shape the Constitution to promote o-operation.[5]
The result is that, however convenient and effective these examples of co-operative federalism in action proved to be, they have been ruled invalid by the High Court on the basis of "dry and technical"[6] legal points. This occurred in the recent case of Bond v R.[7]
This paper provides an analysis of the High Court's contemporary approach to legal and constitutional issues concerning cooperative federalism, using Bond v R as a key case study.
The Commonwealth DPP knocked on the Court's door. But as he had no lawful authority to do so, the Court could not bid him enter. It could only open its door a fraction to say so and to send him on his way.[8]
On 5 February 1997, Murray J in the Supreme Court of Western Australia sentenced disgraced entrepreneur Alan Bond to three years imprisonment for each of the two offences for which he was prosecuted (failing to act honestly in his capacity as an officer of a company, with intent to defraud its shareholders, contrary to ss 229(1)(b) and 570 of the Companies (Western Australia) Code). Each sentence was to be served cumulatively upon a sentence already being served by Bond, and therefore the total effective sentence was four years imprisonment.
The prosecution of the two offences for which Bond was sentenced was initiated by Ian Bermingham, Deputy Director of Public Prosecutions of the Commonwealth (Perth), for and on behalf of the Office of the Commonwealth DPP. Both Commonwealth and Western Australian law empowers a member of the staff of the Office of the Commonwealth DPP to prosecute offences under Western Australian laws, upon the consent of the Attorney-General of the Commonwealth.
The relevant Western Australian provision which enabled the Commonwealth DPP to prosecute Bond is s 91(1) of the Corporations (Western Australia) Act 1990 (WA) ('WA Corporations Act') providing that the Commonwealth DPP "has the same enforcement powers in relation to [the State Code] as has the Crown in right of the State of Western Australia acting by the Attorney-General or such other person as may be prescribed by regulation". According to the High Court's decision in Re Cram; Ex parte NSW Colliery Proprietors' Association Ltd,[9] a State cannot unilaterally vest functions under its law in officers of the Commonwealth whose powers are vested in them by Commonwealth law.[10] The Commonwealth therefore needed to enact complementary legislation so that the Office of the Commonwealth DPP could accept the power to prosecute offences against Western Australian laws (and, indeed, laws of any other State). Such authority was given by s 17 of the Director of Public Prosecutions Act 1983 (Cth) ('Commonwealth DPP Act') which provides that: "Where a member of the staff of the Office, with the consent of the Attorney-General, holds an appointment to prosecute offences against the laws of a State, the member may institute and carry on, in accordance with the terms of the appointment, prosecution for such offences." (emphasis added)
The agreement between Western Australia and the Commonwealth, allowing the Commonwealth DPP to prosecute offences against State law, is an excellent example of the operation of co-operative federalism. The Commonwealth DPP can prosecute State offences involving a matter of national public interest (such as in the Bond case), and can take on prosecutions requiring the expenditure of a vast sum of money to institute and carry on, which the Commonwealth DPP has the resources to accommodate. The cooperative scheme is considered to be particularly useful in securing joint drug prosecutions.[11] The Commonwealth DPP's ability to institute appeals against sentences for offences which it had prosecuted enhanced the effectiveness of the scheme, because instituting appeals against sentences requires a thorough understanding of the prosecuted case.
At issue in Bond was whether the relevant Western Australian and Commonwealth legislative provisions could be construed as permitting the Commonwealth DPP to also institute an appeal against the sentence imposed after prosecuting the State offence(s). An answer in the affirmative would uphold and buttress an effective scheme of cooperative federalism, whereas a negative response would require the strict application of common law rules and constitutional provisions to invalidate a fundamental part of this scheme.
The competency of the Commonwealth DPP to institute an appeal against a sentence imposed for offences against Western Australian (and other State) law after prosecuting the offences became an issue because, following the original sentencing on 5 February 1997 by Murray J, on 21 February 1997 a notice of appeal against the sentences imposed was filed by the Commonwealth DPP. The Commonwealth DPP felt that the original sentences were too lenient. On 22 August 1997, the Court of Criminal Appeal in Western Australia allowed the appeal, and increased Bond's sentence to four years for one offence and three years for the other offence—each sentence to be served cumulatively upon the sentence he was already serving at the time. The total effective sentence became seven years imprisonment, rather than four.
Before the High Court, Bond challenged the competency of the Commonwealth DPP's appeal on the grounds that the relevant Commonwealth and State legislation distinguishes between instituting and conducting prosecutions, on the one hand, and appealing, on the other.[12] By implication, only State authorities have the capacity to appeal sentences for State offences, because neither Commonwealth or Western Australian law expressly states that the Commonwealth DPP is empowered to appeal against sentences for offences under Western Australian law. This argument relied to a large extent on the earlier decision in Byrnes,[13] in which the High Court held that the Corporations Act 1903 (SA), s 91 did not empower the Commonwealth DPP to appeal against sentences for offences against the Companies (South Australia) Code, such as to render incompetent the Commonwealth DPP's appeal.[14]
In a unanimous decision, the High Court (Gleeson CJ, Gaudron, McHugh, Gummow, Kirby and Hayne JJ) upheld Bond's appeal, ruled that the Order of the Court of Criminal Appeal of Western Australia be set aside and ordered that the Commonwealth DPP's appeal be dismissed as incompetent. Bond was released from prison on the afternoon of the judgment.
The two main reasons[15] given by the High Court for upholding Bond's appeal were as follows:
i) Section 17 of the Commonwealth DPP Act, which provides the Office of the Commonwealth DPP with the power to prosecute offences against the laws of a State (including Western Australia), does not expressly empower the Commonwealth to appeal a sentence for State offences. Therefore, the Act should not be interpreted as to provide for such a power. This is due to an earlier High Court decision, Malvaso v R,[16] in which the Court held that "[a] convicted person should not be deprived of the liberty left after sentencing at first instance except by procedures which have been expressly authorised".[17] The Malvaso rule is an extension of the general principle that statutes should be interpreted contra proferentum to favour the individual rather than the State.
As Deane J stated in an earlier High Court decision, Rohde v Director of Public Prosecutions:
As a matter of established principle, a general statutory provision should not ordinarily be construed as conferring or extending such a prosecution right of appeal against sentence unless a specific intention to that effect is manifested by very clear language.[18]
The Court felt that Malvaso should be applied, and consequently s 17 of the Commonwealth DPP Act should be interpreted strictly rather than being construed to confer power on the Commonwealth DPP to institute appeals against sentences for State offences, because:
[A]ppeals against an alleged inadequacy of sentence have long been accepted in this country as cutting across the time-honoured concepts of criminal administration by putting in jeopardy for the second time the freedom beyond the sentence imposed. ... It is a jurisdiction the exercise of which is attended by some restraints. It is, therefore, an exceptional jurisdiction.[19]
ii. Even though it was accepted by the High Court that s 688(2) of the Criminal Code (WA) ('WA Criminal Code') authorised the Commonwealth DPP to institute appeals against sentences for State offences,[20] the Commonwealth DPP Act, s 17(2) did not provide for such wide powers. Therefore, to the extent of its inconsistency with the Commonwealth provision, s 688(2) must be declared invalid through the operation of s 109 of the Constitution. The Court stated that:
[I]f a law of the Commonwealth prescribes the power and authority of an officer of the Commonwealth to perform some function conferred by State legislation, a State law which purports to grant some wider power or authority to that officer is, to that extent, inconsistent with the Commonwealth law and invalid under s 109 of the Constitution.[21]
For the purposes of later discussion, something must be said about why the Court was inclined to the view that s 688(2) of the WA Criminal Code empowered the DPP to institute appeals, whereas s 17 of the Commonwealth DPP Act did not, even though the power of the Commonwealth DPP to institute appeals is not clearly and unambiguously provided for in either provision. The WA Criminal Code, s 688(2) provides that:
[a]n appeal may be made to the Court of Criminal Code on the part of the prosecution –
...
(d) against any punishment imposed or order made in respect of a person convicted on indictment. (emphasis added)
The High Court accepted that the practice in Western Australia is to understand the reference in s 688(2) to "the prosecution" to mean that the decision to institute an appeal by the prosecution against sentence may be taken by any person appointed to sign and present indictments.[22] By this reasoning, as the WA Corporations Act, s 91(1) empowers the Commonwealth DPP to sign and present indictments, the notice of appeal signed on behalf of the Commonwealth DPP was valid under s 688(2).
It is submitted that if the Commonwealth law had been interpreted with the same degree of flexibility used by the Court in interpreting s 688(2), there would have been no direct inconsistency between the Commonwealth and State law as both would have been construed as empowering the Commonwealth DPP to institute appeals, and thus there would have been no need for s 109 of the Constitution to have come into operation.
This section provides a critical examination and evaluation of the approach to statutory interpretation and constitutional application taken by the High Court in its unanimous decision in Bond. In light of this, the writers then question why two members of the Court—Kirby and McHugh JJ—formed part of the unanimous judgment in Bond when considering recent judicial and extra-curial statements made by them both.
The High Court's reading down of s 17 of the Commonwealth DPP Act, to conclude that the Commonwealth DPP only had the power to prosecute State offences and not to appeal against sentences for State offences, seems to be quite restrictive and inflexible. The Court was unanimous in its conclusion that the rule in Malvaso required the Court to construe s 17 as to empower the Commonwealth DPP only to prosecute State offences, because the power to institute appeals was not expressly stated in s 17 of the Act. However, such an approach is ostensibly inconsistent with the way in which s 688(2) of the WA Criminal Code was interpreted by the Court, and also seems to be inconsistent with the more flexible and reasonable approach to statutory interpretation used by the Court in another recent decision, Truth About Motorways Pty Limited v Macquarie Infrastructure Management.[23]
While it may be that the High Court in Bond approached the case on the basis that it was merely determining the appropriate limits of the criminal process in light of an opaque legislative arrangement, the end result is that the decision was one of major constitutional significance. The case did not involve constitutional interpretation, but did require constitutional application. Section 109 of the Constitution came into operation because s 688(2) of the WA Criminal Code was held to provide the Commonwealth DPP with wider powers (including the power to institute appeals against sentences for state offences) than s 17 of the Commonwealth DPP Act. As was discussed earlier, neither provision expressly gave the Commonwealth DPP authority to institute appeals, however the High Court accepted that in Western Australia the standard practice was to understand s 688(2) of the WA Criminal Code as providing the Commonwealth DPP with such authority. Therefore, the Court did not consider itself bound by the Malvaso rule when considering the scope of s 688(2), because this standard practice seemed to carry more weight.
This highlights a problem with the Court's interpretation of s 17 of the Commonwealth DPP Act and application of s 109 of the Constitution. Although it may have been reasonable for the Malvaso rule to be also applied to read down s 688(2) of the WA Criminal Code in order to prevent a textual collision between the Commonwealth and State legislative provisions and the operation of s 109, it is submitted that the more appropriate option would have been for the Court to have followed its approach in interpreting s 688(2) when determining the scope of the Commonwealth DPP's powers under s 17 of the Commonwealth DPP Act. As the Court accepted that s 688(2) of the WA Criminal Code gave the Commonwealth DPP power to institute appeals against sentences, even though s 688(2) rather vaguely refers to "the prosecution" rather than expressly to "the Commonwealth DPP" as the repository of the power to appeal, the Court departed from the rule in Malvaso's case. There is no principled reason why the Court could not have done the same in relation to s 17 of the Commonwealth DPP Act. Indeed, it could be argued that the common practice of the Commonwealth DPP relying on s 17 to institute appeals against sentences, as evidenced in Byrnes and Bond, demonstrates that it was the Commonwealth's intention that s 17 authorise the DPP to initiate both prosecutions and appeals.[24]
The High Court's approach to statutory interpretation and constitutional application in Truth About Motorways,[25] incidentally handed down on the same day as Bond, lends further support to the argument that the Court's reliance on the Malvaso rule in Bond's case is questionable. In Truth About Motorways, the Court was asked to decide whether the phrase "any person" in ss 80 and 163A of the Trade Practices Act 1974 (Cth) ('Trade Practices Act'), which allow individuals to seek injunctions and declarations (respectively) to remedy breaches of the Trade Practices Act, should be interpreted broadly to mean that persons without standing—that is, without a special interest in the subject matter of the proceedings—can seek remedies under s 80 or s 163A from a court exercising Federal judicial power.
The argument raised against such a broad interpretation of "any person" is that Chapter III of the Constitution, to which the Commonwealth Parliament's legislative powers are subject,[26] limits the Parliament's legislative power by allowing it to make laws conferring jurisdiction on courts exercising Federal judicial power only with respect to the "matters" listed under the Constitution, ss 75-77.[27] It was argued that to broadly interpret "any person" in ss 80 and 163A of the Trade Practices Act to mean that individuals without standing (in other words, officious bystanders) could apply to a Chapter III court for remedies under the Act would be inconsistent with Chapter III because there would be no "matter"- which requires a "justiciable controversy regarding rights, duties or interests".[28] An officious bystander does not have any such rights, duties or interests.
The High Court ruled that the long-standing common law rule that applicants must show sufficient standing, which is a constitutional requirement due to the use of the term "matter" in various sections in Chapter III of the Constitution, did not mean that the phrase "any person" in ss 80 and 163A of the Trade Practices Act had to be narrowly interpreted to deny the officious bystander access to remedies in reliance on these provisions.[29] Although Truth About Motorways may possibly be distinguished from Bond in that it dealt with legislation imposing a civil penalty rather than a criminal statute, the case does demonstrate that the High Court on occasion is willing to sidestep an entrenched common law rule in order to accommodate a conveniently wide interpretation of statutory provisions and a flexible application of the Constitution.
The approach by the Court in Truth About Motorways is embodied in the following statement by Kirby J in his separate majority judgment in that case:
This Court should not accept the attempt to use the constitutional notion of 'matter' to erode significantly the legislative powers of the Federal Parliament and to import a serious and unnecessary inflexibility into the Constitution.[30]
It is submitted that if in Bond both the WA Criminal Code, s 688(2) and the Commonwealth DPP Act, s 17 had been interpreted by the Court using the same flexible approach as in Truth About Motorways, there would have been no need to apply the Constitution (here, s 109) to invalidate part of an effective scheme of co-operative federalism which assisted in the administration of justice.[31] The present writers would argue that it was the duty of the High Court, as the guardian of the Constitution and superior court in Australia, to apply an expansive reading of s 17 (giving the Commonwealth DPP power to institute appeals) in order to encourage and support cooperative federalism—not as a political slogan, but as a "positive objective of the Constitution".[32]
It is submitted that McHugh J, in forming part of the unanimous judgment in Bond, agreed to a method of judicial decision-making and constitutional interpretation/ application, which is inconsistent to that which he has supported judicially and extra-curially in recent times. In resolving justiciable controversies for which interpretation and/or application of the Constitution is involved, McHugh J has stressed that the Court must apply a doctrine of 'constitutional integrity'—a term devised by US law professor Ronald Dworkin.[33] In Re Wakim,[34] where the High Court ruled that the Commonwealth-State cross-vesting of jurisdiction scheme was constitutionally invalid on the basis that the Constitution does not give the Federal Parliament power to make laws allowing Federal courts to exercise State judicial power,[35] McHugh J (part of the majority in that case) said that applying this doctrine of constitutional integrity meant that "our duty is to give effect to the principles of the Constitution even if it is inconvenient to do so."[36]
The doctrine of constitutional integrity, adopted by McHugh J in Re Wakim, is a derivative of a method for statutory and constitutional interpretation referred to as 'textualism' which is presently in vogue in the United States.[37] Textualism demands inflexible legal reasoning based solely on the text of the instrument, without reliance on exogenous factors such as social mores and political considerations.[38] In this respect, textualism is similar to the interpretative method of "strict and complete legalism" advocated by Australia's former Chief Justice Sir Owen Dixon. In an address to mark his swearing in as Chief Justice of Australia, Dixon eloquently opined:
...[L]egal reasoning is the only way to maintain the confidence of all parties in federal conflicts. It may be that the court is thought to be excessively legalistic. I should be sorry to think that it is anything else. There is no other safe guide to judicial decisions in great conflicts, than a strict and complete legalism.[39]
As can be taken from the earlier statement of McHugh J, his Honour believes that the doctrine of constitutional integrity requires strict adherence to the principles underlying the Constitution. The convenience and effectiveness of the legislative provision or scheme being challenged is irrelevant.[40] It is not legitimate to construe the Constitution by reference to political principles or theories that are not anchored in the text of the Constitution.[41] The way in which the doctrine of constitutional integrity operates to require strict and often inconvenient application of the constitutional text can be seen from the following statement by McHugh J in Re Wakim:
It would be very convenient and usually less expensive and time-consuming for litigants in the Federal courts if those courts could deal with all litigious issues arising between the litigants irrespective of whether those issues have any connection with Federal law. From the litigant's point of view, that is saying a great deal. But unfortunately, from a constitutional point of view, it says very little.[42]
Even though the Commonwealth-State cross-vesting scheme clearly improved the administration of justice both in State and Federal courts,[43] and was thus another successful example of cooperative federalism in action, Justice McHugh decided that constitutional integrity could not accommodate such a scheme. According to his Honour, cooperative federalism is a political slogan rather than a constitutional principle,[44] and therefore cooperative federalism could not be used as the basis for an expansive reading of the Federal Parliament's law-making powers under s 51 and Chapter III of the Constitution to enable Federal courts to exercise State jurisdiction. It seems that McHugh J sees federalism in a co-ordinate, rather than a co-operative, sense—reflecting the position that the Court held prior to the landmark Engineers case.[45]
With respect, the present writers believe that McHugh J's contention that, in the context of co-operative legislative schemes, cooperative federalism and constitutional integrity are conflicting objectives, and that the former does not deserve the recognition of the latter, is incorrect.[46] Looking strictly at the text of the Constitution, it can be seen that federalism is one of the general principles underlying the Constitution as a whole.[47] As former Chief Justice of Australia Sir Anthony Mason explained extra-curially, a fundamental feature of our Constitution is "[t]he division of powers between the central and State legislatures, on the footing that the former enjoys 'enumerated' powers and the latter residual powers."[48] Therefore, applying McHugh J's line of reasoning, an approach to statutory and constitutional construction, which facilitates and promotes the ideal of federalism should be favoured over one that does not. For, we would argue, promotion of the federalism ideal (as opposed to rampant centralism) ensures that the federal system of governance is workable and effective.[49]
In the opinion of the present writers, in Re Wakim,[50] McHugh J could have given greater consideration to the nature of Australia's federal system of government and how cooperative schemes involving the Commonwealth and the States, such as the impugned cross-vesting scheme, facilitate and promote a workable federal system. Indeed, we would argue, and we are certainly not alone in this regard,[51] that a workable federal system cannot be achieved without cooperation and agreement between the various tiers of government to achieve national outcomes through consensual processes.
Cooperative federalism is more than just a mere political slogan or an implication which can be derived from the federal system of government shaping Australia's constitutional framework,[52] it is an integral part of a true and workable federal system.[53] This argument was supported by Kirby J in Gould v Brown:
The Federation which the Constitution establishes is obviously one intended to operate with a high measure of cooperation between the component parts ... [N]o federal system of government could work without cooperation between the polities constituting the federation. So much is inherent in the federal idea.[54]
In R v Duncan; Ex parte Australian Iron and Steel Pty Ltd[55] a majority of the High Court confirmed that cooperation between the Commonwealth and the States in relation to the exercise of power is an integral part of the constitutional principle of federalism. In this case, the High Court said that the Constitution supported a cooperative scheme by which the Coal Industry Tribunal (established by the Commonwealth) was given the power, under both Commonwealth and State law, to resolve disputes in the coal industry. It was necessary for the States to vest this Commonwealth-established tribunal with certain powers to resolve industrial disputes, because the Commonwealth's power to legislate for industrial dispute resolution under s 51 (xxxv) of the Constitution is limited to interstate disputes—and only by means of conciliation and arbitration. The cooperative scheme, therefore, enabled the Coal Industry Tribunal to exercise an extended number of powers which the Commonwealth could not vest in it so that dispute resolution in the coal industry could be made as efficient and effective as possible.
In Duncan, Gibbs CJ, as part of the majority upholding the cooperative scheme for the Coal Industry Tribunal, explained why our Federal Constitution accommodates cooperative federalism:
There is no express provision in the Constitution, and no principle of constitutional law that would prevent the Commonwealth and the States from acting in co-operation, so that each, acting in its own field, supplies the deficiencies in the power of the other, and so that together they may achieve, subject to such limitations as those provided by s 92 of the Constitution, a uniform and complete legislative scheme.[56]
Justice Deane, in his separate majority judgment in Duncan, supported the argument that cooperation is a constitutional rather than political objective due to our federal system of government, and even went as far as to say that provisions in the Constitution provide for Commonwealth-State cooperation:
The existence of a constitutional objective of Commonwealth/State cooperation may, on occasion, be obscured by the fact that cases in this court in relation to the constitutional scope of legislative powers are commonly concerned with the resolution of competing legislative claims of the Commonwealth and one or more of the States. It is, however, unnecessary to do more than refer to the provisions of s 51(xxxiii), (xxxiv), (xxxviii) and of Ch V of the Constitution to demonstrate the existence of such a constitutional objective.[57]
The idea that cooperative federalism is necessarily inherent in a federal system of governance also has strong academic support. For example, Lawrence Claus, writing recently about the similarities and differences between Australian and American federalism, explained that the term 'federal' comes from the Latin word 'foedus' which means treaty or agreement.[58]
The doctrine of constitutional integrity should therefore facilitate and promote cooperative schemes between the Commonwealth and the States to give effect to the principle of federalism under the Constitution.[59] Arguably, to truly adhere to the constitutional integrity doctrine which his Honour approves, McHugh J should have recognised cooperative federalism as a fundamental constitutional objective, rather than dismissing it as a mere political slogan. In Bond, this perhaps should have led his Honour to apply a broad interpretation of s 17 of the Commonwealth DPP Act (to mean that the Commonwealth DPP also had authority to appeal sentences), not simply because the Commonwealth-State agreement allowing the Commonwealth DPP to appeal as well as prosecute under State law was convenient and improved the administration of justice, but rather because the result of narrowly interpreting s17 of the Act was that the Constitution was applied strictly by the Court to debase an effective scheme of cooperative federalism.
However, the convenience and effectiveness of the schemes being challenged in Re Wakim, Byrnes and Bond cannot be ignored.[60] In our respectful opinion, there is no basis for his Honour's statement in Re Wakim[61] that constitutional integrity requires judges to disregard the convenience and effectiveness of the scheme or arrangement when determining its constitutional validity. As was discussed above, the doctrine of constitutional integrity that has been adopted by McHugh J is very similar to the approach of "strict and complete legalism" advocated by former Chief Justice Sir Owen Dixon. Strict and complete legalism, like constitutional integrity, required close adherence to the text of the Constitution, without reference to political principles or theories which cannot be found in the Constitution or which are not necessary implications from its structure.[62] Despite this, Sir Owen Dixon accepted that the law, including the way in which the Constitution is interpreted, must change and be applied in such a way as to "meet the demands which changing conceptions of justice and convenience make."[63]
Indeed, Justice McHugh has also made similar extra-curial statements recently about the role of judicial decision-making. In an article entitled The Judicial Method,[64] his Honour outlined what he believed to be the correct approach to interpretation:
When legal rules and principles are no longer efficient or do not meet social needs, they must be reviewed and sometimes revised or extended. The law is a social instrument—a means, not an end. It changes as society changes. ... If judges were to become reluctant to adapt the law to a changing society, public confidence in the rule of law would be seriously impaired because large areas of law would be out of touch with the needs of society.[65]
It was not disputed in Bond that the scheme allowing the Commonwealth DPP to appeal against State sentences, as well as to prosecute State offences, was convenient and made the administration of justice—at both Commonwealth and State level—more efficient and effective. This scheme was invalidated as a direct result of the Court (including McHugh J) applying the rule in Malvaso's case to hold that the Commonwealth DPP did not have the power to appeal because s 17 of the Commonwealth DPP Act did not expressly provide such authority.
In the context of the Bond case and the Commonwealth-State arrangement being challenged, the principle in Malvaso that "[a] convicted person should not be deprived of the liberty left after sentencing at first instance except by procedures which have been expressly authorised"[66] appears to act contrary to the effective administration of justice. The result of Malvaso being applied in Bond was that a convenient Commonwealth-State cooperative scheme was substantially impaired, and the common law was not applied in such a way as to meet the demands of justice and convenience. As Malvaso seems to have been overlooked by the Court when interpreting the scope of power given to the Commonwealth DPP by the WA Criminal Code, it would have been reasonable and appropriate for the Court to have disregarded Malvaso when interpreting the Commonwealth DPP Act.
Based on what McHugh J has written extra-curially about judicial decision-making, juxtaposed with what was discussed above that constitutional integrity doctrine as a contemporary form of strict and complete legalism should take into consideration the convenience of the scheme or arrangement being challenged, it is submitted that his Honour was under a duty to give precedence to the fundamental constitutional objective of cooperative federalism, rather than strictly apply the Malvaso rule, in order to determine the scope of the Commonwealth DPP's power under s 17 of the Commonwealth DPP Act. By being a member of the unanimous decision in Bond, McHugh J's approach was inconsistent with his earlier statements concerning the role and method of judicial decision-making.
While Justice McHugh has yet to accommodate and promote cooperative federalism, Justice Kirby—both in judicial and extra-curial statements—has recognised the reality and importance of cooperative federalism in his approach to statutory and constitutional interpretation and application. It is therefore troubling that his Honour was a member of the unanimous decision in Bond's case that had the effect of undermining an effective Commonwealth-State cooperative scheme.
In a recent article entitled Constitutional Interpretation and Original Intent—A Form of Ancestor Worship,[67] Justice Kirby outlined his current approach to constitutional interpretation and application, stating:
[The Constitution] should be read to achieve the purposes of good government which the Constitution was designed to promote and secure. ... This is not to defeat the intention of the Constitution and its framers. On the contrary, it is to achieve its high and enduring government purposes.[68]
This flexible and purposive approach of interpreting and applying the Constitution to—so far as the text and spirit of the Constitution allows—achieve and uphold good government which Justice Kirby believes the Constitution was designed to secure, was expressed judicially by his Honour in Gould v Brown:
[T]he Constitution should be approached as a facility of rational and efficient government. Unless constrained by authority or clear constitutional principle, the Court should hold its mind open to new constitutional responses apt for the solution of new problems.[69]
Each of the various schemes of cooperative federalism challenged in the recent cases of Re Wakim, Byrnes and Bond (and subsequently Hughes) were designed to promote and secure good government. It was acknowledged by judges, governments and other interested groups and bodies that both the cross-vesting scheme (ruled constitutionally invalid in Re Wakim), and the Commonwealth-State arrangements allowing the Commonwealth DPP to appeal State sentences (invalidated in Byrnes and Bond through the operation of s 109 of the Constitution), provided for a more workable system of justice. Therefore, applying Kirby J's approach, to ensure the achievement of "high and enduring government purposes" which the Constitution was designed to promote and secure, in these cases the Constitution should have been interpreted and/or applied in a way which accommodated these schemes of cooperative federalism, while remaining true to the intention of the Constitution which can be discovered from its text and structure.
As Kirby J insisted in his dissenting judgment in Re Wakim, to be true to the objective of achieving the purposes of good government which the Constitution was designed to promote and secure, the desired approach to interpreting and applying constitutional provisions must permit the Constitution to adapt to the new realities of cooperative federalism.[70] Similarly, in Gould v Brown[71] his Honour contended that in the federal system of governance established by our Constitution, "[t]he polities constituting the Federation must necessarily cooperate in many ways to achieve peace, welfare and good government for the people of their respective jurisdictions."[72]
That cooperative federalism, meaning the Commonwealth and States working together to achieve joint objectives,[73] promotes and secures the purposes of good government which the Constitution was designed to achieve is difficult to dispute.[74] Indeed, as Michael Longo wrote:
[I]t is contended that cooperation as a means of governing the relations between the constituent parts of a federation in matters of shared competence is, in view of prevailing political, legal and socio-economic circumstances, the most appropriate response.[75]
In our respectful opinion, based on what his Honour said in Re Wakim[76] and Gould v Brown[77] concerning the interplay between the objective of good government and the need for cooperative federalism, as well as academic commentary relating to the importance of cooperation in terms of ensuring good government in a federal system, Justice Kirby's membership of the unanimous judgment in Bond's case acts against the way in which he has earlier said the Constitution should be shaped and applied.[78]
The Constitution only became involved because the Court in its unanimous judgment applied a restrictive interpretation of the scope of the Commonwealth DPP's powers in the Commonwealth DPP Act due to the rule in Malvaso's case. The end result was that Kirby J, as a member of the Court, allowed the Constitution to be applied inflexibly and non-purposively to render partially invalid a cooperative arrangement to promote and secure good government–which is anathema to his pronounced position on constitutional interpretation and application.[79]
Considering that s 109 of the Constitution only became an issue because there was inconsistency in the Court's application of the rule in Malvaso's case, it would have been understandable if Kirby J had dissented in Bond's case, delivering a judgment which departed fully from the Malvaso rule so that his Honour would not have been restrained from broadly interpreting the Commonwealth DPP's powers under the Commonwealth DPP Act. This way, there would have been no inconsistency between the relevant Commonwealth and WA law, and s 109 of the Constitution would not need to have been applied to further delimit cooperative federalism. Indirectly, Kirby J would have been acting consistently with his aim of shaping the Constitution to promote and secure the objective of achieving good government by not applying it to undermine cooperative federalism.
As Australia enters a new millennium, it is fundamental that the High Court tries to shape the Constitution in order to uphold and promote principles underpinning this document, in order to promote good government and popular sovereignty rather than institutional despotism.
With a series of decisions including Bond, the High Court appears to be turning its back to a system of cooperative federalism which has demonstrated its ability to achieve national objectives through more workable and effective governance-to the benefit of the Australian people in which constitutional sovereignty ultimately resides.
To maintain its legitimacy as the paramount constitutional umpire in Australia's federal system of governance, the High Court must seek to uphold rather than destroy lawful cooperation between the Commonwealth and the States. In the words of Justice Kirby, "[n]o other approach is appropriate to the interpretation of the basic law of the "indissoluble Federal Commonwealth" upon which the people of Australia agreed when the Constitution was adopted and which they are taken to accept for their governance today."[80]
[*] BCom/LLB student; LLB student (respectively), Deakin University—Melbourne Campus. The authors wish to thank a number of people for their helpful suggestions and comments, in particular Professor George Williams (University of New South Wales), Professor George Winterton (University of New South Wales), along with Dr Danuta Mendelson and Richard Haigh, both of Deakin University. Of course, any errors or omissions are the responsibility of the authors alone.
[1] Re Wakim; Ex parte McNally (1999) 198 CLR 511 ('Re Wakim') at 556 per McHugh J. See also McHugh J's pertinent comment in McGinty v Western Australia [1996] HCA 48; (1996) 186 CLR 140 at 231-32:
"After the decision of this Court in the Engineers' Case, the Court had consistently held, prior to Nationwide News and Australian Capital Television Pty Ltd v The Commonwealth, that it is not legitimate to construe the Constitution by reference to political principles or theories that are not anchored in the text of the Constitution or are not necessary implications from its structure" (emphasis added).
For a discussion of the High Court's alternative "flexible" approach to constitutional interpretation, refer to J McConvill "The United Kingdom is a Foreign Power- Sue v Hill" (2000) 4(2) Deakin L R 151.
[2] B Galligan, "The Future of Australian Federalism" in S Prasser and G Starr (eds), Policy and Change: The Howard Mandate (1997) at 97; M Longo, "Co-operative Federalism in Australia and the European Union: Cross-Polluting the Green Ideal" (1997) 25 F L Rev 127 at 147; Deputy Commissioner of Taxation (NSW) v WR Moran Pty Ltd [1939] HCA 27; (1939) 61 CLR 735 at 774 per Starke J: "Cooperation on the part of the Commonwealth and the States may well achieve objectives that neither could achieve; that is often the end and the advantage of cooperation" (emphasis added); A de Costa, "The Corporations Law and Cooperative Federalism after The Queen v Hughes" [2000] SydLawRw 21; (2000) 22 Syd L R 451 at 465: "The implicit constitutional principle of cooperative federalism acknowledges that Australian governments may work together to produce results ... that could not be achieved by each acting alone" (citations omitted). See also the joint judgment of Gleeson CJ, Gaudron, Gummow, Hayne and Callinan JJ in The Queen v Hughes (2000) 171 ALR 155 at 167-168.
[3] Re Wakim; Ex parte McNally (1999) 198 CLR 511. Re Wakim was actually a sequel to an earlier High Court decision, Gould v Brown (1998) 193 CLR 346. In Gould v Brown, the Court was split 3:3 as to the question of whether cross-vesting legislation was constitutionally invalid. Because of this, the unanimous decision of the Federal Court of Australia upholding the validity of the legislation (BP Australia v Amann Aviation [1996] NSWSC 534; (1996) 137 ALR 447) was not disturbed.
[4] See J Kirk, "Constitutional Interpretation and a Theory of Evolutionary Originalism" (1999) 27 F L Rev 321, for criticism of the legalism applied in Re Wakim.
[5] G Williams, "Power to the people to alter constitutional flaws" Financial Review 24 March 2000 at 30-31. See also G Williams, "The Real Answer is Constitutional Reform" Financial Review 1 December 2000 at 41.
[6] Bond v R (2000) 169 ALR 607 at 608 ('Bond').
[8] Byrnes v R [1999] HCA 38; (1999) 199 CLR 1 at 38 per Kirby J ('Byrnes').
[10] Bond (2000) 169 ALR 607 at 610.
[11] Bond v R P57/1999 (Transcript, 4 February 2000).
[12] Bond (2000) 169 ALR 607 at 608.
[13] [1999] HCA 38; (1999) 199 CLR 1.
[14] Bond (2000) 169 ALR 607 at 612.
[15] In its reasoning, the Court could also have applied the rule of interpretation expressed in the maxim expressio unius est exclusio alterius ("the inclusion of the one is the exclusion of the other") to reach its decision, because s 17 mentions the power to prosecute but not the power to appeal. The expressio unius rule could not be applied when interpreting the WA Criminal Code, s 688(2) because, unlike s 17, it does mention appeals—but doesn't expressly state that the Commonwealth DPP has the authority to appeal. The expressio unius rule was not, however, mentioned once in the Court's unanimous judgment, and should not therefore be dealt with in this paper. It should be noted though that in Russell v Russell [1976] HCA 23; (1976) 134 CLR 495 at 539 the Court said that the expressio unius rule must always be used with caution. See also Re Wakim (1999) 198 CLR 511 at 605 in which Kirby J opined that a cautious application of the expressio unius rule is necessary especially when construing constitutional provisions.
[16] [1989] HCA 58; (1989) 168 CLR 227, ('Malvaso').
[17] [1989] HCA 58; (1989) 168 CLR 227 at 233 (emphasis added); cited in Bond (2000) 169 ALR 607 at 613.
[18] [1986] HCA 50; (1986) 161 CLR 119 at 128-129 (citations omitted).
[19] Bond (2000) 169 ALR 607 at 613, citing Everett v The Queen [1994] HCA 49; (1994) 181 CLR 295 at 299 per Brennan, Deane, Dawson and Gaudron JJ.
[20] The Court concluded that, due to s 91(5) of the WA Corporations Act, s 91(1) of that Act, which authorised the Commonwealth DPP to institute prosecutions for State offences, did not empower the Commonwealth DPP to institute an appeal against sentence, Bond (2000) 169 ALR 607 at 613–614.
[21] Bond (2000) 169 ALR 607 at 610, citing Byrnes [1999] HCA 38; (1999) 199 CLR 1.
[22] Bond (2000) 169 ALR 607 at 612.
[23] (2000) 169 ALR 616 ('Truth About Motorways').
[24] If it was the Commonwealth's intention for s 17 to empower the Commonwealth DPP to institute both prosecutions and appeals relating to State offences, even though s 17 does not mention appeals, then the Court's approach in Bond of reading down the provision is inconsistent with the 'purpose approach' to interpretation of Commonwealth legislation which the Acts Interpretation Act 1901 (Cth), s 15AA mandates. Section 15AA(1) of that Act reads:
'In the interpretation of a provision of an Act, a construction that would promote the purpose or object underlying the Act (whether that purposeor object is expressly stated in the Act or not) shall be preferred to a construction that would not promote that purpose or object.'
For a discussion on how s 15AA of the Acts Interpretation Act, and its Victorian equivalent (the Interpretation of Legislation Act 1984 (Vic), s 35(a)) is applied, see S Streets, Butterworths' Casebook Companions: Administrative Law (2nd ed, 2000) at 40-41.
[26] The enumerated legislative powers of the Federal Parliament under s 51 of the Constitution (including the corporations power, s 51(xx), which supports the Trade Practices Act), are expressed to be "subject to this Constitution", which includes the negative implications arising from Chapter III. Consider the comments of Dixon CJ, McTiernan, Fullagar and Kitto JJ in R v Kirby; Ex parte Boilermakers' Society of Australia [1956] HCA 10; (1956) 94 CLR 254 at 267 : "[T]o study Chapter III is to see at once that it is an exhaustive statement of the manner in which the judicial power of the Commonwealth is or may be vested. It is true that it is expressed in the affirmative but its very nature puts out of question the possibility that the legislature may be at liberty to turn away from Chapter III to any other source of power when it makes a law giving judicial power exercisable within the Federal Commonwealth of Australia."
[27] For a discussion of the meaning of "matter" in the context of Chapter III of the Constitution, see Australian Securities and Investments Commission v Edensor Nominees Pty Ltd [2001] HCA 1 (8 February 2001) ('Edensor') at [50]-[60] per Gleeson CJ, Gaudron and Gummow JJ. Edensor is an important decision in that it overcomes some of the problems resulting from Re Wakim. In Edensor, a majority of the High Court decided that the Australian Securities and Investments Commission (ASIC) was "the Commonwealth" for the purposes of the Judiciary Act 1903 (Cth), s 39B(IA)(a). Section 39B(IA)(a) of the Judiciary Act provides that the original jurisdiction of the Federal Court of Australia also includes jurisdiction in any matter "in which the Commonwealth is seeking an injunction or a declaration". The effect of the decision is Edensor is that the Federal Court has jurisdiction to hear and determine applications brought by ASIC for declarations and injunctions under the Corporations Law. Before Edensor, due to the Re Wakim decision the Federal Court could only hear and determine Corporations Law matters if it was decided that these matters came within its "accrued jurisdiction". With ASIC now meeting the description of "the Commonwealth" for the purposes of the Judiciary Act, s 39B(1A)(a) and the Constitution, s 75(iii) and s 77(i), the Federal Court may now have the power to hear and determine all Corporations Law matters (including winding up orders) when ASIC is a party to the dispute, thus dispensing with the need for a referral of power over corporations from the States to the Commonwealth. See further the comments of B Pheasant, "Federal Court's doors open again" Financial Review 16 February 2001 at 40; as to the operation of s 79 of the Judiciary Act 1903 (Cth) in the decision see A Kempton, "The Jurisdiction of the Federal Court in the Wake of Re Wakim" (2001) 42 Corporate Law Electronic Bulletin, http://cclsr.law.unimelb.edu.au/Bulletins.
[28] Sue v Hill [1999] HCA 30; (1999) 199 CLR 462 at 515 per Gaudron J; also M Allars, "Standing: the Role and Evolution of the Test" (1991) 20 F L Rev 83.
[29] Truth About Motorways (2000) 169 ALR 616 at 619 per Gleeson CJ and McHugh J.
[30] Truth About Motorways (2000) 169 ALR 616 at 649; see also Kirby J's similarly-themed statements in Truth About Motorways at 649: "[Sections 80 and 163A of the Trade Practices Act] are not cut down or restricted by a limitation on the power of the Parliament to enact laws, implied from the requirement that the jurisdiction of a Federal court may only be conferred in respect of a 'matter''', and at 653: "Subject to the Constitution, no attempt should be made to import unexpressed restrictions." (emphasis added)
[31] C Saunders, "Administrative Law and Relations Between Governments: Australia and Europe Compared" (2000) 28 F L Rev 263, as to the effectiveness of co-operative mechanisms between the Commonwealth and any one State.
[32] A de Costa, above n 2 at 465-66.
[33] R Dworkin, "The Arduous Virtue of Fidelity: Originalism, Scalia, Tribe, and Nerve" (1997) 65 Fordham L R 1249 at 1250.
[34] (1999) 198 CLR 511.
[35] For an explanation of the intricacies of the Wakim cross-vesting case, see I Turley, "The Implications of Re Wakim" (2000) 4(2) Deakin L R 159; N Lucarelli, "Re Wakim: Cross-Vesting and Back Again" (1999) 110 Victorian Bar News 23; D Lam, "Wakim" [2000] SydLawRw 7; (2000) 22(1) Syd L R 155; C Saunders, "In the Shadow of Wakim" (1999) 17 Company and Securities Law Journal 507; Edensor [2001] HCA 1 (8 February 2001) at [8]-[12] per Gleeson CJ, Gaudron and Gummow JJ. For a concise explanation of the legislative response of the Commonwealth and the States to the High Court decision in Re Wakim (and the more recent decision in The Queen v Hughes [2000] HCA 22), see M Heatherington, "Resolving the Company Law Crisis after the High Court's decision in The Queen v Hughes" (2000) 28(5) Australian Business Law Review 364 at 372-3; A de Costa, above n 2 at 466-7; D Rose, "The Hughes Case: The Reasoning, Uncertainties and Solutions" (2000) 29 UWALR 180; G Lyon, "R v Hughes: Shuffling the Decks on the Titanic?" (2001) 6(1) Deakin L R (forthcoming) (copy on file with authors).
[36] Re Wakim (1999) 198 CLR 511 at 554 (emphasis added).
[37] R Dworkin, above n 33.
[38] D Tucker, 'Textualism: An Australian Evaluation of the Debate between Professor Ronald Dworkin and Justice Antonin Scalia' (1999) 22 Syd L R 567 at 567-68.
[39] 'Swearing in of Sir Owen Dixon as Chief Justice' (1951-52) 85 CLR at xi.
[40] In Australian National Airways Pty Ltd v Commonwealth (ANA Case) [1945] HCA 41; (1945) 71 CLR 29 at 40 Rich J also was of the opinion that the convenience/effectiveness argument must be disregarded when undertaking the task of statutory and/or constitutional interpretation. His Honour wrote: "[I]t cannot be too clearly understood that this Court is not in the smallest degree concerned to consider whether such a project is politically, economically, or socially desirable or undesirable." See also Kirby J's comments as to the efficiency of a particular system under legal challenge in R v Hughes (2000) 171 ALR 155 at 173.
[41] Also consider the statement by McHugh J in McGinty v Western Australia [1996] HCA 48; (1996) 186 CLR 140 at 231-32.
[42] Re Wakim (1999) 198 CLR 511 at 548.
[43] See, for example, M Crock and R McCallum, "The Chapter III Courts: The Evolution of Australia's Federal Judiciary" (1995) 6 Public Law Review 187 at 188: "Despite a few problems, the Federal and State courts still work harmoniously together. This is due in the main to a long-standing cooperative approach by State and Federal judges and governments" (emphasis added). See also Re Wakim (1999) 198 CLR 511 at 602 per Kirby J: "Yet the agreement of all the democratically-elected legislatures of Australia that a system of cross-vesting is necessary to help avoid inconvenience and expense, and to remove injustices and uncertainties occasioned by jurisdictional conflict, provides at least persuasive evidence that the legislation serves a practical rational purpose."
[44] Re Wakim (1999) 198 CLR 511 at 556.
[45] Amalgamated Society of Engineers v Adelaide Steamship Co [1920] HCA 54; (1920) 28 CLR 129.
[46] Consider Kirby J's statement in R v Hughes (2000) 171 ALR 155 at 174: "The presumption remains that federalism and cooperation are not inconsistent" (citations omitted).
[47] See G Sawer, Australian Federalism in the Courts (1967) at 121: "The Constitution is on its face federal and is so described in the Covering Clauses" (emphasis added). See also W Rich, "Converging Constitutions: An Analysis of Constitutional Law in the United States and Australia" (1993) 21 F L Rev 202 at 203: "The constitutional histories of both the United States and Australia have been frequently reviewed, and it is accepted that the federal structure of the two constitutions have much in common." (emphasis added).
[48] A Mason, "The Role of a Constitutional Court in a Federation: A Comparison of the Australian and the United States Experience" (1986) 16 F L Rev 1 at 2-3.
[49] Consider, for example, Ha v New South Wales [1997] HCA 34; (1997) 189 CLR 465 in which the High Court's rather broad interpretation of what constitutes a duty of excise for the purposes of s 90 of the Constitution, contrary to the interests of the States, has resulted in greater vertical fiscal imbalance and horizontal fiscal inequality. See McMonnies, R, "Ngo Ngo Ha and the High Court v New South Wales: Historical Purpose in History and Law (1999) 27(3) F L Rev 471 at 493: "The difficulty with the current position of the High Court with regard to excise duties is that, although the reasoning in Ha represents an application of legal pragmatism based on substance, the decision produces a most undesirable result. The problem created by Ha, and indeed any broad judicial interpretation of s 90, arises out of the federal system of government in Australia and its objectives". See also D Meale, "The History of the Federal Idea in Australian Constitutional Jurisprudence: A Reappraisal" (1992) 8 Australian Journal of Law and Society 25.
[50] Re Wakim (1999) 198 CLR 511.
[51] M Longo, above n 2 at 146: "[F]or political expediency and matters relating to cost and duplication of administrative effort, cooperation and shared responsibility represent sound policy imperatives". See also C Saunders, above n 35 at 513: "The [cooperative] system assumes that each jurisdiction is substantially complete in itself."
[52] Since Amalgamated Society of Engineers v Adelaide Steamship Co [1920] HCA 54; (1920) 28 CLR 129, the High Court has been loath to read into the Constitution implications drawn from a general theory of federalism. In Engineers, Knox CJ, Isaacs, Higgins, Rich and Starke JJ concurred (Duffy J dissenting) in expressly disapproving of the general principles of immunity of instrumentalities and implied prohibitions established in High Court decisions relying on the US case of M'Culloch v Maryland 4 Wheat [1819] USSC 5; (17 US) 316 (1819). Therefore, if cooperative federalism as a concept was no more than an implication to be drawn from the principle of federalism underlying the Constitution, the Court may be considered justified in disregarding it when interpreting and applying the Constitution. See the comments of G Hill, "R v Hughes and the Future of Co-Operative Legislative Schemes" [2000] MelbULawRw 18; (2000) 24 MULR 478 at 499-500.
[53] Re Residential Tenancies Tribunal of NSW; Ex parte Defence Housing Authority (1997) 190 CLR 410 at 508 per Kirby J: "The development of a constitutional doctrine of mutuality, cooperation and interrelationship is much more in keeping with the nature of the federal polity established by the Australian Constitution." (emphasis added)
[54] Gould v Brown (1998) 193 CLR 346 at 477.
[55] [1983] HCA 29; (1983) 158 CLR 535 ('Duncan').
[56] Duncan [1983] HCA 29; (1983) 158 CLR 535 at 580.
[57] Ibid at 589. See also the dissenting judgment of Kirby J in Re Wakim (1999) 198 CLR 511 at 604: "There is therefore nothing inherent in the Australian Constitution which forbids the cooperative sharing and combination of governmental powers within the federation. On the contrary, the constitutional text contemplates various forms of inter-governmental cooperation [see, eg, s 51(xxiii)] and cooperation between the parliaments of the Commonwealth and of the States [see, eg, s 51(xxxviii)]" (emphasis added).
[58] L Claus, "Federalism and the Judges: How Americans made us what we are" (2000) 74(2) Australian Law Journal 107. Consider also S Pufendorf, Of the Law of Nature and Nations (4th edition 1729) at 107.
[59] Refer to Gould v Brown (1998) 193 CLR 346 at 478 per Kirby J: "A high measure of cooperation between the polities created by the Constitution is both necessary and desirable for the proper operation of the Constitution. This Court, within the requirements of the constitutional text and authority, should uphold and facilitate such cooperation as one of the objectives for which the Constitution was made." (emphasis added)
[60] Another recent High Court decision which considered the constitutional validity of a Commonwealth-State co-operative scheme was R v Hughes (2000) 171 ALR 155 (hereinafter 'Hughes'). However, in relation to the cooperative federalism debate, this case really did not add to what was decided in the earlier cases of Byrnes and Bond. In Hughes, the Court again accepted that the power of State legislatures to cooperate with the Federal Parliament in the enactment of complementary legislation "[e]xtends to empowering officers and authorities of the Commonwealth, States and Territories to enforce each others' laws..." (at 174-5) so long as this is supported by the Constitution. Moreover, the High Court also held in Hughes that the States can legislate for State offences (in this case, under the Corporations Law of Western Australia) to be "taken to be" Federal offences (and prosecuted by Commonwealth officers), so long as the Federal Parliament enacts complementary legislation and this complementary legislation is supported by a head of Federal legislative power under the Constitution. According to Kirby J, in his separate majority judgment in Hughes (at 189): "Under our Constitution, criminal liability and punishment, when provided in a Federal law, must be supported by demonstrable constitutional authority. Convenience and desirability are not enough if the constitutional foundation is missing" (emphasis added); see also the leading judgment of Gleeson CJ, Gaudron, McHugh, Gummow, Hayne and Callinan JJ in Hughes (at 167-8): "[F]or the Commonwealth to impose on an officer or instrumentality of the Commonwealth powers coupled with duties adversely to affect the rights of individuals, where no such power is directly conferred on that officer or instrumentality by the Constitution itself, requires a law of the Commonwealth supported by an appropriate head of power" (emphasis added). For a discussion of the reasoning in and implications of Hughes, see D Rose, above n 35, and G Lyon, above n 35.
[61] (1999) 198 CLR 511.
[62] Consider West v Commissioner of Taxation (NSW) [1937] HCA 26; (1937) 56 CLR 657 at 681, in which Dixon J (as he then was) rejected the "notion that in interpreting the Constitution no implication can be made. ... [Such] a method of construction would defeat the intention of any instrument, but of all instruments a written constitution seems the last to which it could be applied."
[63] Sir Owen Dixon, Jesting Pilate and Other Papers and Addresses (1965) at 165.
[64] M McHugh, "The Judicial Method" (1999) 73 Australian Law Journal 37. Also consider the original article by his Honour: M McHugh, "The Law-Making Function of the Judicial Process" (1988) 62 Australian Law Journal 15, and R v Young [1999] NSWCCA 166; (1999) 46 NSWLR 681 which clearly outlined the alternative methods of statutory interpretation.
[65] M McHugh, "The Judicial Method" (1999) 73 Australian Law Journal 37 at 42 (emphasis added)
[66] Malvaso v The Queen [1989] HCA 58; (1989) 168 CLR 227 at 233.
[67] M Kirby, "Constitutional Interpretation and Original Intent-A Form of Ancestor Worship" [2000] MelbULawRw 1; (2000) 24 MULR 1.
[68] Ibid at 14 (emphasis added). His Honour's statement relied on a similar comment by Windeyer J in Spratt v Hermes [1965] HCA 66; (1965) 114 CLR 226 at 272: "The Constitution is read by today's Australians to meet, so far as its text allows, their contemporary government needs." (emphasis added)
[69] (1998) 193 CLR 346 at 476 (emphasis added); also Kirby J's dissenting judgment in Re The Governor, Goulburn Correctional Centre; Ex parte Eastman (1999) 165 ALR 171 at 194: "It is time to return to the language and purpose of the Constitution" (emphasis added); and especially his Honour in Hughes (2000) 171 ALR 155 at 174, in which he contended that there was "[a] charter [inherent in the Constitution] for the entire government of the Australian Commonwealth ... to operate harmoniously and efficiently to achieve the constitutional objectives of "peace, order, and good government of the Commonwealth"
[70] Ibid at 599-600.
[71] Gould v Brown (1998) 193 CLR 346.
[72] Ibid at 486 (emphasis added).
[73] G Williams, above n 5.
[74] It must be noted, however, that some commentators presently consider that centralisation of power rather than cooperative federalism may be the best way to overcome Australia's corporations law problems: see, in particular, G Lyon, above n 35: "The ultimate means by which certainty can be achieved is by constitutional amendment. Yet as Kirby J commented in Hughes, the path of such amendment to enlarge the corporations power has been littered with failure. In this sense, Australia stands at the crossroads. The certainty of corporate regulation may best be achieved by the increase in centralisation, at the expense of co-operative federalism." (emphasis added).
[75] M Longo, above n 2 at 147.
[76] Re Wakim (1999) 198 CLR 511.
[77] Gould v Brown (1998) 193 CLR 346.
[78] Justice Kirby's decision to apply the Malvaso rule and read down s 17 of the Commonwealth DPP Act in Bond, with the outcome being that a prisoner was set free and his liberty preserved due to his increased sentence resulting from a Commonwealth DPP appeal not expressly authorised by law, may however be considered congenial to Kirby J's objective for the engagement of fundamental human rights by Australian domestic law. In Newcrest Mining v The Commonwealth [1997] HCA 38; (1997) 190 CLR 513 at 657-8 (restated in Kartinyeri v The Commonwealth [1998] HCA 22; (1998) 195 CLR 337 at 417-9) his Honour stated: "Where the Constitution is ambiguous, this Court should adopt that meaning which conforms to the principles of universal and fundamental rights rather than an interpretation which would involve a departure from such rights" (emphasis added). See also G Williams, Human Rights under the Australian Constitution (1999) Ch. 3, and J McConvill and D Smith, "Of War Crimes and Humanitarian Intervention" (2000) 25 Alternative Law Journal 151. Whether the promotion of cooperative federalism must prevail over the promotion of human rights, or vice versa, as Kirby J's overriding constitutional objective remains for his Honour to determine.
[79] For a recent example of Kirby J's application of his approach of shaping the Constitution to secure and promote good government, reconsider his statement in Truth About Motorways (2000) 169 ALR 616 at 653: "Subject to the Constitution, no attempt should be made to import unexpressed restrictions." (emphasis added).
[80] Hughes (2000) 171 ALR 155 at 170 (emphasis added).
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