There is little doubt that the Engineers’ Case

There is small uncertainty that theEngineers’ Case[ 1 ] was a landmark determination in Australian constitutional jurisprudence. It changed the manner the Commonwealth and the States interacted with one another, and overthrew one of the most cardinal philosophies of the Australian Fundamental law: the philosophy of implied unsusceptibilities. This meant that Commonwealth and State powers were able to overlap and, in some instances, the Commonwealth was able to exert powers that were frequently antecedently reserved for the States, and frailty versa. The issue originating out of theEngineers’ Case[ 2 ] was whether a jurisprudence made by the Commonwealth, under its ‘conciliation and arbitration’ power, [ 3 ] was able to empower to creative activity of an award that would adhere the three employers in inquiry, or whether this would necessitate to be exercised by the States. [ 4 ] Previous rules would propose this would fall under State legal power ; nevertheless this landmark instance allowed State and Commonwealth powers to overlap, which was an unprecedented move by the High Court. In mention to this instance and its subsequent influence on Australian constitutional jurisprudence, this brief seeks to:

  • Analyze the implicit in rules of the Australian Constitution, including its history and theory ;
  • Show the being of the philosophies of ‘implied immunities’ and ‘reserved State powers’ , through pre-1920 instance jurisprudence ;
  • Critically measure the impact of theEngineers’ Caseon Australian Constitutional jurisprudence ;
  • Explore the bequest left by theEngineers’ Caseat common jurisprudence ;
  • Assess the High Court’s current attitude to the rules of theEngineers’ Case.

These are all indispensable to truly understand the implicit in rules behind the determination in theEngineers’ Case, [ 5 ] and will let one to derive an accurate feeling of the true influence of the determination.

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The Commonwealth of Australia was formed in 1901, coming into being on the 1stof January of that twelvemonth. This event was the apogee of two decennaries of lobbying and proposals from many cardinal politicians, from both the UK and the assorted settlements. One of the most influential characters of the Federation epoch was Henry Parkes, who was Premier of New South Wales for a clip, and was a cardinal participant in the push for a united state. Alfred Deakin besides played a function in this regard. Two National Australasian Federal Conventions were held in 1891 and 1897-98 severally, to assist pass on the message of federation to the people. [ 6 ] Following these Conventions, a Premier’s Conference was held in 1899 to see theConstitution Billthat would travel before the British Parliament, and shortly after referenda were held in the several settlements to derive the people’s blessing for the new state. Victoria, South Australia, Queensland, Tasmania and New South Wales wholly secured blessing in 1899, nevertheless Western Australia did non go through a successful referendum until 31stJuly 1900, [ 7 ] and the Constitution reflects this in its text, as it was evidently produced before Western Australia gained the blessing of its people. [ 8 ] Queen Victoria assented to theConstitution Act 1900on 9ThursdayJuly 1900 and Australia was officially proclaimed in 1901, [ 9 ] with Edmund Barton installed as the first Prime Minster and Lord Hopetoun as the first Governor-General ( the representative of the British Crown in Australia, and caput of State ) . Australia was now a state, bound by the Commonwealth Constitution that was officially approved by theConstitution Act 1900in British Parliament. The text of the Constitution still exists about virtually untasted from 1901, with merely a little figure of amendments. It is argued that, while the black-letter text of the Constitution remains steady, a figure of Judgess over the old ages have ‘updated’ the significance of the Constitution through common jurisprudence to follow modern values. This is highlighted by McHugh J inTheophanous V Herald and Weekly Times Ltd:

The significance that the Constitution has for the present coevals is non needfully the same significance that it had for the earlier coevalss or those who drafted or enacted the Constitution. [ 10 ]

This is besides farther reflected by Gummow J inMcGinty V Western Australia:

[ T ] he Constitution continues to talk to the present and allows for development of the establishment of authorities by alterations which may non hold been foreseen a century ago. [ 11 ]

The remarks by these two Justices of the High Court illustrate the sum of autonomy Judgess are able to take in construing the Constitution, leting it to stay current to the system of authorities without demand for a textual update. This is particularly relevant to theEngineers’ Case[ 12 ] as it shows, particularly in the early yearss with a deficiency of statute law on the issue, the hard undertaking that Judgess had in construing the Constitution and its implicit in rules, and using it in the spirit it was intended. The legislative powers of the Commonwealth Parliament are drawn from subdivision 51 of the Constitution, and are specified in the 39 numbered paragraphs of that subdivision.

Cases based on the Constitution prior to theEngineer’s Caseexemplify the being of two philosophies: the philosophies of ‘implied unsusceptibility of instrumentalities’ and ‘reserved State powers’ . These play a important function in the context of theEngineers’ Case, [ 13 ] as it was that instance which later overturned these philosophies and changed Australian constitutional jurisprudence. The first philosophy preaches that, given the Australian context has two grades of authorities ( federal and province ) ; each grade of authorities should be immune from the other’s Torahs. [ 14 ] It is said that the ground for this rigorous separation was non because the Constitution said it had to be done, but instead this thought was profoundly rooted in the impression of federalism. [ 15 ] This philosophy was affirmed at common jurisprudence, peculiarly in the instance ofD’Emden V Pedder, which stated:

In sing the several powers of the Commonwealth and of the States it is indispensable to bear in head that each is, within the scope of its authorization, a autonomous State, capable merely to the limitations imposed by the Imperial Connection and to the commissariats of the Constitution, either expressed or needfully implied… [ 16 ]

This was besides re-affirmed inDeakin V Webb, which dealt with the infliction of a State gross revenues revenue enhancement on a Commonwealth employee ( in the yearss before the Commonwealth had control over taxation statute law ) :

State revenue enhancement of federal wages is unfastened so to two expostulations: ( 1 ) It in consequence diminishes the recompense allotted by the Commonwealth to its officers, and so interferes with its bureaus ; and ( 2 ) It interferes with the freedom of action of the Commonwealth in the transportation of its officers from State to State. [ 17 ]

The 2nd philosophy referred to the thought that certain powers were ‘reserved’ to the States, most normally in their traditional countries of law-making. [ 18 ] This was affirmed in the instance ofR V Barger, which limited the Commonwealth’s ability to enforce an ‘excise duty’ under its wide revenue enhancement power in subdivisions 51 and 90 of the Constitution. [ 19 ] This philosophy is besides said to hold evolved farther through a series of opinions by Griffith CJ, such asAttorney-General ( NSW ) V Brewery Employees Union of NSW( 1908 ) 6 CLR 469, and others. [ 20 ]

TheEngineers’ Case[ 21 ] trades, preponderantly, with subdivision 51 ( xxxv ) which gives the Commonwealth Parliament that power to do Torahs sing “conciliation and arbitration for the bar and colony of industrial differences widening beyond the bounds of any one State” . [ 22 ] The legal power of the High Court stems from Chapter III of the Constitution, and one of its primary undertakings is to judge on issues originating from the Constitution and its reading. [ 23 ] Therefore the undertaking before the High Court in theEngineers’ Case[ 24 ] was to determine the nature of the significance of subdivision 51 ( xxxv ) , and whether the Commonwealth was able to enforce a jurisprudence on the States that would modulate the wage of employees, peculiarly Commonwealth employees. This undertaking was one that would specify, either manner, the hereafter of Australia in footings of the saving of State liberty, or their possible succumbing to the ‘higher power’ of the Commonwealth. The importance of this instance was no better illustrated than by the words of McHugh J in his commentary on this instance, which stressed:

TheEngineersinstance, for illustration, by take a firm standing that the Constitution should be interpreted harmonizing to its natural and ordinary significance and without resort to the philosophy of implied prohibitions or the unsusceptibility of State instrumentalities strengthened the powers of the Commonwealth and altered the nature of the Australian federation. [ 25 ]

This demonstrates that this instance was rather influential, in footings of specifying how the Constitution should be read, interpreted and applied. Harmonizing to this statement by His Honour, the Constitution being read in conformity with its “natural and ordinary meaning” [ 26 ] lead to the beginning of the Commonwealth’s high quality over the States, in the sense it was able to pass on peculiar issues that would overturn the States’ old legal power on reserved issues. The determination handed down in the instance can outdo be summarised by the undermentioned citation:

The more determinations are examined, and compared with each other and the Constitution itself, the more apparent it becomes that no clear rule can account for them. They are sometimes at discrepancy with the natural significance of the text of the Constitution ; some are unreconcilable with others, and some are separately rested on grounds non founded on the words of the Constitution or on any recognized rule of the common jurisprudence underlying the uttered footings of the Constitution, but on deduction drawn from what is called the rule of “necessity, ” that being itself ascribable to no more definite criterion than the personal sentiment of the Judge who declares it. [ 27 ]

Therefore, the Justices in theEngineers’ Case[ 28 ] saw it allow to mention to the field text of the Constitution, in the context of its “ordinary meaning” , [ 29 ] in order to infer the appropriate decision for this instance. As antecedently mentioned, a figure of Constitutional philosophies were in topographic point that allowed the States protection from Commonwealth intervention on certain issues. Harmonizing to the High Court in theEngineers’ Case, the text of the Constitution did non afford such protection to the States, and felt it was the Court’s responsibility to continue the original purpose of the Constitution by turn overing old determinations that enforced these similar rules. [ 30 ] The Court to boot held that:

…Sec 51 ( XXXV ) [ of the Constitution ] is in footings so general that it extends to all industrial differences in fact widening beyond the bounds of any one State, no exclusion being expressed as to industrial differences in which States are concerned ; but capable to any particular proviso reverse elsewhere in the Constitution. [ 31 ]

The Court, hence, decided that as there was no other valid proviso in the Constitution that limited the legal power of the Commonwealth on industrial differences, so the Commonwealth should be allowed to interfere where it is believed the industrial difference rises above the capablenesss of anyoneState. The High Court efficaciously held that the Constitution should be read expressly how it was written, and that philosophies that have no mention to this regulation will hold no lawfully adhering consequence, as was found with the ‘implied immunities’ and ‘reserved State powers’ philosophies. The High tribunal has made regulation a opinion at common jurisprudence, that the Constitution should be read in the undermentioned mode, in order to correctly interpret and use its true significance:

The one clear line of judicial enquiry as to the significance of the Constitution must be to read it of course in the visible radiation of the fortunes in which it was made, with cognition of the combined cloth of common jurisprudence, and the legislative act jurisprudence which preceded it, and solucet ipsa per Se[ place the field significance of the express text at the clip it was made ] … [ 32 ]

The intrenchment of this regulation for reading the express text of the Constitution in natural footings has led to uproar amongst the Australian legal community, and later has non allowed the Australian legal system to accommodate to modern-day times in this sense, as has been allowed in other countries through the execution of common jurisprudence philosophies. As has been discussed, this determination efficaciously segregated the Commonwealth system from the States, and created the visual aspect of a hierarchy system of authorities, instead than the two grades working in coaction with one another. This brief will now seek to research subsequent reactions at common jurisprudence to theEngineers’ Case. [ 33 ]

The impact of theEngineers’ Casewas considered by Windeyer J in thePayroll Tax Case, where it was believed that:

… [ T ] he place of the Commonwealth, the federal authorities, has waxed ; and that of the States has waned… And this legal domination has been reinforced in fact by fiscal laterality. That the Commonwealth would, as clip went on, enter increasingly, straight or indirectly, into Fieldss that had once been occupied by the States, was from an early day of the month seen as likely to happen. This was greatly aided after the determination in theEngineers’ Case, which diverted the flow of constitutional jurisprudence into new channels. [ 34 ]

This instance further emphasises the impression that the divide between Federal and State authoritiess has widened in times continuing the determination in theEngineers’ Case. It has been said that the instance has left a permanent feeling on Australian constitutional jurisprudence. It provided non merely a new method for reading the Constitution, but exploded any rights the States had to exerting powers free from influence of the Commonwealth. There is grounds, nevertheless, of the High Court trying to continue the philosophies of ‘implied immunities’ and ‘reserved State powers’ . This is allegedly apparent in the judgements of Sir Owen Dixon during the 1930s, and exists all the manner up until the sixtiess, where Commonwealth unsusceptibility from State Torahs officially ended. [ 35 ] It is besides said that the justifications used by Sir Owen Dixon were “unsatisfactory” , and that his concluding basically revived the implied unsusceptibility of instrumentalities. [ 36 ] This demonstrates that, in the decennaries after the determination in theEngineers’ Case, [ 37 ] there was a reluctance of the tribunals to return to the antecedently bing philosophies, nevertheless the statements of the tribunals were thin in substance, which sparked a gradual return towards “pre-Engineers’” times. There have besides been legislative efforts to assail the unsusceptibility given to the Commonwealth, such as the Judiciary Act, which reads:

In any suit to which the Commonwealth or a State is a party, the rights of parties shall every bit about as possible be the same, and judgement may be given and costs awarded on either side, as in a suit between capable and capable. [ 38 ]

This proviso was used in determinations throughout the 1970s and 1980s, in an effort to call off out the unsusceptibility that the Commonwealth was afforded from State Torahs. This unsusceptibility was disproved in the instance ofPirrie V McFarlane, where it was held that a member of the Air Force was able to be prosecuted under province Torahs for neglecting to drive with a driver’s licence. [ 39 ] However, this was besides the lone instance in a “post-Engineers” High Court refering Commonwealth unsusceptibility that Sir Owen Dixon did non sit on. [ 40 ] Dixon was able to convert the High Court to bit by bit return to the impression that protected the Commonwealth from certain State Torahs, and frailty versa. This was accomplished in a figure of instances, such asAustralian Railways Union V Victorian Railways Commissioners, [ 41 ]West V Commissioner of Taxation ( NSW ), [ 42 ] andFederal Commissioner of Taxation v E O Farley Ltd. [ 43 ] These instances approved ( albeit impliedly ) the pre-Engineers philosophies of protection of assorted State legislative rights and unsusceptibilities, and afforded the same protection to the Commonwealth on assorted specific issues. Dixon J besides dissented in the instance ofUther v Federal Commissioner of Taxation, [ 44 ] which was another effort to rock the bulk of the tribunal to accept the unsusceptibility philosophy. The bulk of the Court was eventually swayed in the instance ofCigamatic Pty Ltd ( in liq ) V Commonwealth, [ 45 ] where the High Court accepted the being of the unsusceptibility philosophy, at sought to protect this philosophy at common jurisprudence one time more.

In decision, there is grounds that the High Court has sought to return back to philosophies that were in topographic point before the landmark determination in theEngineers’ Case. [ 46 ] The philosophies of ‘implied immunities’ and ‘reserved State powers’ were antecedently steadfastly entrenched in common jurisprudence, but were later exploded by theEngineers’determination. However, it is clear that Sir Owen Dixon was working to reconstruct these philosophies in subsequent posings of the High Court, in instances affecting Commonwealth unsusceptibility from State Torahs. There was a reluctance of the Court to accept this reversion at first, nevertheless, 43 old ages after the determination in theEngineers’ Case, the philosophies were later recognised and restored in theCigamaticinstance. [ 47 ] This reversion has meant that one grade of authorities can non pass the other out of influence in their relevant legal powers, and enhances the ability of the two grades of authorities to work hand in glove with one another. This besides enhances other elements of the Constitution, including the implied impressions of representative democracy and responsible authorities, maximizing the productiveness of the two-tier authorities system.



  • Blackshield, T, and Williams, G,Australian Constitutional Law and Theory( 3rderectile dysfunction, 2002 ) , Sydney: Federation Press
  • Lindsay, K,Federal Constitutional Law( 2002 ) Sydney: Lawbook Company

Journal Articles

  • McHugh, M, ‘The Strength of the Weakest Arm’ ( 2004 )Australian Bar Review21
  • Mescher, I, ‘Wither Commonwealth Immunity? ’ ( 1998 )Australian Bar Review1


  • Australian Fundamental law
  • Judiciary Act 1903( Cth )


  • Amalgamate Society of Engineers v Adelaide Steamship Co Ltd ( Engineers’ Case )( 1920 ) 28 CLR 129
  • Australian Railways Union V Victorian Railways Commissioners( 1930 ) 44 CLR 319
  • Cigamatic Pty Ltd ( in liq ) V Commonwealth( 1962 ) 108 CLR 372
  • D’Emden V Pedder( 1904 ) 1 CLR 91
  • Deakin V Webb( 1904 ) 1 CLR 585
  • Federal Commissioner of Taxation v E O Farley Ltd( 1940 ) 63 CLR 278
  • McGinty V Western Australia( 1996 ) 134 ALR 289
  • Pirrie V McFarlane( 1925 ) 36 CLR 170
  • R V Barger( 1908 ) 6 CLR 41
  • Theophanous V Herald and Weekly Times Ltd( 1994 ) 182 CLR 104
  • Uther v Federal Commissioner of Taxation( 1947 ) 74 CLR 1
  • Victoria V Commonwealth ( Payroll Tax Case )( 1971 ) 122 CLR 353
  • West V Commissioner of Taxation ( NSW )( 1937 ) 56 CLR 657



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