mr justice evatt and the constitution

MR JUSTICE EVATT AND THE CONSTITUTION

By LESLIE ZINES*

In a recent work dealing with Dr Evatt, the politician, he is describedin the title as an "enigma".1 Perhaps there is some enigmatic quality inEvatt, the High Court judge and constitutional lawyer. In the ten yearshe was on the High Court (1930-1940) a number of dominant themescan be detected in his judgments on constitutional law which at firstsight seem to be not fully consistent with each other. In many cases theyshow a concern to prevent the undermining of State executive and legislative authority and a tendency to restrict Commonwealth power. Inother cases, his judgments propound a rather broad interpretation ofCommonwealth powers.

Dr Evatt became a High Court judge at the conclusion of a decadewhich saw the enhancement of Commonwealth power and the dwindlingof State power as a result of judicial interpretation. During this periodthe new doctrines formulated by the Court were largely the result of thedominating influence of that arch-nationalist, Sir Isaac Isaacs.

The growth of Commonwealth constitutional authority was achievedin a number of ways. The most important of all decisions which contributed to this result was, of course, the Engineers' case.2 The earlierCourt had taken the view that the Constitution had impliedly granted tothe States general legislative power over local matters. Therefore, anyCommonwealth power which appeared to impinge on this area was anexception to the general rule and had to be construed "strictly", that is,restrictively.3 The Engineers' case purported to sweep away this doctrineof implied State power. Further, the Court held as a general rule thatthe States were proper subjects for the exercise of Commonwealthlegislative power provided that the law could otherwise be properlycharacterized as one with respect to one of the heads of Commonwealthpower. No longer could a law be invalidated merely on the ground thatit burdened or hindered a State in the exercise of its governmentalfunctions.

It seemed to be a corollary of the overthrow of the doctrine of theimmunity of instrumentalities that the State could apply its laws to theCommonwealth and its agents and that the Commonwealth could notclaim that the State law was invalid merely because it affected orburdened the Commonwealth's governmental functions. The old

* LL.B. (Syd.), LL.M. (Harv.), Barrister-at-Iaw (N.S.W.), Professor of Law, Schoolof General Studies, Australian National University.

1 Dalziel, Evatt the Enigma (1967).2 (1920) 28 C.L.R. 129.3 Attorney-General for New South Wales v. The Brewery Employees' Union (1908)

6 C.L.R. 469; The King and the Minister of State for the Commonwealth v. Barger(1908) 6 C.L.R. 41.

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154 Federal Law Review [VOLUME 3

doctrine of the immunity of instrumentalities was after all one ofreciprocal protection.

In Pirrie v. McFarlane4 however the Court suggested that the Commonwealth could by legislative action give itself, its servants, agents andinstrumentalities much of the protection from State law that theypreviously had as a result of the application of the discarded constitutionalimplications. Such Commonwealth Acts would, by virtue of section 109,prevail over inconsistent State laws.5 The result of section 109 was thatthe States were powerless to provide for similar immunity on behalf ofthemselves or their agents against Commonwealth power. Whereas theold principle had been one of mutual sovereignty, the new doctrineemphasized Commonwealth supremacy.

The Commonwealth's position was thus strengthened by the Courtrejecting, in interpreting the Constitution, the use of implications basedupon notions of federalism. In another field of interpretation, however,it seemed that some judges would readily resort to implications for thepurpose of invalidating State law. In Clyde Engineering CompanyLimited v. Cowburn,6 Isaacs J. expounded the "covering the field"doctrine, although it was not strictly necessary to do so in order toreach the decision that he did in that case. This principle had been givenits clearest exposition by Dixon J. in Ex parte McLean7 immediatelybefore Dr Evatt joined the High Court. His Honour there pointed outthat where the Commonwealth Parliament showed an intention tocover the subject matter:

the inconsistency does not lie in the mere coexistence of two lawswhich are susceptible of simultaneous obedience. It depends uponthe intention of the paramount Legislature to express by itsenactment, completely, exhaustively, or exclusively, what shall be thelaw governing the particular conduct or matter to which its attentionis directed. When a Federal statute discloses such an intention, itis inconsistent with it for the law of a State to govern the sameconduct or matter. 8

By the time Dr Evatt came on to the bench this doctrine was notdeveloped, but its potential as a means of destroying concurrent Statepower was clear. While the cases have been primarily concerned withwhether there was an implied intention to cover a particular legislativearea, it would seem to follow that a Commonwealth Act could expresslyinvalidate State laws dealing with a particular social problem within

4 (1925) 36 C.L.R. 170. It was held that a member of the Air Force driving in thecourse of his duty was subject to State traffic regulations in the absence of a Commonwealth law to the!contrary.

5 Ibid. 183.6 (1926) 37 C.L.R. 466.7 (1930) 43 C.L.R. 472.8 Ibid. 483.

1969] Mr Justice Evatt and the Constitution 155

Commonwealth power, even though the Commonwealth had not itselfmade legislative provision on the particular matter. It may be that theCommonwealth had to formulate some rules in the general area inaddition to providing for the expulsion of State law, but for a Commonwealth government bent on converting all its powers into exclusivepowers, the covering the field test made the task easier-to what degreedepended on how the Court would apply the test.

Nevertheless the principles in the Engineers' case, Pirrie v. McFarlaneand Ex parte McLean did not destroy State legislation or hamper Stateaction in the absence of Commonwealth exertion of authority. Theeffect of McArthur's case9 was different. The Court there used section 92to convert the Commonwealth's power over interstate commerce, sofar as possible, into an exclusive power of the Commonwealth; so thatthe effect was to invalidate many State laws in that area even in theabsence of Commonwealth legislation. In turn the Commonwealth wasto be absolutely free of any restrictions arising from section 92.

Most of the principles and doctrines dealt with above, in so far as theyacted to destroy or to threaten the effectiveness of State authority, wereanathema to Mr Justice Evatt. He disapproved of the generally acceptedview of the Engineers' case that the Court could not, in interpretingCommonwealth power, have regard to the implication that the Constitution presupposed the preservation of the existence and vitality ofthe States. He rejected the suggestion in Pirrie v. McFarlane of a powerin the Commonwealth to protect its instrumentalities from the effort ofState legislation. He fought strongly against a wide application of thecovering the field test. He regarded McArthur's case as wrong, wasprepared to increase greatly the power of the State to affect interstatetrade and was convinced that the Commonwealth was also limited bysection 92.

For those who study the High Court purely in terms of nationalismversus States' rights, these views of Evatt J. might seem to put him inthe States' rights camp. Others who attempt to label the judges as conservatives and radicals might feel that his concern for the States placeshim in the former category. Have not the conservative parties been, atleast verbally, supporters of the federal system and did not the AustralianLabour Party adopt unification as one of its main planks in 1918 ? Ithas been said that many Labour supporters were surprised and disappointed at Evatt's performance on the bench.10

Yet Evatt J. is not of course so easily categorized in these terms. He;consistently supported a broad construction of the arbitration power;he gave the external affairs power its most expansive interpretation-

9 (1920) 28 C.L.R. 530.to Sawer, Australian Federalism in the Courts (1968) 67.


one which some people feel would provide an easy means for the Commonwealth to increase greatly its legislative power; he liberally construedthe postal power to cover control of broadcasting and referred to thepossibility of the Commonwealth controlling some areas of intrastatetrade as incidental to its commerce power.

From the point of view of both the constitutional lawyer and thepolitical scientist, Mr Justice Evatt's general outlook may indeed seemobscure, inconsistent and "enigmatic". For the constitutional lawyer,however, this is so only if we adopt the approach, long accepted byteachers of, and commentators on, the Constitution, of viewing thedevelopment of constitutional interpretation as a struggle betweenor balance of, centripetal and centrifugal forces. Evatt J. himselfexpressed disapproval of this way of looking at things. 11 To the politicalscientist it is suggested that his Honour's stand on many constitutionalissues shows that it is possible to support "States' rights" for reasonsthat are anything but conservative in the social, economic or politicalsense.

It is proposed in this article to examine some of the major constitutional cases in which Evatt J. participated; but I shall not discuss indetail his consideration of section 92 except in so far as it throws light onmore general issues.

RESTRICTIVE INTERPRETATION OF COMMONWEALTH POWERS

Whether a particular judge is regarded as taking a "broad" or"narrow" view of the Commonwealth power is, of course, a matter bothof degree and comparison. On any basis, h wever, there were manyareas in which Evatt J. took a limited view of ommonwealth authority.In the cases to be considered he seemed prep red to restrict the powerof the Commonwealth to a greater degree th n most of his colleagues.He adopted this stand for different reasons ·n different cases. Sometimes it was a concern for State legislative nd executive power thatcaused him to apply a restrictive construction; on other occasions itwas because he was anxious to prevent the undermining of specificconstitutional limitations on Commonwealth power; at other times hewas motivated by a concern for civil liberties or the independence ofthe judiciary.

(a) Restrictive approach for "federal" reasons

Evatt J. was strongly of the belief that servants and agents of, andcontractors with, the Commonwealth could not be put in a privilegedposition, vis a vis other residents of States in which they lived, by

11 H. V. Evatt, "Constitutional Interpretation in Australia" (1939) 3 Universityof Toronto Law Journal 1, 22: "I have endeavoured to show, I hope with completeobjectivity, that there is neither a tendency toward, nor yet away from, Commonwealth supremacy over the States. The Constitution itself stands."


Commonwealth legislation purporting to immunize them from Statetaxation or other laws. He expounded this view at length in West v.The Commissioner of Taxation (N.S. W.) .12

The actual decision in that case was that a superannuation pensionpaid under Commonwealth law was taxable under the New South Walesincome tax legislation. In coming to that decision some of the judges(Rich, McTiernan and Dixon JJ.) preferred to rely on the fact that theCommonwealth legislation itself treated the pension as potentiallysubject to taxation by a State. The Financial Emergency Acts 1931 (Cth)enabled the Governor-General, by regulation, to prescribe the maximumamount of tax to which salaries and pensions paid by the Commonwealth might be subject under the general income tax laws of the Statesor under special laws imposing tax upon income. No limit had in factbeen prescribed for the taxation of pensions. Latham C.J. and Starke J.expressed the opinion that, in the absence of provisions to the contrary,a Commonwealth law prescribing a salary or pension was not inconsistent with a State Act taxing that salary or pension. In all the judgments in that case, except that of Evatt J., it was expressly stated ornecessarily assumed that the Commonwealth could validly legislate tomake its servants immune from State taxation in respect of emolumentsreceived from the Commonwealth.

This decision was in line with the remarks in Pirrie v. McFarlanealready referred to and the decision in The Commonwealth v. Queensland13

where the Court upheld the validity of Commonwealth legislation whichprovided that the interest from Commonwealth securities should not beliable to income tax under Commonwealth or State law.

Evatt J. attacked this notion. He referred to The Commonwealth v.Queensland as having stretched Commonwealth legislative power "atleast up to the limits of constitutional elasticity" .14 He could not seehow it was incidental to the Commonwealth's borrowing power forthe Commonwealth to be generous to its lenders "not at its own expensebut at that of the States."15 His Honour saw this problem as one ofmutuality. He could find nothing in the Constitution which suggestedthat the Commonwealth was in any more powerful position than aState would be to grant its officers or ex-officers immunity fromComn10nwealth taxation.16 He objected to talk of Commonwealth"supremacy" in relation to section 109:

"Supremacy" was the new euphemism for the less ambiguous wordsemployed in sec. 109 itself in order to resolve actual conflictsbetween valid Commonwealth and valid State legislation.17

12 (1937) 56 C.L.R. 657.13 (1920) 29 C.L.R. 1.14 (1937) 56 C.L.R. 657, 686.15 Ibid. 705.16 Ibid. 685.17 Ibid. 699.


However, the question of the power of the Commonwealth to negativein whole or in part State laws involved, as Evatt J. saw it, more than theissue of mutuality. Pirrie v. McFarlane, looked at in one light, raised asimilar issue to that in West's case, namely the insulation of Commonwealth officers and agencies from State law. But when Evatt J. disagreedstrongly with the suggestion that members of the defence forces mightbe made immune from the operation of State traffic legislation, he gavereasons which went beyond the relationship of the two executivegovernments and their agencies. How, he asked, (echoing Higgins J. inPirrie v. McFarlane) could State traffic regulations be effective unlessall traffic were brought within its operation ? The fact that the Commonwealth had no general power over traffic regulations and that Stateregulations could be easily disrupted by the Commonwealth makingspecial rules for its officers was, he thought, relevant to the wholequestion of Commonwealth legislative power. His Honour's approachhere seems to reject the simplified view of the principle in the Engineers'case that, in deciding whether a Commonwealth law is valid, it is simplynecessary to ask whether it has a reasonable connexion with, say, defenceand to be unconcerned with whether it can also be described as a law withrespect to some other subject matter. For Evatt J. the fact that a lawexempting defence personnel from State traffic regulations could also bedescribed as a law with respect to traffic regulation was an importantfactor in construing its validity. In deciding whether a Commonwealthrule was a law with respect to a matter within Commonwealth powerit was relevant to enquire whether the effect of the Commonwealth lawwould be to destroy or seriously hamper State control in an area thatonly the State would effectively regulate as a whole. If the rule did littleto further Commonwealth policy and a great deal to hamper or evendestroy State policy in another area it could for that reason be invalid.It is clear that Evatt J. considered the dicta in Pirrie v. McFarlane to bewrong because a "general exemption in favour of members of the defenceforce might be destructive of any effective regulation of motor traffic".18

The view of Evatt J. is summed up in the following terms:[I]t is quite erroneous to regard the Engineers' case as having established a new· and valid constitutional principle, under which, eitherby direct declaration as to the termination of specified State legislation, or as to the State's legislative power, or by indirectly creatingconditions or qualities under Commonwealth legislation which willachieve the same objectives, the Commonwealth Parliament isenabled, by the exercise of its own legislative power, to rid itselfof any State legislative "interference" or "impediment". This constitutional principle or doctrine is a dangerous feature of theEngineers' Case, and any proposed application of it should be mostcarefully watched.19

18 Ibid. 708.19 Ibid. 701-702.


This approach, of regarding as relevant the impact of a proposedCommonwealth law upon fields within State control, was also adoptedby him in relation to cases where the primary question raised was thatof inconsistency. While these issues involve matters of constructionrather than constitutional power, Evatt J. sometimes suggested that, ifhe had found inconsistency in the sense of an intention by the Commonwealth to cover the field and to exclude State law, the Commonwealthlaw would have been invalid.

Stock Motor Ploughs Ltd v. Forsyth20 raised the question whetherthere was inconsistency between the Bills of Exchange Act 1909-1912(Cth) and the Moratorium Act 1930-1931 (N.S.W.). Section 43 of theBills of Exchange Act provided that a holder, under his rights and powersas a holder of a bill, "may sue on the bill in his own name". By theMoratorium Act the leave of the Court had to be obtained before makinga demand for, or commencing proceedings for, the recovery of anyinstalment under a hire purchase agreement. The State Act was regardedby all the judges of the Court as applicable to an action by the ownerof goods against the hirer on a promissory note given as collateralsecurity for an instalment payable under a hire purchase agreement.It was held that the Moratorium Act was not inconsistent with the Billsof Exchange Act. Evatt J. was among the majority and Dixon J.dissented. In his judgment, Evatt J. illustrated his general method ofbalancing the interests involved in Commonwealth and State legislativespheres of action in determining both questions of inconsistency andquestions of characterization of Commonwealth law. The Commonwealth had no power to pass general laws relating to contracts or hirepurchase agreements or to legislate in the manner of the MoratoriumAct. Yet, if the Commonwealth legislated to enable the payee of apromissory note to bring an action against the maker despite anypersonal defences or legislation such as that of the Moratorium Act,the State legislation would be utterly defeated because all hire purchasebusinesses would use the device of the promissory note.

This might be good reason, as most of the Court found, for notfinding any "intention" in the Commonwealth legislature to overridesuch legislation, but Evatt J. raised the further issue of constitutionalpower. He said:

Now it is conceivable that the Federal legislature might have passeda law upon the subject of promissory notes, so that, when an instrument answering the described form came into existence, any actionupon the note by the payee against the maker should not be defeatedor restrained because of any personal relationship between thoseparties. In that event, the question would have arisen whether thelaw was a "properly framed" law with respect to the subject matterof "bills of exchange and promissory notes".21

20 (1932) 48 C.L.R. 128.21 Ibid. 143.


What seems to have concerned his Honour was that, if the Commonwealth could validly pass such a law, its effect would be totally or substantially to destroy State legislation in a field in which the Commonwealth itself had no competence.

Opposition on the part of Evatt J. to the Commonwealth law thwartingState policy without furthering to any great extent matters withinCommonwealth control was indicated also in Victoria v. The Commonwealth.22 In that case, the High Court held unanimously that the MarineAct 1928 (Vic.) providing for the removal of wrecks in any port withinVictoria was not inconsistent with section 329 of the Navigation Act1912-1935 (Cth) which made a similar provision with respect to theremoval, at the instance of Commonwealth authority, of any ship sunkon or near the coast of Australia. Evatt J. expressed the opinion thatif the Commonwealth enactment sought to make the Commonwealththe final authority to determine whether the obstruction should beremoved the enactment would not be one in relation to interstatecommerce because it would be attempting to confer upon the Commonwealth the general power to exclude the State from exercising its concurrent jurisdiction over the same subject matter.23 The position of thewreck might be such that authority to remove it might validly be conferred under section 51 (i) of the Constitution, but it may be of moreconcern to local trade. His Honour would not in effect countenance aposition where the Commonwealth could refuse to remove the wreckand prevent the State from doing so.

For similar reasons Evatt J. saw great dangers in the covering thefield test itself. He referred to it as "little more than a cliche"24 and a"hackneyed expression".25 Nevertheless he did not reject it outright asa test of inconsistency under section 109. Typically, he thought it ofmore use in connexion with some types of powers and social problemsthan others. The Commonwealth could not pass a law under a powerrelating to a wide variety of social circumstances, such as the commercepower or the aliens power, and by express declaration or necessaryimplication keep all State laws out of that area. However, the subjectmatter of the Commonwealth law may involve such a delicate (forexample, industrial relations) or detailed (for example, bankruptcy,patents and trademarks) adjustment of interests that any intrusion ofState law would upset the balance or scheme of the Commonwealthlegislation.26

22 (1937) 58 C.L.R. 618.23 Ibid. 637.24 Stock Motor Ploughs Ltd v. Forsyth (1932) 48 C.L.R. 128, 147.2S West v. The Commissioner o/Taxation (N.S.W.) (1937) 56 C.L.R. 657, 690.26 Victoria v. The Commonwealth (1937) 58 C.L.R. 618, 638.


Mr Justice Evatt's thesis in the above cases involved two aspectswhich, from a policy viewpoint, are rather different, but, in respect oflegal analysis, are connected. So far as the first aspect is concerned,he laid down the principle that the Commonwealth Parliament hasnot, generally speaking, power to make its officers, instrumentalities orcontractors immune from general State laws. The reason for this wasthe concept of federalism and the notion of mutuality.

The second aspect related to the Commonwealth deliberately oraccidentally vetoing State legislative policy in areas where the Commonwealth either had no general power or where, possessing power, it hadnot legislated to deal with the matter. To prevent this, Evatt J. was notonly highly cautious about the application of the covering the fielddoctrine, but was prepared to limit Commonwealth power in manycases so as to prevent the Commonwealth trying to cover the field.But his concern was not so much to prevent the Commonwealth fromlegislating to deal with a social problem. It is suggested that he wasnot showing a preference for the State as against the Commonwealth:his preference was in favour of legislative action. If the Commonwealth could deal with a social issue by legislative action let it do so,but it could not pursue a policy of laissez faire by nullifying Stateregulation. Also, if the Commonwealth did not have power to deal withthe whole subject matter, care must be taken to ensure that Commonwealth powers were not interpreted so as to frustrate or destroy theState's authority to regulate the situation.

The principle involved in the first aspect of the thesis of Evatt J. hasnot been followed. In Australian Coastal Shipping Commission v.O'ReillY,27 the High Court upheld the validity of section 36 (1) of theAustralian Coastal Shipping Commission Act 1956 (Cth) which providedthat the Commission, subject to certain exceptions, was subject totaxation under the laws of the Commonwealth but was not subject totaxation under the laws of a State or Territory.

Dixon C.J. saw the connexion between the particular issue involved,namely the power of the Commonwealth to exclude State law in respectof one of its agencies, and the covering the field doctrine. He said:

Surely, consistency with that doctrine demands that a legislativepower, such as that given by s. 51 (i) together with s. 98, mustextend to a direct enactment which expressly excludes the operationof State law provided the enactment is within the subject matterof the federal power.28

A number of the judges seemed to be concerned about the consequences of their decision. What worried them was rather similar to

27 (1962) 107 C.L.R. 46.28 Ibid. 56..57.


those matters which concerned Mr Justice Evatt. Indeed, Owen J.expressly stated that he was greatly troubled and that the considerationswhich caused him to doubt the validity of the Commonwealth provisionwere in substance those which lead EvattlJ. in West's case to his conclusion.29 Menzies J. said that he had Inot followed the "powerfulreasoning" of Evatt J. in West's case bec~use he considered the weightof authority to be against Evatt's viewsJ30 Windeyer J. regarded thecase as not "free from difficulty, because of one's inclination to lookbeyond it toward the distant scene".31 Dixon C.J. (with whom Kitto,Taylor and Owen JJ. agreed) was careful to point out that the caseinvolved a government shipping line which he said meant:

a corporate agency of the Crown in right of the Commonwealthhaving for its purpose the carrying on of shipping services underthe legislative control of the Parliament for the public advantageand not for private profit and subject only to ministerial directionsgiven in pursuance of the statute.32

He went on to say that the corporation was established for the purposesof the Crown in the right of the Commonwealth and that no privateinterests were involved.

The more difficult question of course is the extent to which the Commonwealth can exclude private interstate or overseas traders, bankers,insurance companies and other persons, over whose activities it haspower, from State taxation or other State laws. Menzies J. was forcedto go into this question because he took the view that, as the Commission was not entitled to the shield of the Crown, the Commonwealth had no more power to exempt the Commission than it did aprivate person. Menzies J. considered that every law which gave thetrader an advantage even in respect of trade was not necessarily a lawwith respect to trade. He thought that the Commonwealth could not,for example, exempt interstate traders from paying State income tax.

Menzies J. nevertheless accepted the decision in The Commonwealthv. Queensland and the majority judgments in West's case on the basisthat, where Commonwealth legislation authorizes the payment of moneyby the Commonwealth or the giving of property by the Commonwealth,it is within Commonwealth power to ensure that the receipt of the payment or the property is not subject to State taxation. This however wasnot the problem in the immediate case. His Honour concluded that theCommonwealth could exempt persons engaged in activities that camewithin Commonwealth power from paying State taxes on those activities.So the Commonwealth could exempt an interstate trader from paying

29 Ibid. 71.30 Ibid. 63.31 Ibid. 69.32 Ibid. 54.


taxes on trade. His Honour thus limited the exemption in section 36 toexemption from tax on the receipts in question which were given bythe Commission in the course of the trade which it was constituted byCommonwealth legislation to carryon.

The other judges did not go into this question. The emphasis placedby Dixon C.J. on the public character of the corporation leaves opensome of the issues raised by Evatt J., including the extent to whichpersons engaged in private activities within Commonwealth power maybe exempted from State taxes and other State laws.33

(b) Limitations on Commonwealth power

Mr Justice Evatt gave quite an expansive interpretation to many ofthe limitations upon Commonwealth power. In this respect he andSir Owen Dixon often took a similar line in dissenting judgments. Itis clear that neither would have reduced section 8034 of the Constitutionto a mere procedural requirement. In The King v. The Federal Court ofBankruptcy; Ex parte Lowenstein,35 they described the result of Rex v.Archdall and Roskruge36 as:

a queer intention to ascribe to a constitution; for it supposes thatthe concern of the framers of the provision was not to ensure thatno one should be held guilty of a serious offence against the lawsof the Commonwealth except by the verdict of a jury, but to preventa procedural solecism, namely, the use of an indictment in caseswhere the legislature might think fit to authorize the court itself topass upon the guilt or innocence of the prisoner. There is highauthority for the proposition that "the Constitution is not to bemocked". A cynic might, perhaps, suggest the possibility that sec.80 was drafted in mockery; that its language was carefully chosenso that the guarantee it appeared on the surface to give should be intruth illusory.37

33 By the Financial Emergency (State Legislation) Act 1932 (Cth), the Common..wealth purported to nullify certain State taxes on mortgages and other capital levies.The Act was passed in anticipation of the governor's assent being given to a NewSouth Wales Bill imposing a tax on mortgages at the rate of ten per cent of the amountsecured. The bill never received the Royal Assent as the New South Wales Premier,Mr Lang, was dismissed from office. The long title of the Commonwealth Act referredto the Commonwealth's powers in respect of taxation, insurance, banking and cor..porations. Sir Robert Garran in The Case for Union admitted that reliance on thetaxation power was "a forlorn hope". In The King and his Dominion Governors (2nded. 1967) 161-162, Dr Evatt wrote: "Had the validity of the Act been tested, the casewould have raised the interesting question whether a law purporting to exempt Banks,Insurance Companies, Trading Corporations, and private individuals from Statelaws imposing taxation is, in truth and in fact, a law with respect to Banking, Insurance,or Taxation."

34 "80. Trial on indictment of any offence against any law of the Commonwealth shall be by jury, and every such trial shall be held in the State where the offencewas committed, and if the offence was not committed within any State the trial shallbe held at such place or places as the Parliament prescribes."

3S (1938) 59 C.L.R. 556.36 (1928) 41 C.L.R. 128. It was held that if the Commonwealth law provided for the

trial to be otherwise than by indictment s. 80 was inapplicable.37 (1938) 59 C.L.R. 556, 581-582.


Their Honours then went on to describe what was the essence of a "trialupon indictment".

However, it is in relation to the requirement against discriminationin section 51 (ii) and preference in section 9938 that Evatt J. illustratedhis technique in these matters. Dixon and Evatt JJ. were also often inagreement on these questions but Evatt J. displayed greater boldnessin looking at the social situation and a greater willingness to examinepolitical, economic and other social documents and material. WhereasSir Owen Dixon often saw limitations to the scope of judicial enquiryand judicial remedies, Evatt J. had almost unlimited faith in the effectiveness of judicial action and was anxious to enlarge the area of admissibleevidence and judicial notice in constitutional cases.

In The King and the Minister of State for the Commonwealth v. Barger,39Isaacs J., in a dissenting judgment, stated that the treatment that wasforbidden in section 51 (ii) and section 99 was in relation to localitiesconsidered as parts of States and not as mere Australian localities orparts of the Commonwealth considered as a single country. LathamC.J. in Elliott v. The Commonwealth40 accepted this view and consideredthat if a preference were given to, say, any ports specified by the ministerand the minister specified, say, Sydney and Melbourne, the preferencewould be given to those areas as ports and not as parts of States andtherefore would escape the prohibition in section 99.

Both Dixon and Evatt JJ. strongly disagreed with this notion.Evatt J. said that he found the Isaacs' theory "extremely difficult tounderstand or apply".41 Dixon C.J. has used similar language.42

Certainly the opinions of Isaacs J. and Latham C.J. reduced theconstitutional prohibitions to mere formalism, requiring only the careand skill of the draftsman to avoid its dangers. Latham C.J. recognizedthat the result of his view would be to make the protection of the sectionsillusory, but he comforted himself with the thought that the oppositeview was open to the same objection. Under that view, he said "theoperation of the section can be excluded by including among theconditions even of avowedly preferential treatment a condition referringto some circumstance other than locality".43

38 Section 51 (ii) confers power on the Commonwealth to make laws with respect to"Taxation; but so as not to discriminate between States or parts of States." Section99 provides: "The Commonwealth shall not, by any law or regulation of trade,commerce, or revenue, give preference to one State or any part thereof over anotherState or any part thereof."

39 (1908) 6 C.L.R. 41.40 (1935) 54 C.L.R. 657.41 Ibid. 686.42 Commissioner of Taxation v. Clyne (1957) 100 C.L.R. 246, 266.43 (1935) 54 C.L.R. 657, 675.

1969] Mr Justice· Evatt and the Constitution 165

The reasoning of Dixon and Evatt JJ. is in line with their·attitude ininterpreting section 80 of the Constitution. Formal analysis andliteralism they regarded as inappropriate to their task of construing theConstitution and this view led both of them to express irritation withthe argument that the Engineers' case required a more literal applicationof the provisions of the Constitution. In this respect they were polesapart from Sir John Latham who, of all the judges, tried most consistently to apply a literal interpretation. Nevertheless it cannot bedoubted that an adoption of the interpretation of sections 51 (ii) and 99which.was advocated by Dixon and Evatt JJ. would not, as Latham C.J.pointed out, act as very much of a check upon Commonwealth power;although, as the legislation in Clyne's case44 shows, the drafting wouldhave to be rather more complicated.

It is in relation to the area of social enquiry open to the judge and theextent to which he can receive evidence of governmental intentions andactions that we see the greatest contrast between the methods of LathamC.J. and those of Evatt J. In Deputy Federal Commissioner of Taxation(N.S. W.) v. W. R. Moran Pty Ltd,45 the Court considered the Flour Tax(Wheat Industry Assistance) Assessment Act 1938 (Cth) and the FlourTax (Stocks) Act 1938 (Cth) which were passed to give effect to a schemeagreed upon between the Prime Minister and the Premiers of the States.The object of the scheme was to pay to wheat growers a guaranteedprice. The scheme was to be financed by imposing a tax upon floursold in Australia for home consumption. The Commonwealth imposedthe tax on the millers who, of course, passed it on to the consumers.Out of the tax received, the Commonwealth, under section 96 of theConstitution, made grants to the States to be distributed among thewheat growers. Tasmania, however, did not grow sufficient wheat forits own consumption and in fact imported wheat from the other States.As the Commonwealth grants were to be given to the States in proportionto the quantities of wheat produced by them, the result would havebeen that the people of Tasmania would have had to bear the exciseduty and persons within the State would have received little in return.In effect, the people of Tasmania would be paying a subsidy to wheatgrowers in other States. In the case of Tasmania, the CommonwealthAct provided for the payment of an amount to the State of Tasmaniabeing not greater than the amount of excise duty paid on flour in thatState. The Tasmanian Parliament passed an Act which provided thatthe persons who had paid the flour tax to the Commonwealth mightapply to the State for relief and obtain a payment by way of relief inrespect of the flour tax which they had paid. The evidence showedthat in fact ninety per cent of the flour tax paid was repaid under thisAct by Tasmania to the millers.

44 (19~7) 100 C.L.R. 246.

45 (1939) 61 C.L.R. 735.


It was argued that the Commonwealth tax was invalid as being a taxwhich discriminated in favour of Tasmania. It was held by Latham C.J.,Rich, Starke and McTiernan JJ. (Evatt J. dissenting) that the Commonwealth law was not a law with respect to taxation so as to discriminatebetween States. In this case, the Court had little difficulty in looking atthe scheme as a whole because both federal and Tasmanian statutesreferred to the agreement. The reasoning of Latham C.J. was alongthe following lines: the federal taxation legislation did not itself discriminate between States or parts of States; it imposed a uniform excise.The legislation providing for a grant to Tasmania was not a law withrespect to taxation: it was a law appropriating money, not a law forits collection. Appropriation Acts can discriminate. The discriminationin favour of Tasmania really arose from the Tasmanian legislation.Commonwealth legislation provided for payment of money to Tasmania,not to the taxpayer. The limitation in section 51 (ii) is inapplicable toTasmanian legislation.

Sir John Latham's method of approach seems to have been partlymotivated by a concern for the problems of governmental administration and a doubt about the effectiveness of judicial action in manyfields. If the Commonwealth Act here was invalid, the government, hethought, could find a way around the difficulty: "[AJ State Parliamentcould achieve much the same practical result, in some cases by reducingits own taxes".46 In most cases of abuse the remedy must be political,not judicia1.47 His concern for problems of government and his doubtsabout the importance of the policy in section 51 (ii) are indicated in thefollowing passage:

The word "discrimination" is sometimes so used as to imply anelement of injustice. But discrimination may be just or unjust. Awise differentiation based upon relevant circumstances is a necessaryelement in national policy. The remedy for any abuse of the powerconferred by sec. 96 is political and not legal in character.48

To Latham C.J. all evidence tendered as to the intentions of the governments and their actions since the passing of the legislation was irrelevant.Rich and McTiernan JJ. agreed with the Chief Justice and the judgmentof Starke J. was to similar effect.

The main difference between the majority of the Court and Evatt J.was that the former were prepared to give a more technical interpretationto the discrimination and preference provisions. But Evatt J. saw behindthose provisions a policy which he regarded as the duty of the Court to

46 Ibid. 758.47 Ibid. cf. Else-Mitchell (ed.) Essays on the Australian Constitution (2nd ed. 1961)

32.48 (1939) 61 C.L.R. 735, 764.


protect. In order to do so, the judge could not be confined to the fourcorners of the statute in the traditional manner. He could seek evidencefrom government documents and actions.

In considering the question of admissibility of evidence, a fundamental distinction has to be drawn between cases where the courthas no function committed to it except that of interpreting a statute,and· cases where, in accordance with a constitutional charter, thecourt has to determine whether there has been an infringement bythe legislature of some overriding constitutional provision.· .. In the latter case, the court may entirely fail to fulfil its duty ifit restricts itself to the language employed in the Acts which arechallenged as unconstitutional.· . . The issue may be whether legislation which at first sight appearsto conform to constitutional requirements is colourable or disguised. In such cases the court may look behind names, forms andappearances.· . . In principle there is no reason whatever why public announcements of governmental policy, official governmental records andcommunications, and even the records of the proceedings inparliament, including records of debates, must necessarily beexcluded from the field of relevant evidence.49

In order to deal with the question of the validity of the Act, Evatt J.examined the proceedings of Commonwealth-State conferences, telegrams, administrative arrangements and official statements. Contrastthis approach with the statement of Latham C.J. regarding evidencetendered as to the scheme:

Federal and State legislation passed after the conference veryplainly carries out the general scheme which the conference desired.But this circumstance appears to me to be irrelevant. If the statutescarry out the scheme, their validity is determined by what they infact do and the pre-arranged scheme is irrelevant. If the statutesdo not carry out the scheme, their validity is still determined bywhat the statutes in fact do and again the scheme is irrelevant. 50

As is well known, the Privy Council in Moran's case51 tried to get thebest of both worlds. They did not entirely agree with Latham C.J. nordid they entirely agree with Evatt J. Their Lordships, however, upheldthe majority decision.

Like Evatt J., the Privy Council appeared, at the commencement oftheir judgment, to lay emphasis on the purpose of the scheme whichthey saw as inseparable from the substance. They seemed to indicatethat the scheme as a whole should be looked at, not merely because itwas referred to in the preamble to the Commonwealth and State legislation. Their Lordships further agreed with Evatt J. in stating that

49 Ibid. 793-794.50 Ibid. 766.51 (1940) 63 C.L.R. 338.


section 51 (ii) could not be evaded by passing a taxing Act containing nodiscriminatory provisions followed by an appropriation or a tax assessment Act authorizing exemptions, abatements or refunds of taxes totaxpayers in a particular State.52 They then fell back on the argumentof Latham C.J. that the discrimination arose by virtue of the grantunder section 96 and not because of the tax under section 51 (ii).Rather incomprehensibly, they also emphasized that section 96 couldnot be used as a means of undermining the prohibition contained insection 51 (ii) so as to nullify that constitutional safeguard. In this casehowever, they thought that the object of the grant was to prevent unfairness or injustice to Tasmania, "an end which might reasonably beconsidered to be both just and expedient".53 What makes the judgmentall the more incredible is that this object which the Privy Council foundunobjectionable was, as Professor Sawer and others have pointed out,the very thing which sections 51 (ii) and 99 were designed to excludediscrimination on material grounds.54

Certainly for Evatt J. the justice of the scheme was far less obvious.He suggested that a case for differential treatment could be made asmuch in favour of Queensland as Tasmania. He concluded:

In truth there is nothing in the Commonwealth scheme of distributing moneys derived from the flour tax which ensures anyequality of the States even in economic result; to say nothing ofthe extraordinary theory that because (say) New South Wales is agreat wheat-producing State, the large consuming population ofthat State should pay more for their flour and their bread than thesmall wheat-producing States.55

(c) Separation ofpowers: civil liberties

In a number of cases, Evatt J. would have limited Commonwealthlegislative power not for "federal" reasons but because of a concern touphold traditional common law principles relating to the liberty of theindividual and the independence of the judiciary.

His Honour had little regard for the separation of powers as adogmatic doctrine, which he felt could endanger the development of aproper system of administrative law and administrative tribunals.56

He saw that it was not possible to predicate of all governmental actionthat it must be an exercise of legislative, executive or judicial functions,57

52 Ibid. 343.53 Ibid. 350.54 Sawer, Australian Federal Politics and Law 1929-1949 (1963) 12l.55 (1938) 61 C.L.R. 735, 790.56 Evatt, "The Judiciary and Administrative Law in Australia" (1937) 15 Canadian

Bar Review 247.57 Victorian Stevedoring and General Contracting Company Pty Ltd v. Dignan (1931)

46 C.L.R. 73, 115.


and he went along with the statement of Isaacs J. that the separationof powers only applied "to a certain extent" in the Australian Constitution. His Honour considered that this statement had a specialapplication when the question concerned the exercise of legislativefunctions and executive powers. Yet, even in relation to the delegationof legislative power, Evatt and Dixon JJ. are the only judges who seemto have suggested limitations on this power. Evatt J. thought, forexample, that the Commonwealth could not delegate the power to makelaws under a whole head of legislative power. This is an unsatisfactorycriterion and unlikely to cause any difficulty for the Commonwealth.The extent to which he and other judges were in fact prepared to go inthe matter of delegation is well illustrated by Victorian StevedoringCompany Pty Ltd v. Dignan.58 The Court upheld a regulation-makingpower which enabled different governments to pursue diametricallyopposed policies relating to the employment of waterside workers.This power was used by one government to discourage the WatersideWorkers' Federation and by a later government to give preference inemployment to persons who were members of that Federation. Thepower extended to the making of regulations inconsistent with any otherCommonwealth Act except the Acts Interpretation Act 1901-1966 (Cth).In dealing with the limits on the power of delegation, Evatt J. preferredto rely, not on the doctrine of the separation of powers, but on the issueof whether the delegation amounted to a law "with respect to" a headof legislative power. He stated that a purported delegation of power tomake regulations with respect to trade and commerce with othercountries and among the States would not be a law with respect to suchtrade but rather one with respect to legislative power to deal with thatsubject.

Evatt J. seemed prepared to give a great deal of scope to Parliamentto fashion new administrative tribunals to deal with social problems.The limited application which he gave to the separation of powers was,he said extra-judicially:

the result of the modern growth of administrative law, which hashelped to destroy the old cliches and platitudes, and has illustratedthe insuperable difficulty of finding a complete and satisfactory lineof demarcation between the exercise of legislative, administrativeand judicial functions. 59

He was prepared, however, to agree that whatever came within thenotion "the judicial power of the Commonwealth" could be given onlyto courts; but he did not elaborate his ideas as to what was included inthat concept.

58 Ibid.59 Evatt, "The Judiciary and Administrative Law in Australia" (1937) 15 Canadian

Bar Review 247, 256.


It is suggested that Evatt J., like many persons in the 1920's and1930's, saw administrative bodies as the most appropriate vehicles forthe social welfare state and did not wish to see their functions hamperedtoo much by judicial restrictions. But in an age when it was commonto make a clearer distinction between "economic" liberty and "personal"liberty, he readily resorted to the doctrine of the separation of powerswhere the traditional problems of individual freedom were involved.In The King v. The Federal Court of Bankruptcy; Ex parte Lowenstein,60the Court considered the validity of section 217 of the Bankruptcy Act1924-1933 (Cth) which empowered a judge in bankruptcy when makingan order for discharge to charge the bankrupt with offences against theBankruptcy. Act. The effect of the relevant provisions was stated byDixon and ·Evatt JJ. to be as follows:

The enactment in question thus places the court in the position,first, of forming an opinion that there is enough reason to believethe bankrupt guilty to make it proper to put him on his trial, thenof deciding to try him summarily, next of framing and preferringthe charge, of causing the process to be served on its behalf, and ofsecuring his appearance. If he pleads not guilty, the court mustadduce the evidence against him in proof of the charge and, finally,after hearing the evidence for the defence, proceed to considerwhether the accused's guilt has been established. 61

The relevant provisions were held valid by Latham C.J., Rich, Starkeand McTiernan JJ. (Dixon and Evatt JJ. dissenting). Dixon andEvatt JJ. considered that the provisions were invalid as being in contravention of section 80. However, they were also of the view that, independently of section 80, the provisions were invalid. Evatt J. neverwent along with the view finally expounded in the Boilermakers' case62

that, generally speaking, judges could not be given non-judicial functions.He often pointed to the Arbitration Court in order to illustrate thatthis could not be SO.63 Sir Owen Dixon of course took the view that wasfinally expressed in the Boilermakers' case, namely that non-judicialfunctions could not be conferred on a federal court except so far asthey might be incidental to the judicial functions of the court. Despitethese differences of opinion, Dixon and Evatt JJ. were able to give ajoint judgment in Lowenstein's case. They both agreed that where thefunctions which were conferred upon the Court by section 217 of theBankruptcy Act departed from or were at variance with the purpose of themain power, the judicial power vested in the federal judicature.64 "Thejudicial power does not include the promotion, prosecution and proofof criminal charges by a court for its own determination."65

60 (1938) 59 C.L.R. 556.61 Ibid. 580.62 (1957) 95 C.L.R. 529.63 (1931) 46 C.L.R. 116; (1937) 15 Canadian Bar Review 247, 255.64 (1938) 59 C.L.R. 587.65 Ibid. 589.


In the Boilermakers' case in the High Court, Williams J. adopted thissort of approach.66 It was an approach, however, which was rejected bythe Privy Council, who seemed concerned about the fact that it was verydifficult to determine the intended scope of this concept of incompatibility. They preferred the clearer and more definite principle that nonon-judicial functions (unless properly incidental) could be given tofederal courts.67

Evatt J. saw as a threat to personal freedom the concept of "inherentpower" in the Commonwealth to deal with political offences such asadvocating the overthrow of the Constitution. In The King v. Hush,· Exparte Devanny68 he protested against "the growing tendency to assume,without argument or proof, the existence of 'inherent' power in theCommonwealth Parliament". Even assuming that there was inherentpower to deal with attempts to overthrow the Constitution, his Honourinsisted on a close nexus between the conduct made punishable and thissubject matter. Indeed he came very close to applying the "clear andpresent danger" test adopted in the United States in relation to permissible limitations on freedom of speech. In considering whether theCommunist Party could be declared an unlawful organization on theground that it was advocating the overthrow by force and violence ofthe established government, he regarded as important the question ofthe time when the expected violent upheaval in accordance with communist ideology would take place. If the communists, for example, wereof the view that force and threat of force were far distant from the presentor the near future, action to deal with it may be beyond the Commonwealth's power. The criterion he adopted was in the following form:

It may be contended that Part IIA of the Crimes Act seeks to preventthe dissemination of doctrines which advocate, or tend to encourage,the use of force with the immediate object of overturning the Government of the Commonwealth. On the other hand, if that Part of theAct looks further ahead, and proposes to prevent all advocacy ofCommunism as against Capitalism, it may be largely invalid. 69

EXPANSIVE VIEW OF COMMONWEALTH POWERS

In the above cases, the views of Evatt J. were rather restrictive ofCommonwealth authority. In other fields, however, he was prepared togive as broad an interpretation as any other member of the Court toCommonwealth powers and, in the case of the external affairs power,the broadest interpretation it has ever been given.

66 (1956) 94 C.L.R. 254, 299-317.67 The decision in Lowenstein's case was applied and its correctness assumed in

Sachter v. The Attorney-General (1954) 94 C.L.R. 86. Its standing in view of theBoilermakers' case is unclear.

68 (1932) 48 C.L.R. 487, 518.69 Ibid.


Evatt J. went along with the majority of the Court in Huddart ParkerLtd v. The Commonwealth70 in upholding the validity of a Commonwealth regulation requiring that in the employment of waterside workersfor overseas and interstate vessels, priority shall be given to membersof the Waterside Workers' Federation. It was argued in that case thatthe regulation was a law relating to employment (which was a matterfor the States) rather than one with respect to commerce. For the mostpart, Evatt J. argued along the conventional lines propagated in theEngineers' case.

No doubt the powers of the States are very important, but theirexistence does not control or predetermine those duly granted tothe Commonwealth. . . . It is the grant to the Commonwealthwhich must first be ascertained. Whatever self-governing powersremain belong exclusively to the States. 71

Even here he sounded a word of warning:

It is necessary to speak guardedly upon the matter, for a greatvariety of cases may arise in the future. No one can test in advancethe true nature and character of suggested legislation. 72

In The King v. Brislan; Ex parte Williams73 the issue was whether theCommonwealth could control radio broadcasting under its power insection 51 (v) to make laws with respect to "postal, telegraphic, telephonic, and other like services". Latham C.J., Rich, Starke, Evatt andMcTiernan JJ. answered the question in the affirmative. Dixon J.dissented. In the joint judgment of Rich and Evatt JJ. we do not findtrumpet calls of nationalism that one is accustomed to find in thejudgments of, say, Isaacs J. Nor is there a general principle expoundedpointing to a broad construction of Commonwealth powers. TheirHonours concentrated upon the form of the particular power-whichfrom its wording, they thought, was clearly intended to provide forthe future and bore upon its face an attempt to cover unknown andunforeseen developments. "A wide operation should be given to such apower."74

Like most other members of the High Court before and after, Evatt J.was extremely wary of importing into the Australian Constitution· thenotion of "commingling" used by the United States Supreme Court inthe construction of the American commerce power. He refused toaccept the theory that the Commonwealth could legislate to cover allaircraft engaged solely in intrastate trade by reason of the possible

70 (1931) 44 C.L.R. 492.71 Ibid. 527.72 Ibid. 528.73 (1935) 54 C.L.R. 262.74 Ibid. 283. They also relied to a large extent on Privy Council decisions in relation

to the British North America Act 1867 (U.K.).


commingling in air routes and airports or aircraft proceeding intrastate with aircraft proceeding interstate. His position, although expressedin a rather abstract form in The King v. Burgess; Ex parte Henry,75 maynot be very much different from that of the High Court today.76 Thejoint judgment of Evatt and McTiernan JJ. accepted the view that theremight be occasions when parts of intrastate aviation would be seen tooccupy "so direct and proximate a relationship to interstate aviation"that intrastate aircraft and operators would come within the scope offederal power.

It is in relation to the external affairs power however where Evatt J.most clearly joins and, indeed, leads the centralists. In The King v.Burgess; Ex parte Henry,77 Latham C.J., Evatt and McTiernan JJ. concluded that the Commonwealth had power under section 51 (xxix) tolegislate to secure the performance within the Commonwealth of aninternational convention on any subject. The joint judgment of Evattand McTiernan JJ. went even further. They thought the Parliamentcould well be competent to legislate for the carrying out of "recommendations" as well as "draft international conventions" resolved uponby the International Labour Organisation or of other recommendationsor requests made by international bodies. Both in this and other judgments,78 Evatt J. traced in great detail and with copious references toarticles, books and other authorities, the development of Australia asa sovereign personality in international affairs.

Apart from specific restrictions on power in the Constitution, Evatt J.would admit of no restrictions upon the external affairs power of theCommonwealth save one, namely that Commonwealth legislation shouldbe in compliance with the international treaty or understanding. Thereis a passing reference to another possible limitation. "No suggestionhas been made that the entry into the convention was merely a deviceto procure for the Commonwealth an additional domestic jurisdiction".79The question of proving mala fides against the Commonwealth is fraughtwith difficulty and it is doubtful whether Evatt J. really regarded thissuggested restriction on Commonwealth power as a serious one.

Mr Justice Evatt's concern with the international status of Australiaand its links with the rest of the world lead him to the conclusion thatit was· the external affairs power rather than the territories power whichwas the appropriate source of legislation for mandated territories suchas New Guinea.80 Yet, ironically-or perhaps typically-he used the

7S (1936) 55 C.L.R. 608, 677.76 See Airlines ofNew South Wales Pty Ltd v. New South Wales and the Commissioner

for Motor Transport (1965) 38 A.L.J.R. 388.77 (1936) 55 C.L.R. 608.78 Jolley v. Mainka (1933) 49 C.L.R. 242.79 (1936) 55 C.L.R. 608, 687.80 Jolley v. Mainka (1933) 49 C.L.R. 242; Ffrost v. Stevenson (1937) 58 C.L.R. 528.


external affairs power on this occasion to limit the powers of the Commonwealth in the mandated territories rather than to extend them. Ifsection 122 of the Constitution were the source of Commonwealthlegislation in such territories there would be few, if any, restrictionsupon Commonwealth legislative power. To rely upon the external affairspower, however, was to make relevant the provisions of the mandateunder which the Commonwealth held the territory. And it was the provisions of the mandate which Evatt J. seemed bent upon makinginviolable. In Ffrost v. Stevenson81 his Honour emphasized the "sacredtrust" aspect of the mandate. The Commonwealth could exercise itsgovernmental powers in the territory only for the purpose of carryingout its international duties and obligations to the inhabitants of theterritory. He quoted from a writer who said that if the words

a "sacred trust for civilization are to be ignored then the mandatorysystem is a fraud from beginning to end, merely a new method ofimposing imperialistic will upon subject people". 82

By placing Commonwealth power to govern the mandated territoriessquarely under the external affairs power he was proposing to ensurethat the Commonwealth would have no opportunity for ignoring itsobligations under the mandatory system.

In Fishwick v. Cleland,83 a unanimous High Court seems to havedecided against Evatt J. by stating that section 122 was to be preferredas the source of Commonwealth legislative power in the trusteeshipterritory of New Guinea. The judgment is a rather unsatisfactory onein that it suggests that whether there was any inconsistency betweenCommonwealth legislation and the trusteeship agreement could not,in any event, go to legislative validity because that was a matter of international law rather than domestic constitutional law. While this conclusion would certainly follow from the choice of section 122 as thesource of the power, the Court implied that, in any case, the international aspect was irrelevant because:

In the case of a State possessing a unitary system of governmentthat means that the full powers of government are at its service inperformance of its obligations under the Trusteeship Agreement.In the case of a federal system the powers which may be exercisedmust of course depend upon the constitution of the State but thatis entirely an internal matter. 84

Yet if section 51 (xxix) was the proper source of power, is it so obviousthat the international agreement is irrelevant ? However that may be,the High Court appears to believe that because a unitary state has toanswer only internationally for its administration of trusteeship territories, this should ~lso be the position for Australia.

81 (1937) 58 C.L.R. 528.82 Ibid. 579.83 (1960) 106 C.L.R. 186.84 Ibid. 197.


EVATT'S GENERAL ApPROACH TO THE CONSTITUTION

In summing up the qualities of Dr Evatt as a judge in constitutionalcases, comparison with other judges is both inevitable and illuminating.He is often contrasted with Sir Owen Dixon. If labels had to be used,"conceptual" and "sociological" would be applied to Sir Owen Dixonand Dr Evatt, respectively. Yet they had, in contrast with their colleagues,a certain amount in common. They were both constitutional lawyers inthe grand manner; both responded readily to the call of a former U.S.Chief Justice, John Marshall, not to forget that "it is a constitutionwe are expounding".85 Both would have scorned the view that becausethe Constitution was a British statute the canons of construction applicable to it were little different from those relevant to the interpretationof any other Act. Both refused to be fettered by the Engineers' case inmaking assumptions as to the form of government presupposed bythe Constitution. Both were opposed to reducing constitutional provisions to merely formalistic or procedural relevance.

Yet, differences there were-and they were great. For example, it isstill convenient for lecturers in constitutional law to contrast the Evattand Dixon views of section 92 or of the external affairs power as representing two polar extremes. But the important differences between themrelate not so much to their decisions but to different approaches, techniquesand views about the judicial function.

Compared with the elegant exposition and tight logical analysis ofSir Owen Dixon, many of Mr Justice Evatt's judgments often seem looselyreasoned-rather as if he were still working out his ideas-as if theobject he had in mind was still a rather blurred one, but which wouldbecome clearer in the fullness of time and experience.

(a) Legislative purpose and judicial enquiryUnlike Sir Owen Dixon, Dr Evatt never seems to have worked out

any consistent view regarding the relevance of legislative or administrative purpose to many of the problems relating to the interpretation ofthe Constitution. In Moran's case86 he spoke as if all or many Commonwealth powers and limitations were to be interpreted in relation tolegislative purpose:

But it is often necessary to produce evidence in order to determinewhether the executive has employed for one purpose a power whichcan only be lawfully exercised for another. 87

In the same judgment he placed great emphasis on the Court findingout whether the legislation was colourable or disguised. In those circumstances he said the Court may have to look behind names, forms

85 M'Culloch v. Maryland (1819) 4 Wheat. 316, 407.86 Deputy Federal Commissioner of Taxation (N.S. W.) v. W. R. Moran Pty Ltd

(1939) 61 C.L.R. 735.87 Ibid. 794.


and appearances. The same principle he regarded as applicable toconstitutional guarantees such as those in section 51 (ii) and section 92.It is interesting that in citing authority for this method of approach hereferred almost entirely to cases relating to the British North AmericaAct 1867 (U.K.) (30 & 31 Vict. c. 3). As is well known, the CanadianConstitution presents special problems because affirmative andenumerated powers are given to the provinces as well as to the DominionParliament. His Honour quoted, for example, a statement by LordMaugham in Attorney-General for Alberta v. Attorney-General forCanada88 where he said that it was not competent either for the Dominionor the Province under the guise, or the pretence, or in the form of anexercise of its own powers, to carry out "an object which is beyond itspowers and a trespass on the exclusive powers of the other".

Yet it has been almost a truism since the Engineers' case that themethod of classification adopted for the British North America Act isnot appropriate to the Commonwealth Constitution because the Statesare not granted any exclusive powers, nor indeed any specific powers atall, by the Constitution. The emphasis given by Evatt J. to the duty ofthe Court ·to look behind forms and appearances and to see whetherlegislation is colourable or disguised resembles the language used by themajority in Barger's case.89

It is typical of Evatt J. that he was not consistent in this approach.At other times, he did recognize that the method of construction appropriate to the Australian Constitution was different from that applicableto the Canadian Constitution and in Huddart Parker Ltd v. The Commonwealth90 drew the appropriate distinction between Canada andAustralia.

Coupled with Evatt J.'s insistence on determining the purpose of legislation in order to decide upon its validity, was a belief in the almostunlimited scope a judge had for determining the true purpose of theParliament and governmental bodies. In Attorney-General (N.S. W.) v.HomebushFlour Mills Ltd,91 a New South Wales scheme to avoid theprohibition of State excise duties in section 90 was declared invalid bythe High Court. The Flour Acquisition Act 1931-1933 (N.S.W.) purported to expropriate flour coming into existence in New South Walesafter the commencement of the Act and to vest it in the Crown. TheAct provided for compensation to be paid at prescribed rates and. gavethe miller the option of buying the flour back from the Crown at a higherrate. The "option" to buy back was completely illusory as a miller who

88 [1939] A.C. 117, 130.89 The King and the Minister of State for the Commonwealth v. Barger (1908) 6

C.L.R.41.90 (1931) 44 C.L.R. 492, 527.91 (1937) 56 C.L.R. 390, 418.


did not repurchase would have to go out of business. The differencebetween the compensation payable by the State government and theprice at which the miller could repurchase the flour was, in substance,a tax. Evatt J. considered that if there was any doubt as to whetherthe legislation imposed an excise, the Court could investigate the factsand governmental actions extraneous to the enactment. It could enquireinto the actual operation of the Act. His Honour mentioned the annualreports of the Auditor-General as a source of enquiry. In Moran'scase92 he declared that in order to prevent the legislature realising itsobjectives through devious means, there was in principle no reasonwhy public announcements of governmental policy, official governmental records and communications and even reports of parliamentaryproceedings should be excluded from the field of relevant evidence.93

It is not within the scope of this article to analyse the theory held byEvatt J. regarding section 92. However, as is well known, the conceptof legislative and governmental purpose played a large part in his interpretation of that provision. For the successful application of the theoryheld by Evatt J., a wide field of judicial enquiry was necessary. Giventhe more limited methods adopted by many of the other judges of theCourt, it seems that an application of his approach would almostcertainly have resulted in considerable trade protectionism. In thisregard, the case of Riverina Transport Proprietary Limited v. Victoria94

is illuminating.

The High Court, in The King v. Vizzard; Ex parte Hill,95 had upheldthe State's transport co-ordination legislation involving discretionaryrefusal of licences to interstate hauliers in order to protect rail revenuesand rationalize competition between road and rail transport. Put verybroadly, Evatt J. considered that if the legislation was not aimed atinterstate trade-whether as imports or exports-section 92 had nothingto say about it, whatever the effect of the legislation might be on theindividual interstate trader. He concluded that the State transportco-ordination legislation did not have the illicit purpose. The mostobvious method of showing a purpose to burden interstate trade is ofcourse to discriminate against it in favour of intrastate trade. In theRiverina case it was alleged that the Transport Regulation Board ofVictoria was in fact discriminating against interstate trade in that itgranted certain licences only to vehicles which operated solely inVictoria. The plaintiff failed in the case but the reasons given by thejudges of the Court varied considerably.

92 (1939) 61 C.L.R. 735.93 Ibid. 794.94 (1937) 57 C.L.R. 327.95 (1933) 50 C.L.R. 30.


Latham C.J. considered that even if it were established that thedecisions of the Board had discriminated against the plaintiff companybecause it was engaged in interstate trade, nevertheless, the plaintiffhad no cause of action. The Chief Justice pointed out that discrimination, as a result of administrative action, could only arise from a comparison of a number of decisions. A court was not a fit body to go intothe various details involved in all the cases. Even if it could, the problemwould arise as to which decisions were in fact invalidated. The ChiefJustice's view is summed up in the following passage:

The real difficulty is to be found in all kinds of differentiatingtreatment in the course of the administration of perfectly validState statutes. The statutes are valid, but they may be used, as isalleged to be the case here, for the purpose of making manyvarieties of discrimination against, and creating disadvantagesaffecting, traders associated with other States. Administrativeauthorities and officers need not, generally speaking, give anyreasons for what they do, and a court cannot possibly deal with anadministrative policy which just happens to lead to the positionthat "no one from another State need apply". 96

Even if it could be proved that a mere refusal to issue a licence wasinspired by the fact that the applicant did not come from Victoria, whatremedy could the Court give? It could not order a licence to be issued.If it believed that railway rates were essentially discriminatory againstanother State it could not construct a new schedule and make it operative.The remedy for this sort of State protection, Latham C.J. thought,lay in the enactment of legislation by the Commonwealth under section51 (i) and use of the Interstate Commerce Commission.

It was however central to the thesis of Evatt J. that discriminationagainst interstate trade was contrary to section 92. If the TransportBoard were in fact discriminating against interstate trade, section 92came into operation. But how was one to get over the difficultiespointed out by Latham C.J. ? How could the Court investigate a wholeseries of decisions in order to determine whether discriminations had infact taken place ? If it came to a decision that there was discrimination,which of the decisions was invalid? What remedy was open to theCourt to deal with the administrative body? In other words, MrJustice Evatt's theory rested upon legislative and administrative purposebut the poverty of our administrative law made it difficult for the Courtin the administrative field to investigate the purpose or object of theadministrators and the prerogative writs seemed hardly sufficient toensure proper judicial control. Evatt J. never explained how the courtscould get over this difficulty. He was indeed very impatient of anyarguments that the court's role might be rather limited in this respect:

96 (1937) 57 C.L.R. 327, 353.

1969) Mr Justice Evatt and the Constitution 179

Difficulties may sometimes arise in moulding a suitable remedy incases where sec. 92 is applied to executive action which is challengedupon the ground that it carries out a policy of hostile discriminationagainst inter-State trade. I think that such difficulties need not beelaborated and can easily be exaggerated. 97

In the result, his Honour found that discrimination was not proved.But his judgment and those of the other judges of the Court show howdifficult it would be to prove discrimination in the circumstances.

Fullagar K.C., before his elevation to the Bench, was counsel forthe plaintiff in the Riverina case. The difficulty he had in showing thatthere was discrimination, and the issue the case raised of whether, inany event, it was relevant if there had been administrative discrimination,may have influenced him in favour of, or provided further support for,his view that the transport legislation was not consistent with section92. The difficulties of the Evatt theory are brought out in the dissentingjudgment of Fullagar J. in McCarter v. Brodie98

It is, for example, obviously within the sphere of practical politicsthat it should be thought in Melbourne that Cootamundra oughtto drink Victorian beer and not South Australian beer. The protection of the industries of one State against those of another Statewas, of course, one of the primary things which section 92 wasdesigned to prevent, but, if the legislation now in question is valid,effect can easily be given to such an opinion without anybodyknowing anything about it. I mention these matters only by theway and as serving to emphasise the essential vice of the legislation. 99

Evatt J. never satisfactorily explained how he would prevent administrators from so acting "without anybody knowing anything about it".The wide field of enquiry which he felt was open to the judge and whichhe explained in the Homebush Flour Mills case and Moran's casecertainly would have helped to some extent; but the High Court is notthe Conseil d'Etat. And this is a field where the development of constitutional doctrine and principles must be affected and limited byjudicial techniques and the availability of administrative remedies. ForEvatt J. to say that the difficulties in moulding a suitable remedy couldeasily be exaggerated was singularly unhelpful.

The problem of the availability of remedies in matters of constitutionaldoctrine has been raised since the time when Evatt J. sat on the Courtbut has never been fully satisfactorily dealt with. For example, thedissenting judges in Marcus Clark and Co. Limited v. The Commonwealthl (the capital issues case) pointed out the difficulty of controlling

97 Ibid. 366.98 (1949) 80 C.L.R. 432, 495-499.99 Ibid. 499. This dissenting opinion was quoted with approval by the Privy Council

in Hughes and Vale Pty Ltd v. New South Wales (No.1) (1954) 93 C.L.R. 1,23.1 (1952) 87 C.L.R. 177.


the power of the Treasurer to refuse consent to proposed capital issuesunder the Defence Preparations (Capital Issues) Regulations 1951(Cth).

The problem, however, mainly arises where, as a matter of constitutional law, it is necessary for the court to investigate legislative oradministrative purpose. Criticism of Mr Justice Evatt's position arisesas a result of his emphasis on the importance of legislative and executivepurposes in relation to many constitutional problems. Under the rulesof construction formulated by Sir Owen Dixon, and largely followedtoday, the tendency is to ignore legislative or administrative purposesin most cases except in respect of the defence power and in mattersarising within the incidental area of other subject matters. 2 The questionof administrative purpose may still arise sometimes in section 92 cases3

but not, it is submitted, in any context where it would be difficult for thecourt to investigate.

(b) Legal analysis and social policy

Dr Evatt can be distinguished from Sir Owen Dixon by a lack oflawyer-like treatment of the doctrines he expounded. Ambiguities and

2 Stenhouse v. Coleman (1944) 69 C.L.R. 457, 471. In Dawson v. The Commonwealth (1946) 73 C.L.R. 157 the Court upheld under the defence power the validityof National Security regulations which required that a person should obtain theconsent of the Treasurer before purchasing land. It was provided that the Treasurermight, in his absolute discretion, grant the consent either unconditionally or subjectto such conditions as he thought fit or refuse to grant the consent. Latham C.J., Dixonand McTiernan JJ. were prepared to read down the absolute discretion to mean discretion within the scope of the defence power. However, it was argued that, if theTreasurer were to adopt measures to conceal the grounds upon which his consent iswithheld, the Court might never know whether he has exercised his discretion properlyand within constitutional purposes. Dixon J. answered this objection rather curiously.He said:

The answer is that that is a complaint against the inadequacy of judicial processto uphold the law. It does not go to the intrinsic validity of the supposed actsof the Treasurer or his delegate. No doubt it is an argument against the constitutional validity of all Federal regulation which takes the form of prohibiting anact unless the consent is obtained of an administrator in whom is confided adiscretion. But it is now much too late to adopt that rigid test.

It is hard to see why the argument mentioned in that case was an argument againstthe constitutional validity of all federal regulations which take the form of prohibitingan act unless consent is obtained. A prohibition of imports subject to an administrative discretion, for example, is probably valid under s. 51 (i) because that poweris not a purposive power and permission to import may be refused or granted on anygrounds at all, such as considerations involving the protection of manufacturing,safety, morality or political expediency. The constitutional problem arises when thepower can only be exercised for a particular purpose as is the case with the defencepower. In the case of a purposive power, the availability of judicial remedies surelycannot be irrelevant. They seemed to be regarded as essential in the Capital Issuescase. Sir Owen Dixon has not adopted similar reasoning in any other case and it issubmitted that Dawson's case is best explained on the basis that the war-time defencepower carried over into 1946 and that by virtue of the war-time defence power, a lawmay "be made to operate upon the opinion of a designated person, and that opinionmay supply the only link that between the defence power and the legal effect of theopinion..." (Communist Party Case (1951) 83 C.L.R. 1, 258 per Fullagar J.).

3 Wilcox Mofflin Limited v. The State of New South Wales (1951-1952) 85 C.L.R.488.


vagueness abound (of necessity) in the constitutional judgments of alljudges. Sir Owen Dixon's judgments are no exception. Of all fields oflaw, constitutional law is one where clear and specific rules of construction are least expected. But in the case of Evatt J., there is anapparent failure to arrive at, or at least express, in many instances, evena very general approach to interpretation which can be applied withreasonable consistency. He became too immersed in the immediateproblem. In Huddart Parker v. The Commonwealth,4 Commonwealthpurpose and policy were down-graded. The principles of constructionapplicable in Canada were distinguished. In Moran's case,s legislativepurpose was elevated to a central position (and not confined to constitutional limitations). The Canadian authorities were quoted in support.

Evatt J. was fond of suggesting that different approaches might beapplied to different powers and provisions. In Williamson v. Ah On6 theHigh Court had held valid a provision putting on a person the onus ofshowing that he was not an immigrant. In The King v. Hush; Ex parteDevanny7 Evatt J. suggested obiter that the position might be differentwhere other sorts of "constitutional facts" were involved:

In Williamson v. Ah On, the relevant legislative power exercisedwas that in relation to the subject of immigration. The very natureof that subject matter may warrant an enactment which placesupon a person suspected of being an immigrant the burden ofshowing, by evidence, that he is not. 8

But no indication is given of even a general criterion for discriminatingbetween powers in this regard. This tendency of avoiding the expressionof principles or criteria is displayed in other areas.

In West's case,9 Evatt J. accepted the now orthodox view that a Statetaxing Act could not discriminate against federal officers. Like Dixon J.,he based this on the view that discrimination would show a purpose ofburdening federal functions. But he then went further and said:

Even if" without discrimination, the State law became so onerousa burden upon individuals as to amount to a serious impedimentto the conduct of Commonwealth business within the State, itmight also be deemed invalid. 10

That a court is in a position to examine the appropriate quantum of ageneral State tax is itself a surprising view. Even the majority in Barger'scase11 rejected the notion that they could enquire whether a tax was

4 (1931) 44 C.L.R. 492.5 (1939) 61 C.L.R. 735.6 (1926) 39 C.L.R. 95.7 (1933) 48 C.L.R. 487.8 Ibid. 512.9 West v. The Commissioner of Taxation (New South Wales) (1936-1937) 56 C.L.R.

657,690.10 Ibid.11 (1908) 6 C.L.R. 41.


"prohibitive".12 But it illustrates Evatt's desire to keep all his optionsopen, his broad view of the judicial function and his belief in the efficacyof judicial methods. The absence of any general criterion is the result.

Of course, many judges dislike expounding principles which go beyondwhat is required to deal with the particular case. In constitutional lawthis is a particularly salutary attitude. The Constitution is intended toendure for a long time; new situations and circumstances can arisewhich no person can foresee. But Evatt J. seems to have taken this adhoc approach to an undesirable extreme. This is perhaps best illustratedby comparing the views of Dixon and Evatt JJ. about what was decidedby the Engineers' case.

As indicated earlier, both judges refused to accept the principle that,if a law could be categorized as one with respect to a subject matter insection 51, it could in all circumstances be made validly binding on aState. The existence and independence of the States, both judges felt,could not be ignored in deciding on the validity of the Commonwealthlegislation. Sir Owen Dixon proceeded to develop and explain a view ofthe Engineers' case which took into account his theory of federalism.13

Broadly speaking, his view was, that the Engineers' case establishedthat, prima facie, the Commonwealth power authorized legislationaffecting the operation of the States and their agencies, at any rate ifthe State was not acting in the exercise of the Crown's prerogative, ifthe Commonwealth law did not discriminate and if it did not relate totaxation.

Evatt J. however was not prepared to draw even that amount ofprinciple out of the Engineers' case. On that aspect of the Engineers'case, all he would regard as indisputable was:

that under sec. 51 (xxxv.), the activities of a State as employer inindustries are within the scope of the subject matter of that subsection. But the Engineers' Case is no warrant for the extreme viewthat the result reached in relation to sec. 51 (xxxv.) necessarilyapplies indifferently to all the placita in section 51.14

He then went on further to emphasize his opinion that each power mustbe looked at separately, by saying:

12 Menzies J. apparently does not feel so inhibited on this question. In Fairfax v.The Federal Commissioner o/Taxation (1965) 114 C.L.R., 17-18, he said:

For example, a special prohibitive tax upon income derived from the sale ofheroin or from the growing or treatment of poppies for the production of heroinmay not be a law with respect to taxation but rather a law made for the suppression of the trade in that drug by imposing penalties described as taxes forparticipation in it.

This is the only statement I can find other than that of Evatt's in West's case whichsuggests that there may be quantitative limits on the taxation powers of the Commonwealth or the States. What is difficult to understand about this statement of Menzies J.is that he denies that the economic consequences or the motive behind the enactmentof the law would be relevant to determine whether it was a law with respect to taxation.But how could the Court determine whether the tax was "prohibitive" unless it lookedat economic consequences ?

13 Zines, "Dixon's Theory of Federalism" 1 Federal Law Review 221.14 (1937) 56 C.L.R. 657, 706.

2


Outstanding factors in interpreting the thirty-nine placita in sec.51 are the separable nature of each of the placita and the principlethat the legislative powers of the States are concurrent with thoseof the Commonwealth.15

Evatt J. therefore left a lot to be desired from the point of view ofjudicial craftsmanship. He paid little regard to problems of procedureand judicial remedies and was quick to plunge into the substantivequestions. Even in respect of those questions he often refused to expoundgeneral principles for fear of limiting his freedom of decision in a futurecase. In adopting this piecemeal, pragmatic approach he was not alwaysconsistent in the reasoning he employed.

Yet he had a quality which it is suggested has been lacking in manyHigh Court Judges and which is considered highly desirable in a judgeof constitutional law. This quality may be best described as a socialawareness-a belief that the meaning and application of many provisions of the Constitution cannot be decided by mere contemplationof the language used or by the adoption of the canons of construction.It is an approach which requires social consequences to be taken intoaccount as part of the process of interpretation.

Evatt J. tended (with some exceptions) to put all his "policy" cardson the table. There were few inarticulate major premises. When heretired from the High Court bench, his Honour, on the occasion of thefarewell tendered to him by the profession in New South Wales, said:

I have tried to follow such illustrious examples as those of Holmesand Cardozo in the United States, and Atkin and Wright in England.It is for others to say whether I have succeeded.16

It is doubtful whether, for the reasons given, history will place Dr Evattin the same category as the judges he mentions. But it is in relation tothis quality of social awareness that Evatt J. does resemble them. They,like Evatt J., often regarded social consequences as relevant factors toconsider in developing rules of law and in interpretation.

Perhaps this quality is best illustrated by again contrasting the approachof Dr Evatt with that of Sir Owen Dixon in relation to the Engineers'case. Both were prepared to take the concept of federalism into accountin determining questions of inter-governmental immunities. Evatt J.never fully developed this idea. Dixon C.J. did and I have examinedthose ideas elsewhere.17 While the views of Dixon C.J. cannot be regardedas absolutely clear, his theory is a highly elaborate one, logically builtup from premises obtained by combining principles derived from theconcept of federalism with rules of construction laid down in theEngineers' case. But from the point of view of social and politicalconsequences, how unsatisfying that theory is !

15 Ibid. 706-707.16 (1940) 14 Australian Law Journal 194.17 1 Federa Law Review 221.


Sir Owen begins with an attack on the Engineers' case based on apolicy or principle (as he would probably prefer to call it) that theConstitution is concerned with the existence and independence of theStates. The final result however seems to be that the States may be in afar weaker position than would have been the case if the reasoning ofthe Engineers' case had been more firmly adhered to.18 Certainly Evatt J.would never have arrived at this position.

One gets the impression that at times-and particularly in constitutional law-Dixon C.J. was carried away by his logical ability andanalytical precision. In the case of inter-governmental immunities, atany rate, the conclusion arrived at by Dixon C.J., when judged inrelation to the initial premises, appears, politically and socially, to bevery strange.

Evatt J. was nearly always concerned with social consequences.Whether a law was incidental to the bills of exchange power or thedefence power might depend, he thought, on the impact it would haveon State policies. It might be argued that this is a throwback to the"reserved powers" doctrine; that it is not a legitimate method ofinterpretation to assume the Constitution confers certain powers onthe States and to limit Commonwealth power· accordingly. It is submitted, however, that there is a great deal of difference between theapproach of Evatt J. and that of the first High Court.

It is undoubted that he saw the Constitution as requiring the maintenance of independent States with extensive powers. His opinionsregarding inter-governmental relations and the power of the Commonwealth to protect its servants and agencies from State law make thisclear. But in interpreting Commonwealth powers, he did not apply anygeneral theory of reserved State power. He was too much of a pragmatist. It was not so much a belief in strong States as a belief in the efficacyof legislative action that motivated him. Some legislature should beable to control all the traffic in an area; some legislature should beable to adopt the policies behind the Moratorium Act. The Commonwealth clearly could not and so Commonwealth power should not beinterpreted so as to frustrate State measures.

The issue whether a .law is incidental to a head of Commonwealthpower is, of necessity, bedevilled by such labels as "proximate","direct" and "remote". Once it is admitted that the question is one ofdegree, that it involves weighing and evaluating and that some subjectivism is unavoidable, the approach of Evatt J. can hardly bedescribed as an illegitimate one. It certainly admits of greater rationaldiscussion than the "intuitive" method adopted by some judges iIi this

18 The principles formulated by Dixon C.J. place some limits on the power of theCommonwealth to make laws governing the States, but deny any power to a State tocontrol the Conlmonwealth even in the absence of Commonwealth legislation to thecontrary.


field. In many circumstances, it is in any case an impossible mentalfeat to ignore the existence of State legislative power when determiningwhether a Commonwealth law directly affects or is too remote from asubject matter within Commonwealth power.

For example, in deciding what is incidental to interstate commerce,it has been said that the Constitution draws a distinction betweeninterstate and intrastate commerce and that in determining what isincidental to interstate commerce, this distinction cannot be obliterated.19

The application of this principle looks rather like the doctrine of reservedpowers entering through the back door. It lacks, moreover, the virtueof the more functional approach of Evatt J.

If we view the pronouncements of Evatt J. in the light of particularsocial problems, his attitude to the external affairs power is completelyexplicable and involves no inconsistency of attitude. Again if we startoff with his assumption that some legislature must be able to deal withthe issues arising under the treaty and put them into legislative effect,the decision is inevitable. The Commonwealth has the prime responsibility for carrying out the obligations of the treaty in the same wayas a State has prime responsibility (in the absence of an internationalconvention) for traffic control. It is the duty of the High Court to seethat so far as possible the legislature which is responsible for dealingwith a particular social problem should be unhampered in its efforts.

CONCLUSION

In constitutional cases, much of the reasoning of Evatt J. was aimedat protecting the independence and integrity of the States-not only inrespect of their executive functions but also their legislative power.Historically, it is no doubt true that most States' rights supporters havebeen conservative. Yet Evatt J. combined his anti-centralism with asympathy for social legislation and civil liberties. He saw legislation asa medium of social reform and welfare; but social reform throughlegislation might occur as a result of State as well as Commonwealthaction.

Dr Evatt had been a New South Wales politician before he becamea High Court judge. In the 1920's, it may have seemed to him, as it didto other members of the New South Wales Labour movement, that itwas the N.S.W. Labour government which was responding to the needsof the people and the federal Bruce/Page Government which representedconservatism.

In resisting Commonwealth encroachments on State power, it issubmitted that Evatt J. was endeavouring to preserve the authority ofthe States to deal with social problems and engage in novel experiments

19 Per Dixon C.J. in Wragg v. New South Wales (1953) 88 C.L.R. 353, 386.


which were either generally outside the scope of Commonwealth poweror in respect of which the Commonwealth had not fully legislated. Hewas primarily opposed to the mere nullification of State laws by theCommonwealth. Where the question was one of extending Commonwealth powers in one area, so as to render ineffective State laws in adifferent area, he appeared to see the problem as partly one of conflicting interests. It was necessary to look at the consequences of upholdingthe Commonwealth law in relation to matters primarily within theCommonwealth sphere and then to look at the effect of the Commonwealth law on matters for which the State was responsible.

His inconsistencies in reasoning, his refusal often to formulate generalprinciples and his over-confident ideas on the ability of judges to investigate social matters and to carry out and supervise many of the objectshe saw in the Constitution, were his biggest failings. His endeavour tolook behind verbal formulations to social realities, his attempt to seelaw as a medium for fulfilling social purposes and his refusal to takethe view that "objectivity" in a judge means being blind to social consequences ensure that he will always be regarded as a most notable andremarkable judge of the High Court.

Referring to the views of Dixon and Evatt JJ. on section 92, ProfessorSawer has written:

[T]he inter-play of these powerful and subtle minds cannot becontained in any formula and indeed their joint opinions on mattersother than s. 92 suggested that a synthesis of their methodscould have been achieved, combining the logical and semanticrigour of Dixon J. with the social awareness and historical senseof Evatt J.20

Whether or not a synthesis is possible, it is clear that Dr Evatt andlSirOwen Dixon each possessed qualities desirable in a judge that the otherlacked. Our constitutional law would be better for the synthesis.

20 Sawer, Australian Federal Politics and Law 1929-1949 (1963) 222.

mr justice evatt and the constitution

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