A constitution is a supreme law

What exactly is wrong with reserved power doctrine - Australia

A Constitution is a supreme law of a country. It contains the fundamental rules that constitute the country and its institutions. The Constitution defines the power of the entities and the limits of that power. It also describes the country's political system. Australia has Federal Constitution and State Constitution. Every citizen is protected by parliamentary representation and responsible government Kruger v Commonwealth . Constitution interpretation is done by human beings therefore the understanding varies according to individual differences.

The Making of Constitution

The empirical statute told Australians that their Constitutions are supreme law of the new Commonwealth. Australia agreed that empirical parliament would legislate for Australians. Legally binding and fundamental character of the Constitution is found of preamble of the Constitution Act. Section 109 of the Constitution, under which State law which are inconsistent with valid common law are effectively rendered inoperative for duration of the inconsistent but able to take affect if the Commonwealth statute is repealed or amended to remove the inconsistency.

Commonwealth Constitution

In 1977, the High Court held that it must integrate common law rules to comply with the supreme constitution. It objected in alia line of cases which suggested and alternative approaches to the consistent two bodies of law, the constitution may have the same affect of the common law on its legislation by sticking down of the inconsistent rules. It is evident in case of Lange v Australia Broadcasting Corporation . This case also highlights the development of the common law in Australia cannot run counter to constitutional imperatives.

Section 51

The corporation power (Section 51 (xx)) confers power to the Commonwealth in respect to trading and financial corporations. On the basis of this power the Commonwealth attempted, in 1989, to enact comprehensive legislation on corporations in Australia.

In The Corporations Case the High Court held that the corporations' power related to the power to regulate existing corporations. Therefore, the power did not support legislation prescribing incorporation processes.

However, having different sets of rules in each jurisdiction for the establishment of companies, and different registers for the existence of companies, created red-tape and legal hurdles for business. After the incorporation case, the states agreed to refer powers to the Commonwealth. The current Corporations Act 2001 is, in part, supported by this referral of power. The referral also allowed the passage of the Australian Securities and Investment Commission Bill.

Reserved Power.

The Constitution gives the right to the Governor General to a number of specific powers .However there are powers that the Governor General may, in certain situations exercise without Ministerial advice. These ‘discretionary powers' are known as reserve power .It adopted the restrictive approach to the interpretation of the specific powers of the Federal Parliament in order to preserve the residual powers of the States. The doctrine of reserved powers was overturned by the High Court of Australia in 1920 by Amalgamated Society of Engineers v Adelaide Steamship Co Ltd .Since the Engineers case the, the Commonwealth's constitutional powers have been interpreted as plenary powers, that is powers that are unqualified by any implied reservation of powers to the states. In Victoria v The Commonwealth it has been described by Justice Windeyer as a natural result of twenty years of the development of Australia as one country of national laws to meet national needs and that it cannot be regarded as a correction of antecedent errors. But even today it cannot be denied that the federal idea continues to exert an influence on constitutional interpretation.

The use of reserved power in 1975

In 1975 there was a constitutional crisis in Australia which led to the sacking of the Whitlam government . One of the issues was whether the Senate had power under section 53 to defer or delay passage of a money bill providing for the federal budget passed by the House of Representatives thus denying the government access to fiscal resources. The view that it does would make the Senate one of the most powerful upper houses in the world.

As to the assignment of legislative powers section 51(1) and section 52 of the Australian Constitution set out the basis for this. Section 52 contains powers which are exclusive to the federal government (and cannot be exercised by the States) and section 51(1) other powers which are taken to be concurrent with the States (both can legitimately legislate with respect to them)

Apart from section 52 section 51(1) is an exhaustive list of the powers of the national parliament. The list of relevant areas was compiled in the late 1800s. It does not contain what many would now regard as matters of essentially national interest such as the control of the national environment. It has largely been left to the High Court to expand range of the listed powers by liberal interpretation of some of the provisions. Note, however, that sub-head (xxxvii) make provision for the referral of powers by the States to the Commonwealth. This opens the way for what is called co-operative federalism, involving some attempt to provide uniform laws throughout Australia on key areas. The regulation of corporations is one area in which this has occurred.

The powers under section 51(1) are powers held concurrently with the States. What happens if both, a State and the federal government should have passed laws relating to the one subject area. This would create extreme confusion on the part of citizens. Section 109 sets out to provide the appropriate balancing mechanism. This does not pronounce an inconsistent State law invalid altogether. It is invalid only to the extent of the inconsistency.

The States have a reserve of legislative powers in matters which are not contained within sections 51 and 52 fall exclusively to the States. If the federal parliament were to attempt to legislate on them then the legislation would be ultra vires. This arrangement reflects the historical strength of the States when the compact was formed.

Notwithstanding the restrictions on federal legislative powers the balance of powers in Australia's federal system has shifted considerably towards the federal government. This has been implemented by the manner in which High Court has interpreted the Constitution. This process started in 1920. In 1942 the High Court upheld federal government legislation which, in effect, gave it a monopoly, the levying of income taxation. This effectively gave the federal government a huge advantage in terms of the raising of financial resources. It can now control State government policy in many key areas by the making of financial grants to the States which are conditional on the implementation of federal government policy at the State level.

In New South Wales v Common wealth The High Court of Australia a 5:2 majority held that the Workplace Relations Amendment (Work Choices) Act 2005 (C th) as validly enacted under the Commonwealth's corporations power. This Act replaced the existing federal system of compulsory conciliation and arbitration based on the industrial arbitration power. This decision was revolutionary in view of the text, structure and underlying principles and purposes of the Constitution. Historically the High Court specifically chose between the two fundamentally different approaches to the interpretation of the legislative powers of the commonwealth and the states. Reserved power doctrine was the first approach used and the second one was the Amalgamated Society of Engineers v Adelaide Steamship Co Ltd(Engineers Case)

Nicholas Aroney in his articleargued that in order to understand the reserved powers and the Engineers case doctrines one has to scramble the two doctrines into their constituent elements and then identify the different versions in which each doctrine has been presented. He again contented that three versions of both the doctrines are to be distinguished. The abrogated, absolute and interpretive versions of the reserved powers doctrine and testamentary, methodological versions of the Engineers' doctrine. The Engineer's case also illustrates the way in which characterisation principles were linked to interpretive method. First the majority relied on the text in order to ascertain intention. Second, the majority rejected the use of “necessity� of implications in constitutional interpretation because that would involve an assessment of what the joint judgement (Knox CJ, Isaacs, Rich, and Starke JJ) refers to political sense as what was necessity. The principle of necessary implications was “indefensible “as a means of interpretation.

The third interpretive technique was a strict defence to parliament by the judiciary based upon the proposition of the parliament supremacy

The Doctrine of Necessity

As seen in case of Prasad v Republic of Fiji Gates C J held;

“Whatever is done however should be done in order to uphold the rule of law and the existing constitution. Necessity cannot be resorted to in order to justify or support the abrogation of the existing legal order. The doctrine is valid only to protect not to destroy�.

The Powers Of The President In Fiji

On a comparative note questions concerning the nature and scope of the emergency and reserve powers of the President of Fiji under the 1997 Constitution of Fiji have been brought into spotlight by the Speight-led coup of 19th May 2000 in Fiji.

In fact the invocation of the emergency and reserve powers on the part of the then President Ratu Sir Kamisese Mara shortly after the coup was very much an attempt to operate within the realms of legality provided by the established constitutional framework.

The question which is at issue here is whether that particular disposition to surround the relevant actions by the cloak of constitutional legitimacy was ever likely to work. The issue of concern was whether it was ever possible for the President to have claimed to have acted within the existing constitutional framework in terms of the course of action which he undertook.The general context for interpretation of the powers of the President of Fiji are stated clearly in section 109(1) of the 1997 Constitution of Fiji embodied in the Constitution Amendment Act 1997.

The basic principle of responsible government is mentioned into the constitutional structure of Fiji. It is this structure which limits the authority and power of a President as the notional head of the executive government. But the question at issue is what powers the President might have had under the Constitution to take effective action in the crisis situation which the so-called coup produced.

In interpreting the provisions it seems clear enough that the President does not have any power to dismiss the Prime Minister of Fiji or to constitute an interim government pursuant to either the constitutional provisions relating to emergency powers or otherwise. As to "any other reason" the problem is that the use of words such as these should be interpreted ejusdem generis.

Whitlam government.

There is possible precedent for this. In Australia in 1975 the Whitlam Labour government and Prime Minister Whitlam were dismissed from office, and a caretaker Prime Minister appointed pending the holding of elections. Both instances appear to provide at least some superficial basis upon which the President in Fiji might dismiss a Prime Minister in case of crisis. In the Australian case ,it seems to have been beyond doubt that the Governor-General could dismiss a Prime Minister and an elected government in Australia in cases of loss of confidence in the lower house or in respect of illegal or unconstitutional conduct. But whilst there was some argument about unconstitutional behaviour on the part of the Whitlam government at the time, particularly from the opposition, this action was taken by the Governor-General ostensibly on the basis that the budget had been blocked by the Senate and there was in a sense a financial crisis in Australian national government. The Governor General's action in this regard was never challenged in, or ruled upon by, the High Court.

Although the dust on the 1975 constitutional crisis in Australia has never quite settled, one could argue that a financial crisis is nonetheless a crisis. Therefore, so it might be said, this serves as a precedent on which the President of Fiji could rely. There was in Fiji a crisis of government and an inability to govern which required urgent action by the Head of State. Williams has suggested that there should be no such precedent on the basis that the Governor-General's action in 1975 only permits dismissal in a case where a government cannot pass its budget.4 a government must be able to secure the confidence of its people and thus of the principle of responsible government. But this is not necessarily the case if one treats the matter as indicative of a radical inability by a government to govern. If that were the underlying principle then one could perhaps extend the principle to the situation in Fiji.

However, a more telling point is that the position of the Governor-General of Australia cannot be equated with that of the President of the Republic of Fiji Islands. Governors-General are representatives of the Queen of England. All are in a sense the symbolic heads of constitutional monarchies. Fiji is not a monarchy. Under the 1997 Constitution it is firmly established as a republic by article 1. Hence, there must be some essential doubt about whether the respective positions could be assimilated in terms of reserve powers.

Along similar lines, Professor Saunders has suggested that the Australian Constitution is silent about issues of reserve powers of the Governor-General. Indeed, it is silent about many aspects of responsible government presumably because the writers of the Constitution largely assumed that the conventions of responsible cabinet government would apply without need for further articulation. Much was therefore left to the so-called conventions of responsible government.

But this was hardly the case in respect of the 1997 Constitution of Fiji. That Constitution is rather detailed on specification of the circumstances in which the President might exercise reserve powers and indeed on the question of what those reserve powers are. This raises the problem that the unstated conventions of responsible government in Australia would not apply in the face of an extensive statement of the relevant principles in the Constitution itself.

Reserve power as an advantage

In Engineers case the decision that was made with accordance to the constitution was a clear indication of that the Judges took into account the plain and simple meaning of the constitution and took into account the grievances of the Engineers. The limitations of the preserved power are unstated therefore the judges took into account the circumstances and the context in which the Industrial dispute took place. This was in the national interest. Here the Judges indirectly had shown that Australia in one nation. The Commonwealth has the right to intervene if need arises It would be extremely difficult to spell out the existing reserve powers given that there is considerable disagreement about what they are and where their limits lie.

The decision in the Engineers diverted the flow of constitutional law into new channels .Then in 1920 the constitution was read in a new light, a light reflected from events that had ,made Australians realize that they were now one people and Australia one country and that the laws might meet national needs.

Reserve power â€" disadvantage.

The Governor General's dismissal of the Prime Minister indicated that powers entrusted to him under the constitution should be rejected. As such it is regarded as non justifiable .It gives the Governor General powers to control the Nation as he feels fit. This is done under the umbrella of the constitution. He is protected by the constitution. He may not justify his actions.

However it is evident that in case of Fiji that the power vested in the President is leading towards coups. The Coup leader then asks the President for immunity. It leads the country to a possible dictatorship where by the people will be at their mercy.


The phrase reserve power s itself implies that the powers of the governor general conferred by the constitutional provisions are subject to certain limitations it also implies that the power should be applied to a certain reserved situation and the power is subject to limitations. The question then is, where one looks to find limitations on such powers. The answer to this is one then has to rely on the assumptions and rules not stated in the constitution and these rules must carry a certain degree of weight.

In Mr Whitlam's case the Governor General has probably created risky precedent and one which future Governments would no doubt carefully analyse.

Constitution is a statute and subject to rules of statuary interpretations, there is also authority to the effect that the Constitution is something more than an ordinary statue and cannot always be interpreted in the same way. It has also been stated that the language of constitution is often sparse and helpful ,stating propositions in broad and general terms which are very different from language used in ordinary statute .This is particularly true for example of s 51 which confers legislative power on the Parliament of the Commonwealth in certain situations that the Constitution

While the doctrine of the separation of powers and its practice will not necessarily be the same thing, the purpose behind the doctrine can be seen to be embedded in democracies. In the Westminster system, as practiced in Australia, discussion of the doctrine is riddled with exceptions and variations. A tension between separation and concentration of powers will always exist.

In other words one cannot solve today's problems with yesterday's solutions.



Lange v Australia Broadcasting Corporation (1977) 189 CLR 520

Kruger v Commonwealth (1977) 190 CLR

New South Wales v Commonwealth (2006) 229 CLR 1

Prasad v Republic of Fiji (2000) FJC122 Hbc0217 20001

Victoria v The Commonwealth (1971)122 CRL 353-394

Laisenia Qarase and Others v Josaia Voreqe Bainimarama and Others (2007) FHC.

The Australian Constitution as in force on 1 June 2003

The Work Choices Act amended the Workplace Relations Act 1996 (Cth) (Workplace Relations Act)

Nicholas Aroney,�a Constitutional choice in the Work Choices Case or what exactly is wrong with the reserved powers doctrine?�(2008) 32 Melbourne University Law Review1, 43.

PJ Hanks and Cass Deborah(1993) ,Australian Constitutional Law Materials and Commentary 6th edition

Professor Bob Huges School of Law JSPL

Saunders C. Brief Opinion on the Suggestion that the President of Fiji Islands may Dismiss the Prime Minister JSPL, Special Interest Section