The issue of emergency powers has come into recent discussion with the Federal Government having the belief that they should be responsible and have the ability to declare a national emergency to deal with disasters to combat the problem in a streamlined manner.
Legislative Authority over Emergency Powers
Currently, the States have legislative authority and power to enact State of Emergencies to deal with crises that affect their state. In NSW for example, under The State Emergency and Rescue Management Act 1989 (NSW) Section 33, the Premier may declare a State of Emergency when he or she “is satisfied that an emergency constitutes a significant and widespread danger to life or property in New South Wales”. Other states differ in the language that defines what a State of Emergency means. The Commonwealth presently has legislative responsibility under Section 51 of the Australian Constitution for issues including trade and defense. Conversely, disaster management does involve the Federal Government, but there isn’t legislation for disaster management, and as such have no legal standing over States when crises arise. Oversight of federal emergency management is the responsibility of Emergency Management Australia, however, the “EMA has no mandate, legislation with which to take command. The delivery of EMA functions for the most part is the result of goodwill.”
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Federalism and why Federalism should be the focus as to why emergency powers would negatively tilt the balance of power and why they should remain with the States
Whilst there isn’t an accepted definition of federalism, a fundamental principle of federalism is the use of a Constitution where every power, executive or judicial in a nation is subordinate to and controlled by the constitution”. The Commonwealth of Australia Constitution Act, formulated in 1901 not only ensures there is a just division of powers that remains fair and accountable through the various checks and balances but also upholds the notion of Federalism and ensures that power is shared objectively between the Commonwealth and the states to avoid Commonwealth overreach. This notion was originally perceived by the framers at the Constitutional Convention in the 1890’s where the text and literature within the Constitution was specifically written based on the idea of retaining as much independence from the Commonwealth as possible. The founding fathers believed that federalism was a modern, flexible, and efficient structure that was ideal for meeting the needs of impartially and effectively dividing and limiting power between the State and the Commonwealth to protect individual rights and avoid Government encroachment.
Therefore, if emergency powers were to be transferred to the Federal Government, the Commonwealth would have increased considerable power and influence over the states which would tilt the balance of power shared between both arms of Government, rejecting the pioneers of the Constitution and their intentional restriction of the powers as they believed that a centralized, authoritative Federal Government infringe on states and their responsibilities. A heavily centralized Government was rejected by the framers and ultimately regulated the Commonwealth’s power as they also could push and abuse their power and the boundaries in its law-making functions.
Interpretative changes in the decision-making of High Court Cases, 1920 – Present, and how those changes have led to an increase in the centralization of power
The High Court, designated under Section 71 of the Constitution’s intent, in the words of Dicey are, “Intended to be the interpreters, and in this sense the protectors of the Constitution.” The protectors of the Constitution have in effect compromised the original meaning of the Constitution in favor of a progressive interpretation which has allowed High Court judges the opportunity for the Constitution to be read in a generous perception of what the powers of the Commonwealth within the Constitution are. The desire for increased centralization of power to the Federal Government has spawned from a shift in interpretive techniques in cases within the High Court with a decline of Federalist and originalist thinking in the judgment of cases and the emergence of a literalist approach to the Constitution which has occurred in part over the past 100 years with the Engineers decision in 1920. The ‘Engineers orthodoxy’ has come to mean that by giving the constitutional language a literal meaning, it concludes that it can be interpreted in the widest meaning the words can bear. As a result of the impact of this method, it has seen the near-complete transfer of legislative power to the Commonwealth.
The Engineers case in 1920, which saw the rejection of reserved powers, an important Federalist power which, enunciated in R v Barger, held that certain legislative powers were impliedly reserved to the States, removed implied intergovernmental immunities doctrines in favor of an expansive, rather than restrictive, characterization of federal powers. The removal of reserved powers has seen a noticeable decline in the responsibilities of states with the more recent cases of WorkChoices and Ha demonstrating this.
The contemporary application of literalism has elicited the centralization of power ramifications towards the Federal Government. This is particularly evident in the High Court’s treatment of the corporations’ power under Section 51(xx), allowing the commonwealth to legislate trading, financial or constitutional corporations. The High Court has inadequately attempted and failed to ensure and draw a fine distinction between ‘the need to preserve the existence of the States and the need to preserve the States’ powers’. The dissenting judges, notably Kirby J, in WorkChoices, questioned whether the ever-increasing centralization of power would fatally undermine the nation’s federal balance. Kirby J suggested that ‘similar reasoning sustains the inference that repels the expansion of a particular head of power so that it would swamp a huge and undifferentiated field of State law-making’. Kirby understood that the States must be able to exercise real powers of government independently from the Commonwealth to prevent Federal Governments from having unfettered power in areas including emergencies and the adverse implications it could cause, mainly that the executive has the potential to make it easier for them to enact laws that would in effect create more power for them.
High Court interpretation over executive powers in Section 61 of the Constitution, outlines a variation in interpreting cases. In Pape, the minority and majority expressed discontent with the rise and abuse of executive power when arguing for more power during emergencies. This slight change from an originalist interpretation to a literalist interpretation has meant that the Constitution is read as a statute, meaning that the powers specified in the Constitution under Section 61 can be changed.
Heydon J in his dissenting judgment in Pape asserted that there is a broad and uncertain concept of what an ‘emergency’ may be. If the courts were to defer the opinion of what an emergency was to the executive, this would give ‘an “unexaminable” power to the Executive’, envisioning the potential of executive suppression over the states. What checks and balances would be instituted to ensure the legislation would go beyond their jurisdiction and power? Hayne and Kiefel JJ raised the same trepidations. Both judges argued that if the executive were left to outline what an emergency was, then the executive’s powers would be boundless with no limitations on when they could use those powers. This is especially problematic, as Heydon J pointed out, because so many things seem to be described as an emergency or a crisis.
Thus, the balance of power would tilt too far in favour of the federal government in which there would be undesirable consequences for the states. The ability of the federal government to legislate when the Commonwealth can declare a national emergency would be problematic, as stated by Heydon J that anything can be an emergency. As ‘emergency’ is broad, the government could produce abysmal legislation that expands its power and diminishes the state's original responsibility. It would also diminish the role of federalism within the constitution which effectively limits power to avoid commonwealth encroachment. Most importantly, if the Commonwealth were to take constitutional authority over emergency powers, their actions would be considered unconstitutional as there is no authority for them to legislate or transfer power to them. The only way for that to be rendered as constitutional would be through a referendum or State/Commonwealth negotiations.
The likelihood of State and Commonwealth Negotiations or a referendum
If emergency powers were to be transferred to the Commonwealth, it could be done in two ways. The first is a referendum. Under Section 128 of the Constitution, the process as set out in Section 128 of the Constitution requires that an amendment to the Constitution be:
- Passed by an absolute majority of both Houses of the Federal Parliament, or by one House twice; and
- At a referendum, passed by a majority of the people as a whole, and by a majority of the people in a majority of the states.
Since Federation in 1901, 44 referendum proposals have been put to the Australian people with only eight of those succeeding. Significantly, no referendum has been passed by the people since 1977. As of 2020, 43 years have passed since Australia changed its Constitution. At around one-third of the life of the nation, this is by far the longest period that Australia has gone without amending its Constitution. The problems associated with failed referendums and the time since the last proposed change to the constitution have been the double majority rule. The rule is to ensure that states that have smaller populations aren’t disproportionately discriminated against and as a safeguard to ensure the `maturity of thought in the consideration and settlement of proposals leading to changes. Sir Edward Braddon in 1897 felt the feeling of the convention was ‘that it should be made as difficult as possible to amend the Constitution.’ Supplementary reasons for the failure of passing referendums have been a catastrophe to educate voters on the issues and ownership of the proposals as such, it can be perceived that a referendum would be too difficult to pass emergency power legislation.
Thereby, State/Commonwealth negotiations through referral power is an easier proposition to transfer power to the Commonwealth. Section 51(xxxvii) of the Commonwealth Constitution provides that: ‘Matters referred to the Parliament of the Commonwealth by the Parliament or Parliaments of any State or States, but so that the law shall extend only to States by whose Parliaments the matter is referred, or which afterward adopt the law.’ One instance of successful State/Commonwealth negotiations is the corporations’ powers. Section 51(xx) bestows legislative authority on the Commonwealth Parliament to enact legislation concerning ‘foreign corporations, and trading or financial corporations formed within the limits of the Commonwealth’ corporations. Huddart Parker established a narrow view in that through the reserve powers doctrine, the Commonwealth lacked the power under Section 51(xx) to legislate for the incorporation of companies. Its power was limited to those already formed corporations meeting the description of foreign, trading, or financial corporations. Griffith said that when 51(xx) was read in the context of that doctrine and the context of the powers, 51(xx) had to be read narrowly. He was of the view that 51(xx) only permitted the CTH to control the capacity of a constitutional corporation to enter into but once a corporation had entered into that field of activity, the CTH no longer was able to legislate.
This view was completely rejected in Strickland where the Court unanimously rejected the decision in Huddart, Parker, stating that because it was based on the rejected doctrine of reserved powers doctrine which was abolished in Engineers; the court found that laws with a sufficient connection to the trading activities of constitutional corporations were valid. The Tasmanian Dam case emphasized this transition of power between states and commonwealth which ratified that the Commonwealth had authority under Section 51(20) to legislate the HEC as it had trading activities and as such was a trading corporation.
WorkChoices created a substantially new federal industrial relations regime primarily in reliance on the corporations’ power. The WorkChoices decision in 2006 inflicted a transformation as to how Section 51(xx) of the Constitution is interpreted. Gaudron J expressed that, the ‘regulation of the activities, functions, relationships and the business of a corporation described in that sub-section, the creation of rights, and privileges belonging to such a corporation, the imposition of obligations on it and, in respect of those matters, to the regulation of the conduct of those through whom it acts, its employees and shareholders and, also, the regulation of those whose conduct is or is capable of affecting its activities, functions, relationships or business.’ This has formed a broad view and adopted the ‘object of command test’ that 51(xx) supports a law that regulates all activities of a corporation. The result of this has meant the Commonwealth has legislative authority over 51xx which led to the creation of the Corporations Act 2001 CTH.
Therefore, it can be determined that through the successful transfer of the corporations’ power from the states to the commonwealth, it is plausible that emergency powers could be transferred to the commonwealth.
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