CASE ADCOMMENT
TRETHOWAN’S CASE RECONSIDERED
CONSTITUTIONAL LAW – AUSTRALIA –
COURT, LEGISLATURE, AND EXECUT-
IVE AND THE LIMITS OF THE JUDICIAL PROCESS – TRETHOWAN’S CASE1,
AND THE NEW SOUTH WALES CONSTITUTIONAL CRISIS OF 1931-2,
RECONSIDERED.
A recent decision of the High Court of Australia, Hughes and Vale Ply. Ltd.
v. Gair,2 is interesting among other things for some remarks let fall by the
Chief Justice, Sir Owen Dixon, as to Trethowan’s case in which he had
participated a generation before while an associate Justice of the High Court.
Trethowan’s case, concerning as it did, in its substantive aspects, the law-
making powers of the Parliament of New South Wales, the legislature of a
member State within the Australian federal system, was largely confined in
interest to Australian students for a number of years,3 but then blossomed
overnight into some greater prominence as a result of being adopted by the
Appellate Division of the Supreme Court of South Africa in support of its
decision recently in the first “Colored Voters” case, Harris v. Minister of the
Interior,4 which has seemed to some commentators, over and beyond the
South Africa issues, to offer some more far-reaching propositions as to the
limits to the law-making powers of the legislatures of the independent, self-
governing member-countries of the Commonwealth of Nations.
The Hughes and Vale case, now passed on by the High Court of Australia,
arose out of a Bill passed by the Legislature of the State of Queensland
continuing in force a licensing system already provided under existing State
lAttorney-General (New South Wales) v. Trethowan (1931), 44 C.L.R. 394 (High
Court); (1931), 47 C.L.R. 97 (Privy Council).
2Reported in (1955), 28 Aust. L. J. 437. Discussed in Cowen, note, (1955), 71 I Q.
Rev. 336; Kahn, note, (1955), 72 So. Afr. L. J. 201.
3c/f the remarks of Professor Sawer, in discussing it for British readers a decade after
the date of decision: “It is necessary to recall the facts . . . because they are already
forgotten by most people outside New South Wales.” Sawer, “Injunction, Parliamentary
Process, and the Restriction of Parliamentary Competence.”
(1944), 60 L. Q. Rev. 83.
4(1952), 2 S. A. L. R. 428 (A.D.) For an alternative thesis to justify the continued
binding force at the present day of the “entrenched clauses” of the South Africa Act,
1909, (the South African Constitution), on the basis of the existence of a local South
African root (or Grundnorm) for the Constitution, see McWhinney, “The Union Parlia-
ment, the Supreme Court and the “Entrenched Clauses” of the South Africa Act,” (1952),
30 Can. Bar Rev. 692, 718-720; Griswold, “The Demise of the High Court of Parliament
in South Africa,” (1953), 66 Harv. L. Rev. 864, 870-1.
5The Legislature of Queensland, alone of the Australian States, is unicameral. A
Labour administration some thirty years ago induced the State Governor of the day to
appoint enough of its own supporters to the then purely nominee Upper House to secure
No. 1
CASE AND COMMENT
legislation in respect to inter-State traffic by roads in Queensland. The unusual
feature of the case, as presented to the High Court of Australia, was that
the plaintiffs, without waiting for the Bill to receive Royal assent, immediately
made a motion for an ex parte injunction restraining first the Speaker of the
State Legislative Assembly and permanent officers of the State :House, and
second the State Premier and other members of the State Cabinet, from
presenting the Bill in question to the State Governor for Royal assent, until
further order.
In speaking on behalf of a unanimous Court which refused the application
for injunction, Chief Justice Dixon noted that while such an application was
“not unprecedented”, it was at least “very exceptional. We do not’think it
should be granted on this occasion or later or in any case.”‘0 The Chief Justice
pointed out that in the present case the plaintiffs, once the Bill was assented
to, would have their remedy, and that if a prima facie case were then made
out, the Court would not be slow to intervene.7
Having been reminded by counsel in argument that in Trethowan’s case
the Full Court of the New South Wales Supreme Court had granted an
ex parte injunction restraining the President of the Legislative Council (Upper
House) of New South Wales and also members of the State Cabinet of New
South Wales from presenting, for Royal assent, two measures passed by the
State Legislature, and that the High Court of Australia had done nothing to
disturb this injunctive method of proceeding on appeal,8 Chief Justice Dixon,
of necessity, was at some pains in his opinion to limit and distinguish that case.
Chief Justice Dixon pointed out that when, in Trethowan’s case, the High
Court granted special leave to appeal to itself from the State Supreme Court,
it had ordered that that appeal be limited to the substantive issue of the law-
making powers of the State Legislature as purported to be employed in the
two Bills in question, thus necessarily excluding from the High Court’s con-
sideration the other (and perhaps prior) issue of whether the remedy actually
sought, the injunction, could be availed of by the original plaintiffs at that
stage (that is, prior to Royal Assent being given to the two Bills). In ex-
planation of his own part in the 1931 decision in Trethowan’s case, in which
he wrote a concurring opinion, Chief justice Dixon commented: “I can say
from my own personal recollection that when the Court limited the grant of
special leave so that the question [of the availability of an injunction to
passage of a Bill abolishing the Upper House. A simple majority in each House of the
State Legislature was all that was necessary to effect an amendment of the Queensland
State Constitution. c/f the parallel action by a Labour administration in the neighbouring
State of New South Wales in 1930 to abolish the then nominee Upper House of that
State (infra.).
6(1955), 28 Aust. L. J. 437, 438.
71bid.
8Trethowan v. Peden (1930), 31 S. R. (N.S.W.) 183 (Supreme Court of New South
Wales); Attorney-General (New South Wales) v. Trethowan (1931), 44 C. L. R. 394
(High Court).
McGILL LAW JO URNAL
[Vol. 2
restrain presentation of a Bill for the Royal assent] should not be argued,…
it was not because the Court was of opinion that the decision of the Supreme
Court on that particular point was right, but because it was thought in-
convenient to allow a procedural question of that sort to intrude itself into
such a matter calling for urgent and definite decision. For myself I have long
entertained a doubt as to the correctness of the decision of the Full Court of
New South Wales in that case even on the terms of [the State Constitution] .”
The Chief Justice went on: “Because of the doubt I then entertained, which
I still entertain as to the correctness of that decision, in my own judgment
delivered in this Court in Trethowan’s Case (1931), 44 C.L.R. at p. 426,
in speaking of the hypothesis I put of a similar Bill coming before the United
Kingdom Parliament, I used the expression that if it was found possible, as
appears to have been done in this appeal, to raise for judicial decision the
question whether it was lawful to present a Bill for that assent, the Courts
would be bound to pronounce it unlawful to do so.”‘ 1
The authoritative doubts thus expressed by Chief Justice Dixon as to
Trethowan’s case are interesting, not merely because of his own part as a
member of the Court majority in that decision, but also because of his dominant
role as Chief Justice and in terms of his own personality also, on the present
bench of the High Court. It is appropriate to comment at this stage on the
background facts to Trethowan’s case. In 1929, the New South Wales Parlia-
ment, a bicameral legislature, had a nominee Upper House composed of
members holding office for life and appointed by the State Governor.11 The
Bavin (Conservative coalition) Ministry, whose term of office was drawing
to a close and which appeared unlikely, from the drift of by-election voting,
to be re-elected, passed an Act in 1929 amending the State Constitution to
provide that no Bill to abolish the Upper House should become law until, in
addition to securing passage through both Houses of State Parliament (the
amending procedure for all provisions of the State Constitution) it had also
9(1955), 28 Aust L. J. 437, 438.
1Olbid.
IlIt was still open to controversey, in 1929, whether a constitutional convention had
yet developed requiring the State Governor to act on the advice and direction of the State
Premier of the day in the making of appointments to the Upper House. During the first
Lang Labour Party government in New South Wales (1925-27), the State Governor, Sir
Dudley de Chair, had appointed 25 extra Labour supporters to the Upper House so as to
enable the passage of a Bill abolishing the Upper House. (A simple majority in each
House was all that was necessary to effect an amendment to the State Constitution). The
Bill failed to pass the Upper House, however, owing in part at least to the defection of
several Labour Party supporters. The State Premier then requested further appointments
which would secure for the Labour Party a definite majority in the Upper House, but
the State Governor, after consulting with the then Secretary of State for the Dominions
(Mr. Amery) declined to act. The State Cabinet insisted throughout, though unsuccess-
fully, that the State Governor had no discretion at all but was bound to act on the advice
of his Ministers, in the matter. See generally, Evatt, The King and His Dominion
Governors (1936), p. 121 et seq.
No. 1]
CASE AND COMMENT
been approved by the electorate of New South Wales at a public referendum
held on the question. 12 The Bavin Government then went to the polls and,
as had been expected, was defeated. A Labor government under Mr. J. T.
Lang took office and promptly, in 1930, introduced two measures, which were
passed by both Houses of the State Parliament. The first measure purported
to repeal the 1929 constitutional amendment (passed by the Bavin govern-
ment) requiring a referendum as a condition precedent to the abolition of the
Upper House; the second measure then abolished the Upper House.’3 The
decision of the High Court of Australia,14 which was reached once the question
of whether an injunctive remedy could be availed of prior to presentation of the
Bills for Royal assent had been by-passed, was given by a three-to-two vote,
(Rich, Starke, and Dixon JJ. making up the majority, and Gavan Duff C.J.
and McTiernan J. dissenting). The High Court majority held that the re-
quirement of a referendum as a condition precedent to the abolition of the
Upper House (inserted by the 1929 constitutional amendment) was a “man-
ner and form” requirement binding on the State legislature from the time of
passage of the 1929 amendment in terms of section 5 of the Colonial Laws
Validity Act, 1865.15
Sir Owen Dixon’s current reservations as to the correctness of the majority
approach in Trethowan’s case to the procedural issue are important, especially
in view of the closeness of the vote in the High Court in Trethowan’s case;
though curiously enough neither of the two dissenting justices, Gavan Duffy
12The procedure for amendment of the federal Constitution of Australia (s. 128 of the
Australian Constitution), provides that proposals for amendment are to be initiated by
simple majorities in the National Parliament and then ratified by popular majorities in a
majority of the States at a public referendum held throughout Australia. The referendum
machinery was borrowed by the Australian constitution-makers from the Swiss con-
stitution, but in practice it has proved to be in Australia a veritable graveyard of proposals
for constitutional amendment, whatever
the nature of the proposals and whatever
political parties have advanced them. See generally, my study, “Amendment of the Con-
stitution”, in Bowie and Friedrich eds., Studies ia Federalism (1954), p. 790 et seq.
13 Though Premier Lang had a very large majority in the Lower House,,he was in a
minority in the Upper House. The Upper House’s acquiescence in the passage of the two
measures can in part perhaps be attributed to awareness of the possibilities that the State
Governor of the day, Sir Phillip Game, might yield to the pressure of the new Premier’s
very large electoral mandate and agree to the “swamping” of the Upper House by ap-
pointment of Labour Party supporters, remembering that a similar threat had caused the
House of Lords to surrender to the Asquith government in the English constitutional
crisis of 1910-11 that resulted finally in the passage of the Parliament Act, 1911.
14(1931), 44 C. L. R. 394 (High Court) ; confirmed by the Privy Council on appeal,
(1931), 47 C. L. R. 97 (P.C.).
1528 and 29 Vict. c. 63. Section 5 provides: “Every representative legislature shall,
in respect to the colony under its jurisdiction, have, and be deemed at all times to have
had, full power to make laws respecting the constitution, powers and procedure of such
legislature, provided that such laws shall have been passed in such manner and form as
may from time to time be required by any Act of Parliament [i.e. the United Kingdom
Parliament] … or colonial law for the time being in force in the said colony.”
McGILL LAW JOURNAL
(Vol. 2
C.J. and McTiernan J. rested his arguments on this point but chose instead
to follow the majority justices into debate on the substantive issue. Now, in
contrast to the High Court of Australia the United States Supreme Court,
as Mr. Justice Frankfurter is never slow to remind his brother justices, reaches
substantive issues last, not first; the Court must not anticipate a constitutional
question, and the opening enquiry must in every instance be directed to
procedural matters, whether the plaintiff is properly in Court.1’ By these
standards, the High Court of Australia in Trethowan’s Case (and for that
matter the Privy Council on appeal) was extremely hasty to rule on the
constitutional issue –
the law-making powers of the New South Wales
Parliament. Sir Owen Dixon’s new sensitiveness on the procedural issue no
doubt stems from his close personal association with Mr. Justice Frankfurter,
first formed during a Wartime ambassadorship in Washington. The High
Court of Australia has over the past decade, in marked contrast to its ex-
tremely positivist approach in other matters, shown itself very ready to adopt
a flexible approach to procedural issues and to shape remedies so as to allow
the speediest and fullest ruling on substantive, policy questions: this disposi-
tion on the part of the High Court, manifesting itself in its increasing approval
of the recourse to the declaratory judgment and the injunction as public law
remedies, 17 stands, as we have noted, in sharp contrast to the strictness of the
United States Supreme Court’s approach in this regard, and goes indeed a
long way towards approaching the Canadian Supreme Court’s freedom in
ruling on policy questions, uncluttered by procedural issues, through the ‘Ad-
visory Opinion.’ Correspondingly, however, it may explain the increasing
and, in the writer’s view, unfortunate abstractness of the High Court’s con-
stitutional opinions over that same time period,’ 9 since it means that issues
are ruled on remote from the concrete setting of social and economic facts in
which they arise. 20 On no occasion since 1931, however, has the High Court
16 The classic statement of the U. S. Supreme Court’s position in this regard is still
the dicta by Brandeis J. in Ashwander v. T.V.A.
(1935), 297 U.S. 288. For a recent
strong re-affirmation of these principles, see Warren C. J. for the Court in Peters v.
Hobby (1955), 75 Sup. Ct. 790, at 793-4.
_1See generally Friedmann, “Declaratory Judgment and Injunction as Public Law
Remedies”, (1949), 22 Aust. L. J. 446.
‘ 8 The High Court of Australia, for example, has not hesitated to grant a declaratory
judgment at the suit of a State Attorney-General against the National government to
restrain it from giving effect to an unconstitutional act before it was proclaimed. At-
(1945),
torney-General for Victoria v. Commonwealth (Pharmaceutical Benefits Case),
71 C. L. R. 237.
19c/f the cogent remarks in this regard of a thoughtful American observer, Freund,
in Cahn ed., Supreme Court and Supreme Law, (1954), at pp. 87-8.
2 0 There are advantages, in this regard, of seeing an Act in working operation before
passing on the issue of its constitutionality. The decision of the United States Supreme
Court in 1935 in Schechter Poultry Corp. v. United States (the so-called “sick chicken”
case) (1935), 295 U.S. 495, to invalidate President Roosevelt’s N.I.R.A. was undoubtedly
CASE AND COMMENT
returned to the practice which it, in effect, sanctioned for itself in Trethowan’s
case of ruling on a measure prior even to its submission for Royal assent.2 ‘
In passing it may be noted that quite apart from the taint of illegitimacy
now attaching to the preliminary, procedural aspects of the High Court’s
ruling in Trethowan’s case, the substantive aspects of the decision have also
come under fire in recent years. Professor Friedmann 22 has pointed to some
of the logical consequences of the majority holding in that case that the
additional requirement of popular referendum approval to any measure abolish-
ing the Upper House is a “manner and form” provision binding on the State
legislature for the future. Suppose that the Bavin government in 1929 had
required not merely approval at a popular referendum as a condition pre-
requisite to constitutionality of the measure, but approval by an extra-
ordinary majority, say eighty per cent or for that matter one hundred per
cent of the electorate. Under such conditions, obviously, amendment of the
State Constitution to abolish the Upper House would effectively become im-
possible, and yet, flowing from the majority holding in Trethowan’s case, it
would be a “manner and form” requirement binding on the State Legislature.
The way out of this dilemma is perhaps provided by the reflective dissenting
opinion of Mr. Justice McTiernan of the High Court, in Trethowan’s case.23
Mr. Justice McTiernan drew a distinction between a requirement as to
“manner and form”, which in his view must be followed by the State Legis-
lature, and a requirement as to substance to which no legislative majorities
could bind their successors. 24
This, it is submitted, is a necessary distinction to be made by the Courts
in the future if the extreme consequences flowing from the unqualified majority
holding in Trethowan’s case are to be avoided in the future.2 5
The real difficulty with Trethowan’s case, however, is that in retrospect
it looks like a piece of ad hoc decision-making by the judges, designed to
counter the (according to general opinion today) rather incompetent and
arrogant administration that happened to hold office in the State of New
assisted by the fact that the scheme had been in operation by that time for several years
and been clearly demonstrated, in its key organizational feature of corporatist, industry
associations, to be a highly inefficient form of economic planning.
21Note in this regard, however, the reservations as to the procedural aspects of Trethow-
an’s case expressed by Professor Sawer as early as 1944. Sawer, op. cit. (1944), 60
L.Q. Rev. 83, 85-6.
22″Trethowan’s Case, Parliamentary Sovereignty, and the limits of Legal Change”,
(1950), 24 Aust. L. J. 103.
23(1931), 44 C.L.R. 394, at p. 433 et seq.
24Ibid, pp. 442-4.
25
Jt is not, of course, necessary to agree with McTiernan J.’s factual application of his
test in the instant case, in effect that the 1929 Act’s requirement of approval at a public
referendum (by simple majority of the popular vote) is a requirement of substance and
not of “manner and form” and therefore not binding on the State Legislature for the
future. c/f the views on this point of Friedmann, (1950), 24 Aust. L. J. 103, at p. 106.
McGILL LAW JOURNAL
[Vol. 2
South Wales at that time. The stormy career of the Lang administration
which began in 1930 and ended abruptly in mid-1932 with its dismissal by
the State Governor of the day2″ was productive of at least three distinct types
of constitutional controversy –
first as to the limits, if any, to the legislative
competence of the Parliaments of the various member-States of the Australian
federal system (the substantive issue in Trethowan’s case); second, the
extent to which the prerogative powers, especially as to dissolution, still in-
hered as late as 1932 in the Governors of the Australian States (the con-
troversy as to the constitutional propriety of the State Governor, Sir Phillip
Game’s, dismissal of Premier Lang in 1932); thirdly, the extent to which,
under the Australian federal system, there exists a primacy of the federal
(National) government over the governments of the member-States, particul-
arly in matters arising out of or concerning financial policy. The first two types
of controversy raise what one might call (in the American sense) separation-
of-powers questions having to do with the powers inter so of the various
arms of government.
The remaining type of controversy is of a different nature, involving
questions of federalism and the division of legislative powers between central
and local law-making authorities. Since, unlike the first two categories of
matters, there was no possible analogy to be derived here from United King-
dom practice, the answer would have to be worked out either by comparison
with other federal systems or else settled in a purely Australian context. The
background facts, though complex, revealed a clear conflict of views as to the
nature and powers of State Governments within the Australian federal system.
Under arrangement between the federal government and the Australian
States in 1927, it had been agreed to centralize in the federal government
arrangements for the overseas borrowing of money and floating of loans by
the various Australian States, the federal government in return assuming
liability for those external State debts. This agreement had been concretised
as a formal Amendment, (s. 105A), to the federal Constitution of Australia,
the federal government being given, under the terms of this constitutional
amendment, power to make laws for the “carrying out” by the parties of the
agreement (s. 105A ss. 5). Premier Lang of New South Wales had advocated,
early in 1931, at the Conference of State Premiers with the federal Govern-
ment, (at that time a Labor Government headed by Prime Minister Scullin,
whose financial policies to counter the Economic Depression Premier Lang
opposed as too cautious), that the Australian governments should refrain
from paying interest to British bondholders ‘until Britain had dealt with the
2 GThe action of the State Governor (Sir Phillip Game) in dismissing the Lang Ministry
in 1932, has been trenchantly criticised, Evatt, The King and His Dominion Governors
(1936), p. 157 et seq. All subsequent practice by State Governors within Australia and
by the Governors-General of Australia has accorded with the thesis that the prerogative
powers as to dissolution are to be exercised strictly on the advice, and only on the
advice, of the State Premier or Prime Minister concerned.
CASE AND COMMENT
Australian overseas debt in the same manner as she settled her own foreign
debt with America’.2 7 Early in 1932, the federal government (this time a
Conservative coalition ministry which had defeated the Scullin ministry at
the federal general elections held in December, 1931) arranged for the passage
of legislation providing for the seizure of the revenues of the New South
Wales State government for the purpose of meeting the liability of that State
for interest payments to Overseas bondholders. This Federal legislation was
upheld by the High Court of Australia on April 6th, 1932, as being within
the legislative power to “carry out” the Federal-State Financial Agreement of
1927, conferred upon the Federal Parliament under the new section 105A
of the Federal Constitution.28 The next action by the Federal Government was
to require the various trading Banks to pay over to the federal government
the amounts of balances standing to the credit of the ‘New South Wales State
Government, in order to apply these sums towards the discharge of State
interest liabilities to overseas bondholders. The High Court of Australia on
April 22nd, 1932, upheld this action, ruling in addition that the federal
government might seize, as well as the ordinary revenues of the State deposited
with its bankers, money received by the State under certain statutes and
orders of Court for specific purposes and to meet particular claims, for
example estates administered by the Master in Lunacy, the Public Trustee,
and the Registrar of Probates. 29 On May 13th, 1932, the Lang Ministry, as
already noted, was dismissed from office by the State Governor, Sir Phillip
Game.
In reviewing, with all the advantages of hindsight, the events of the exciting
and stormy two years of the Lang Ministry from its election in 1930, to its
dismissal in 1932, and attempting to assess its full constitutional implications,
the following submissions are now made :-
(1) The drastic legislative action taken by the federal government of
Australia to enforce the continuance by the State Government of New South
Wales of payment of interest on State debts to Overseas bondholders was
correctly upheld by the High Court of Australia. The financial plans to
counter the effects of the World Economic depression upon AustraliaO0 of
both federal ministries ( the Scullin Labor ministry which was defeated in
December, 1931, and the Lyons Conservative coalition which followed it)
27Quoted in Evatt, op. ci., at p. 157.
2 8New South Wales v. Commonwealth (No. 1), (1932), 46 C.L.R. 155, (Gavan Duffy
C.J. and Evatt J. dissenting). Application for certificate to appeal to the Privy Council
refused by High Court, New South Wales v. Commonwealth (No. 2), (1932), 46 C.L.R.
235 (Evatt J. dissenting).
29New South Wales v. Commonwealth (No. 3), (1932), 46 C.L.R. 246 (Gavan Duffy
G.J. and Evatt J. dissenting).
8 0The strength of the impact of the depression upon Australia at that time lies in the
fact that Australia was still predominantly a primary producing country, and world prices
for both wool and wheat, which were the backbone of the Australian economy, had
collapsed altogether.
McGILL LAW JOURNAL
[Vol. 2
which were in office during Mr. Lang’s term of office as State Premier from
1930 to 1932, involved Australia’s maintaining its Overseas financial obliga-
tions. On pragmatic grounds, it is submitted, a single policy for Australia in
this area was vital, and in any conflict between State and National policies
the National policy must prevail. Such an attitude would involve, of course,
no necessary ruling on the ultimate economic merits of either the Scullin-
Theodore programme, the Lyons’ policies, or the so-called “Lang plan”: it
rests instead on the technological argument that in the shaping and direction
of over-all financial policy in a federal system, the federal or central govern-
ment, in case of conflict, must have primacy.
(2) The action of the State Governor, Sir Phillip Game, in dismissing the
Lang ministry in May, 1932, was unwise and also, it is suggested, improper.
Even assuming Sir Phillip Game was influenced by policy arguments, of the
type we have noted already, that the federal government must be given primacy
in its financial programme, the fact remains that by the time he acted the High
Court had already established this point quite decisively in favour of the
federal government and there was no reason to assume that the court could
not cope with any further problems in this regard that might arise in the
future. Being limited to a three year term of office anyway, the Lang ministry
had another year to go before facing the electors of New South Wales. In
intervening as he did, it is submitted, Sir Phillip Game made a regrettable
departure, with no substantial policy considerations to justify it, from the
English and Australian conventions which had developed by that time to the
effect that the prerogative powers are to be exercised on the advice, and only
on the advice, of the government of the day concerned.31
32Hughes and Vale Ply. Ltd. v. Gair, reported in (1955), 28 Aust. L. J. 437, (supra).
3 3 “In times of political passion, dishonest or vindictive motives are readily attributed
to legislative conduct and as readily believed. [Footnote omitted] Courts are not the place
for such controversies. Self-discipline and the voters must be the ultimate reliance for
discouraging or correcting such abuses.” Per Frankfurter J., for the Court, Tenney v.
Brandhove (1951), 341 U.S. 367, at p. 378.
(3) The intervention by the High Court of Australia in Trethowan’s case
in 1931, having regard to its weakness on the preliminary, procedural issue,
was, it is submitted, unduly hasty, and Sir Owen Dixon’s reservations today32
about the High Court’s action in that case are to be welcomed on that account.
Apart, however, from any purely procedural deficiencies in the High Court’s
action, a further question arises as to the wisdom of judicial involvement in
narrow partisan struggles of the nature of the contest over the New South
Wales Upper Housem 3 Was there in this regard any special long-range
significance in the whole affair requiring a Court ruling at that stage, or was
81For a general discussion of the scope of prerogative powers as to dissolution today,
see my remarks, “The Governor-General” (1955), 33 Can. Bar Rev. 505. “The Head of
the
State (King, Governor-General, President)
(University of
Scope of Prerogative Powers To-day.”
Delhi, Faculty of Law) p. 112.
in the Commonwealth Countries –
(1955), Vyavahara Niruaya
CASE AND COMMENT
No. 1]
the end result of the Court’s involvement merely to preserve (for such time
as the Lang government held office) one cheap political stratagem (the Bavin
government’s death-bed legacy of 1929) over another cheap political stratagem
(the Lang government’s two bills of 1930) .F’ What, of course, we are con-
cerned with now are the limits, if any, that Courts should impose on them-
selves in the exercise of the power of judicial review, a matter that has been
the subject of considerable judicial introspection in the United States but
very little, if at all, in the Commonwealth Countries. The tendency with the
contemporary United States Supreme Court has been to limit its judicial
activism to the areas of its “special competence” :35 the phrase involves, of
course, something of a covert value judgment but it is still useful as a com-
prehensive term covering the two main areas of constitutional law in which
the Supreme Court has felt a special obligation to intervene in recent years –
the umpiring of the federal system 6 (division of legislative powers – member-
States against Nation and Nation against member-States) ; and the preserva-
tion of the liberal way37 (maintenance of civil liberties – Man against the
State).38 Sir Owen Dixon’s arrire pensge in the High Court of Australia does
not affect the substantive issues of Trethowan’s case, but to the extent that it
goes beyond the mere taking of a procedural point it may foreshadow a new
Frankfurterian notion of the propriety and practical utility at times of judicial
self-restraint that so far has not been evident in the High Court’s approach to
the Australian Constitution.
EDWARD McWHINNEY*
34Responding to the Labour Party’s bitter criticisms of the New South Wales Upper
House, the new Conservative ministry under Mr. Stevens, which replaced the Lang
ministry in 1932, in one of its earliest actions took steps to reform the Upper House at
the two points at which it was most vulnerable to attack –
the life-time tenure of its
members and the strictly nominee character of its membership, both these provisions
being abolished in favour respectively of a twelve-year term of office and of a form of
indirect election to membership through an electoral college consisting of the members
for the time being of the Upper and the Lower Houses of the State Parliament. Fourteen
unbroken years of Labour administration in New South Wales since 1941 have sub-
stantially converted the Upper House into a haven for retired politicians and Union
officials, and with the recent provision of a financial allowance for members of the Upper
House there no longer seems to be much sentiment (at least among any of the members
of the Upper House) for its abolition.
85c/f Hamilton and Braden, “The Special Competence of the Supreme Court”, (1941),
50 Yale L. 3. 1319.
36Braden, “Umpire to the Federal System” (1942), 10 U. of Chi. L. Rev. 27; Freud,
“Umpiring the Federal System” (1954), 54 Col. L. Rev. 561.
87c/f the well-known dicta of Stone J. in U.S. v. Carolene Products (1938), 304 U.S.
144, at p. 152 f.n. 4.
28The major example of the U.S. Supreme Court’s venturing outside these two areas
in the last few years, the Steel Case (Youngstown Sheet and Tube Co. v. Sawyer (1952),
343 U.S. 579), which involved classical separation-of-powers considerations, is not gener-
ally considered one of the happier examples of the U.S. Supreme Court at work. Note
in this regard the penetrating criticisms by Freud, “The Year of the Steel Case” (1952),
66 Harv. L. Rev. 89.
*Associate Professor of Law, University of Toronto.
