reserved power

Reserved State powers

The reserved State powers, also called reserved powers, is a doctrine reserved exclusively for the states, that is used in the interpretation of the Constitution of Australia. It adopted a 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 abandoned by the High Court in 1920 by the Amalgamated Society of Engineers v Adelaide Steamship Co Ltd.

Examples of State Powers are:

-Reserve intrastate commerce (refers to livestock) -Establish local governments

-Administer Elections (Most important Reserved Power)

-Establish license requirements

-Protect the publics' health and welfare (police and fire departments)

The Reserved Powers Doctrine

In the first two decades of its existence, the High Court adopted a doctrine of reserved State powers" combined with "implied inter-governmental immunities". The essence of the first part of the doctrine was that grants of power to the Commonwealth in the Constitution should be read in a restrictive way so as to preserve as much autonomy as possible for the States. The essence of the second part of the doctrine was that the Commonwealth and States were immune to each other's laws, and could not mutually regulate each other's governmental apparatus: for instance, they could not tax the wages of each other's employees or force each other's employees to submit to compulsory industrial arbitration.

There was little basis in the text of the Constitution for this doctrine although the judges who developed it had all been active members of the Constitutional Conventions and believed that it was implied in the nature of federalism itself.

Basis of this Article from the Case Text

Below is a quote directly from the case which affirms the basis of this article

"Applying these principles to the present case, the matter stands thus:—Sec. 51 (XXXV.) is in terms so general that it extends to all industrial disputes in fact extending beyond the limits of any one State, no exception being expressed as to industrial disputes in which States are concerned: but subject to any special provision to the contrary elsewhere in the Constitution. The respondents suggest only section 107 as containing by implication a provision to the contrary. The answer is that sec. 107 contains nothing which in any way either cuts down the meaning of the expression "industrial disputes" in sec. 51 (XXXV.) or exempts the Crown in right of a State, when party to an industrial dispute in fact, from the operation of Commonwealth legislation under sec. 51 (XXXV.). Sec. 107 continues the previously existing powers of every State Parliament to legislate with respect to[33] State exclusive powers and (2) State powers which are concurrent with Commonwealth powers. But it is a fundamental and fatal error to read sec. 107 as reserving any power from the Commonwealth that falls fairly within the explicit terms of an express grant in sec. 51, as that grant is reasonably construed, unless that reservation is as explicitly stated. The effect of State legislation, though fully within the powers preserved by sec. 107, may in a given case depend on sec. 109. However valid and binding on the people of the State where no relevant Commonwealth legislation exists, the moment it encounters repugnant Commonwealth legislation operating on the same field the State legislation must give way. This is the true foundation of the doctrine stated in D'Emden v. Pedder[34] in the so-called rule quoted, which is after all only a paraphrase of sec. 109 of the Constitution. The supremacy thus established by express words of the Constitution has been recognized by the Privy Council without express provision in the case of the Canadian Constitution (see. e.g., La Compagnie Hydraulique v. Continental Heat and Light Co.[35]). The doctrine of "implied prohibition" finds no place where the ordinary principles of construction are applied so as to discover in the actual terms of the instrument their expressed or necessarily implied meaning. The principle we apply to the Commonwealth we apply also to the States, leaving their respective acts of legislation full operation within their respective areas and subject matters, but, in case of conflict, giving to valid Commonwealth legislation the supremacy expressly declared by the Constitution, measuring that supremacy according to the very words of sec. 109. That section, which says "When a law of a State is inconsistent with a law of the Commonwealth, the latter shall prevail, and the former shall, to the extent of the inconsistency, be invalid," gives supremacy, not to any particular class of Commonwealth Acts but to every Commonwealth Act, over not merely State Acts passed under concurrent powers but all State Acts, though passed under an exclusive power, if any provisions of the two conflict; as they may—if they do not, then ???adit quæstio."

Doctrine Abandoned in 1920 Engineer's Case

The doctrine was swept away in the 1920 decision in the Engineer’s case (after changes in the composition of the Court). The Court now insisted on adhering only to the language of the constitutional text read as a whole in its natural sense and in light of the circumstances in which it was made: there was to be no reading in of implications by reference to the presumed intentions of the framers. In particular, since there is no mention of "reserved State powers," only one express inter-governmental immunity (regarding property taxes: section 114), and, an express provision asserting the superiority of valid Commonwealth laws over inconsistent State laws (section 109), there was no longer any room for the doctrine previously asserted in favour of the States.

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