Interpretation and Cooperative Federalism: Bond v R from a Constitutional Perspective

Abstract

[C]o-operative federalism is not a constitutional term. It is a political slogan, not a criterion of constitutional validity or power. … Where constitutional power does not exist, no cry of co-operative federalism can supply it. If the object lies outside the reach or the effect of what a State or the Common-wealth can constitutionally do, the subject matter is beyond the reach of the legislature. ¹

1

Re Wakim; Ex parte McNally (1999) 198 CLR 511 (‘Re Wakim’) at 556 per McHugh J. See also McHugh J's pertinent comment in McGinty v Western Australia (1996) 186 CLR 140 at 231-32:

“After the decision of this Court in the Engineers' Case, the Court had consistently held, prior to Nationwide News and Australian Capital Television Pty Ltd v The Commonwealth, that it is not legitimate to construe the Constitution by reference to political principles or theories that are not anchored in the text of the Constitution or are not necessary implications from its structure” (emphasis added).

For a discussion of the High Court's alternative “flexible” approach to constitutional interpretation, refer to J McConvill “The United Kingdom is a Foreign Power- Sue v Hill” (2000) 4(2) Deakin L R 151.