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Federalism, Responsible Government and the Protection of Private Rights: A New Interpretation of the Limits of the Legislative Powers of the Commonwealth

It has rarely been doubted that the courts, especially the High Court, have jurisdiction over disputes as to the scope of Commonwealth powers. Although the Constitution does not state specifically that these disputes give rise to legal issues or that the courts have jurisdiction over these questions, s 74 of the Constitution, which prevents appeals to the Privy Council from the High Court on inter se questions, which include questions about the scope of Commonwealth powers, without the consent of the High Court, indicates that the High Court at least has jurisdiction over these disputes. However, the Constitution does not set out the basis on which the courts' jurisdiction over these questions rests, nor does it state who has the standing to raise them. In this paper I wish to consider the theoretical basis of the courts' jurisdiction over these questions and consider the impact which different justi:fications for that jurisdiction have on standing. I shall suggest that the prevailing approach to these questions is mistaken because it ignores the reasons for placing limits on Commonwealth power. Most of the limits were designed to ensure a distribution of powers between the Commonwealth and the States. The current approach to questions of justiciability and standing treats these provisions as if they also served the totally different purpose of defining the scope of the government's powers over the people. This approach has two undesirable consequences. It gives standing to individuals to raise questions about the scope of Commonwealth powers, thus enabling them to enforce the federal balance. That is undesirable because, as I shall argue below, individuals have no interest in that balance which is sufficient to warrant the protection of the courts. Second, it allows individuals to use constitutional provisions designed to establish a federal system for the wholly different purpose of protecting their private rights from government interference. I shall argue below that thjs system gives unwarranted protection to private rights, especially property rights. Besides, allowing individuals to enforce the constitutional limits on Commonwealth powers disrupts the normal processes of government. It allows the few who are able to raise constitutional issues to challenge political decisions which affect their private interests, regardless of the fact that those decisions are the outcome of the normal political processes. It takes control over an important political issue, the way in which power ought to be distributed