Inter-State Commission
Encyclopedia
The Inter-State Commission, or Interstate Commission, is a defunct constitutional
body under Australian law. The envisaged chief functions of the Inter-State Commission were to administer and adjudicate matters relating to interstate trade
. The Commission was established in 1912, abolished in 1950; re-established in 1983, and absorbed into the Industry Commission in 1989.
provides that "[t]here shall be an Inter-State Commission", which would have such powers "as Parliament deems necessary" to administer and adjudicate all matters relating to the Constitutional provisions on interstate trade, and laws made under these provisions.
Section 103 provides that members of the Commission are to be appointed by the Governor-General in Council, for seven years, and whose remuneration must not be diminished during the seven-year tenure.
Section 73 provides that appeals on questions of law
can be made on decisions of the Inter-State Commission in the High Court
under Andrew Fisher
. In 1913, Attorney-General
Billy Hughes
appointed A B Piddington
to the High Court, one of the first ever Labor
appointees. However, he resigned amidst public controversy because of a scandal involving his declared pro-Commonwealth views on the balance of power
, which may have been a condition for his appointment. He was then appointed to the Inter-State Commission. As of 1914, the Inter-State Commission had three commissioners, with Piddington as Chief Commissioner.
This dream was shattered soon after, in 1915, with the Wheat Case. This case involved the interpretation of Section 92 of the Constitution. As that provision dealt with interstate trade, it was first heard by the Inter-State Commission. However, on appeal to the High Court, it was held (New South Wales v Commonwealth (1915)) that the vesting of judicial power in the Inter-State Commission was invalid.
This was because the Constitution implicitly created separation of powers
. Thus, judicial power can only be vested in the judiciary
. Furthermore, Chapter Three of the Constitution provided that a court must have the following features: 1) being vested with judicial power; 2) not being vested with power other than judicial power; 3) having security of tenure, meaning that members are appointed for life (this has since been changed to mandatory retirement at age 70). The Inter-State Commission as it then existed violated all three criteria. Hence, as it was not a part of the judiciary (not a "Chapter Three Court"), it could not be vested with judicial power.
This ruling created continuing controversy, because although the Constitution clearly provides for an Inter-State Commission to "administer and adjudicate", the provision appears to be irreconcilable with the concept of separation of powers
. As a result, the part of Section 73 providing for appeals on questions of law from the Inter-State Commission to the High Court
has been 'dead letter law' for most of the Court's history.
in 1975 with the envisaged role to enquire into transport issues that arose due to the federal structure of Australian government. Issues on the agenda included Victoria
n shipping to the Riverina
; Bass Strait
ferries; and disruptions to Fremantle
shipping to the Eastern States
in 1975. In this second incarnation, the Commission did not have any judicial power, but did have powers of arbitration and adjudication, and of investigation and reporting.
The Commission did not become active due to the dismissal of the Whitlam Government
. In 1984, following the re-election of Labor Party
under Bob Hawke
, the Commission received its appointments and was charged with investigating all matters relating to interstate transport.
It has been said that the Commission sits oddly outside of the three branches of government. It was intended as an institution of federal-state co-operation, but was to be controlled exclusively by the Commonwealth Government. As a result, it has not played any significant role, and certainly has not fulfilled the expectations of the framers of the Constitution. This is often cited as a lesson as to the importance of federal-state cooperation, and of preserving the balance of power between state and federal governments.
A few arguments have also been made, using the story of the Inter-State Commission, to support certain causes. These include advocates for the abolition of State governments, or some other type of radical change to the Australian system of government
. It is also sometimes cited as an example of the inadequacy of the present Australian Constitution, and the importance of either a republic
or a bill of rights
.
Constitution of Australia
The Constitution of Australia is the supreme law under which the Australian Commonwealth Government operates. It consists of several documents. The most important is the Constitution of the Commonwealth of Australia...
body under Australian law. The envisaged chief functions of the Inter-State Commission were to administer and adjudicate matters relating to interstate trade
Domestic market
A domestic market is a financial market. Its trades are aimed toward a single market. A domestic market is also referred to as domestic trading...
. The Commission was established in 1912, abolished in 1950; re-established in 1983, and absorbed into the Industry Commission in 1989.
Legal Basis
Section 101 of the Constitution of AustraliaConstitution of Australia
The Constitution of Australia is the supreme law under which the Australian Commonwealth Government operates. It consists of several documents. The most important is the Constitution of the Commonwealth of Australia...
provides that "[t]here shall be an Inter-State Commission", which would have such powers "as Parliament deems necessary" to administer and adjudicate all matters relating to the Constitutional provisions on interstate trade, and laws made under these provisions.
Section 103 provides that members of the Commission are to be appointed by the Governor-General in Council, for seven years, and whose remuneration must not be diminished during the seven-year tenure.
Section 73 provides that appeals on questions of law
Question of law
In jurisprudence, a question of law is a question which must be answered by applying relevant legal principles, by an interpretation of the law. Such a question is distinct from a question of fact, which must be answered by reference to facts and evidence, and inferences arising from those facts...
can be made on decisions of the Inter-State Commission in the High Court
High Court of Australia
The High Court of Australia is the supreme court in the Australian court hierarchy and the final court of appeal in Australia. It has both original and appellate jurisdiction, has the power of judicial review over laws passed by the Parliament of Australia and the parliaments of the States, and...
First Establishment
The Inter-State Commission was established in 1912, by the Labor GovernmentAustralian Labor Party
The Australian Labor Party is an Australian political party. It has been the governing party of the Commonwealth of Australia since the 2007 federal election. Julia Gillard is the party's federal parliamentary leader and Prime Minister of Australia...
under Andrew Fisher
Andrew Fisher
Andrew Fisher was an Australian politician who served as the fifth Prime Minister on three separate occasions. Fisher's 1910-13 Labor ministry completed a vast legislative programme which made him, along with Protectionist Alfred Deakin, the founder of the statutory structure of the new nation...
. In 1913, Attorney-General
Attorney-General of Australia
The Attorney-General of Australia is the first law officer of the Crown, chief law officer of the Commonwealth of Australia and a minister of the Crown. The Attorney-General is usually a member of the Federal Cabinet, but there is no constitutional requirement that this be the case since the...
Billy Hughes
Billy Hughes
William Morris "Billy" Hughes, CH, KC, MHR , Australian politician, was the seventh Prime Minister of Australia from 1915 to 1923....
appointed A B Piddington
Albert Piddington
Albert Bathurst Piddington was the shortest serving Justice of the High Court of Australia, never actually sitting at the bench. Appointed on 6 March 1913, he resigned on 5 April after opponents questioned his independence.-Early life:Piddington was born in 1862 in Bathurst, New South Wales...
to the High Court, one of the first ever Labor
Australian Labor Party
The Australian Labor Party is an Australian political party. It has been the governing party of the Commonwealth of Australia since the 2007 federal election. Julia Gillard is the party's federal parliamentary leader and Prime Minister of Australia...
appointees. However, he resigned amidst public controversy because of a scandal involving his declared pro-Commonwealth views on the balance of power
Balance of power (parliament)
In parliamentary politics, the term balance of power sometimes describes the pragmatic mechanism exercised by a minor political party or other grouping whose guaranteed support may enable an otherwise minority government to obtain and hold office...
, which may have been a condition for his appointment. He was then appointed to the Inter-State Commission. As of 1914, the Inter-State Commission had three commissioners, with Piddington as Chief Commissioner.
Loss of Judicial Power
The government at the time believed that the Inter-State Commission had powers to "administer and adjudicate" as to "the execution and maintenance ... of the provisions of the Constitution relating to trade and commerce". Most crucially, it was believed that this would include jurisdiction over Section 92, which provides for freedom of interstate trade.This dream was shattered soon after, in 1915, with the Wheat Case. This case involved the interpretation of Section 92 of the Constitution. As that provision dealt with interstate trade, it was first heard by the Inter-State Commission. However, on appeal to the High Court, it was held (New South Wales v Commonwealth (1915)) that the vesting of judicial power in the Inter-State Commission was invalid.
This was because the Constitution implicitly created separation of powers
Separation of powers
The separation of powers, often imprecisely used interchangeably with the trias politica principle, is a model for the governance of a state. The model was first developed in ancient Greece and came into widespread use by the Roman Republic as part of the unmodified Constitution of the Roman Republic...
. Thus, judicial power can only be vested in the judiciary
Judiciary
The judiciary is the system of courts that interprets and applies the law in the name of the state. The judiciary also provides a mechanism for the resolution of disputes...
. Furthermore, Chapter Three of the Constitution provided that a court must have the following features: 1) being vested with judicial power; 2) not being vested with power other than judicial power; 3) having security of tenure, meaning that members are appointed for life (this has since been changed to mandatory retirement at age 70). The Inter-State Commission as it then existed violated all three criteria. Hence, as it was not a part of the judiciary (not a "Chapter Three Court"), it could not be vested with judicial power.
This ruling created continuing controversy, because although the Constitution clearly provides for an Inter-State Commission to "administer and adjudicate", the provision appears to be irreconcilable with the concept of separation of powers
Separation of powers
The separation of powers, often imprecisely used interchangeably with the trias politica principle, is a model for the governance of a state. The model was first developed in ancient Greece and came into widespread use by the Roman Republic as part of the unmodified Constitution of the Roman Republic...
. As a result, the part of Section 73 providing for appeals on questions of law from the Inter-State Commission to the High Court
High Court of Australia
The High Court of Australia is the supreme court in the Australian court hierarchy and the final court of appeal in Australia. It has both original and appellate jurisdiction, has the power of judicial review over laws passed by the Parliament of Australia and the parliaments of the States, and...
has been 'dead letter law' for most of the Court's history.
First abolition
Having lost its judicial power in 1915, the Inter-State Commission's power was restricted to administrative and executive matters. However, as this was a function already served by relevant government departments, the Commission, without any real purpose, lapsed in 1920 when the terms of the initial Commissioners expired and new appointments were not made.Second establishment
The Commission was reconstituted by the Whitlam GovernmentGough Whitlam
Edward Gough Whitlam, AC, QC , known as Gough Whitlam , served as the 21st Prime Minister of Australia. Whitlam led the Australian Labor Party to power at the 1972 election and retained government at the 1974 election, before being dismissed by Governor-General Sir John Kerr at the climax of the...
in 1975 with the envisaged role to enquire into transport issues that arose due to the federal structure of Australian government. Issues on the agenda included Victoria
Victoria (Australia)
Victoria is the second most populous state in Australia. Geographically the smallest mainland state, Victoria is bordered by New South Wales, South Australia, and Tasmania on Boundary Islet to the north, west and south respectively....
n shipping to the Riverina
Riverina
The Riverina is an agricultural region of south-western New South Wales , Australia. The Riverina is distinguished from other Australian regions by the combination of flat plains, warm to hot climate and an ample supply of water for irrigation. This combination has allowed the Riverina to develop...
; Bass Strait
Bass Strait
Bass Strait is a sea strait separating Tasmania from the south of the Australian mainland, specifically the state of Victoria.-Extent:The International Hydrographic Organization defines the limits of the Bass Strait as follows:...
ferries; and disruptions to Fremantle
Fremantle, Western Australia
Fremantle is a city in Western Australia, located at the mouth of the Swan River. Fremantle Harbour serves as the port of Perth, the state capital. Fremantle was the first area settled by the Swan River colonists in 1829...
shipping to the Eastern States
States and territories of Australia
The Commonwealth of Australia is a union of six states and various territories. The Australian mainland is made up of five states and three territories, with the sixth state of Tasmania being made up of islands. In addition there are six island territories, known as external territories, and a...
in 1975. In this second incarnation, the Commission did not have any judicial power, but did have powers of arbitration and adjudication, and of investigation and reporting.
The Commission did not become active due to the dismissal of the Whitlam Government
Australian constitutional crisis of 1975
The 1975 Australian constitutional crisis has been described as the greatest political crisis and constitutional crisis in Australia's history. It culminated on 11 November 1975 with the removal of the Prime Minister, Gough Whitlam of the Australian Labor Party , by Governor-General Sir John Kerr...
. In 1984, following the re-election of Labor Party
Australian Labor Party
The Australian Labor Party is an Australian political party. It has been the governing party of the Commonwealth of Australia since the 2007 federal election. Julia Gillard is the party's federal parliamentary leader and Prime Minister of Australia...
under Bob Hawke
Bob Hawke
Robert James Lee "Bob" Hawke AC GCL was the 23rd Prime Minister of Australia from March 1983 to December 1991 and therefore longest serving Australian Labor Party Prime Minister....
, the Commission received its appointments and was charged with investigating all matters relating to interstate transport.
Second abolition
In 1989, the Commission was abolished with its functions transferred to a new Industry Commission, a statutory body directly responsible to the Commonwealth Government.Relevance today
Despite the Commission's apparent importance in the scheme of government envisaged by the framers of the Australian Constitution, it is largely unknown to most Australians today. The Inter-State Commission is mentioned often in two contexts: as a lesson from the past, and as a suggestion for change.It has been said that the Commission sits oddly outside of the three branches of government. It was intended as an institution of federal-state co-operation, but was to be controlled exclusively by the Commonwealth Government. As a result, it has not played any significant role, and certainly has not fulfilled the expectations of the framers of the Constitution. This is often cited as a lesson as to the importance of federal-state cooperation, and of preserving the balance of power between state and federal governments.
A few arguments have also been made, using the story of the Inter-State Commission, to support certain causes. These include advocates for the abolition of State governments, or some other type of radical change to the Australian system of government
Government of Australia
The Commonwealth of Australia is a federal constitutional monarchy under a parliamentary democracy. The Commonwealth of Australia was formed in 1901 as a result of an agreement among six self-governing British colonies, which became the six states...
. It is also sometimes cited as an example of the inadequacy of the present Australian Constitution, and the importance of either a republic
Republicanism in Australia
Republicanism in Australia is a movement to change Australia's status as a constitutional monarchy to a republican form of government. Such sentiments have been expressed in Australia from before federation onward to the present...
or a bill of rights
Bill of rights
A bill of rights is a list of the most important rights of the citizens of a country. The purpose of these bills is to protect those rights against infringement. The term "bill of rights" originates from England, where it referred to the Bill of Rights 1689. Bills of rights may be entrenched or...
.