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Article Excerpt
[Discussion about the relationship between law and politics in Australian constitutional law is often conducted in abstract terms. McCawley's Case presents a unique opportunity to examine the relationship between law and politics in the context of a very rich set of specific circumstances, and to do so in a manner which distinguishes between the different dimensions of 'politics' and 'law', and the complex ways in which they can interrelate, With these objectives in mind, this article undertakes three tasks'. First, it seeks' to place McCawley's Case within the personal, political and legal contexts in which it arose, and to show why the case provides a particularly valuable opportunity to test our understanding of the relationship between law and politics. Second, the article aims to identify and distinguish the various political elements of the case in their personal, partisan and ideological dimensions, as well as the competing conceptions of law and constitutionalism upon which the judges relied. Third, the article evaluates the role of law, politics and constitutionalism in the case, arguing that rather than being purely legal or reductively political in character, the decisions are best understood as reflecting contrasting theories concerning the ideal purposes' of constitutional law and the appropriate location of constituent power.]
CONTENTS I Introduction II Background A Political Context B Constitutional Background C Legal Proceedings D Previous Case Law 1 Cooper 2 Taylor 3 Summary III Judicial Reasoning A Legal Arguments B Constitutional Theory 1 Fundamental Law 2 Parliamentary Sovereignty 3 Limits of Constitutional Theory C Political Dimensions 1 Personalities, Partisanship and Ideology 2 Politico-Constitutional Theory IV Conclusions As to my own little matter, the Court reserved its decision ... I have no doubt that the decision will be adverse--the atmosphere of hostility, political, professional, and personal, certainly favours such a result. --Thomas William McCawley to Henry Bournes Higgins, 2 February 1918 (1)
I INTRODUCTION
The appointments of Thomas William McCawley, first as President of the Queensland Court of Industrial Arbitration ('Queensland Arbitration Court') in early 1917, then as a judge of the Supreme Court of Queensland in late 1917, and finally as Chief Justice in 1922, were a series of decisions destined to provoke political controversy. (2) The establishment of the Queensland Arbitration Court was a central plank of the radical reforms proposed by the newly formed Labor Government of Thomas Joseph Ryan, (3) and McCawley was hand-picked as someone having both the requisite technical skills and political temperament for appointment as the Queensland Arbitration Court's first President. (4) Major changes, not only to industrial regulation, but also to the political and constitutional structure of the State of Queensland, were imminent--nothing less than the restructuring of the Supreme Court, and the abolition of the Legislative Council, which occurred in 1922. (5) In this context, McCawley's appointment to the Supreme Court and his later elevation to Chief Justice were seen by detractors to be part of an attempt by the Labor Government to change the political profile of the Court, and to raise the status of the Queensland Arbitration Court to a comparable level. (6)
When, in December 1917, McCawley presented to the Supreme Court a commission appointing him a judge of that Court, two leading Queensland King's Counsel, Arthur Feez and Charles Stumm, contested the validity of the appointment on what were said to be 'purely legal and constitutional grounds'. (7) Their most significant arguments were that the appointment was contrary to the Constitution Act 1867 (Qld) ('Constitution Act'), and that the Queensland Parliament could not legislate inconsistently with this Act unless the relevant provision in the Act had first been deliberately and expressly repealed. (8) Although Feez and Stumm admitted that the Parliament certainly had the power to amend constitutional statutes such as the Constitution Act, their contention was that it could not do so by implication--that is, simply by passing an Act which was inconsistent with the Constitution Act. (9)
At first instance, a majority of the Full Court of the Supreme Court upheld almost all of the constitutional and other legal objections raised against McCawley's appointment, (10) While much of the Court's reasoning might readily be characterised as being 'purely legal' in nature, as will be seen, the Court was quite prepared to criticise both the Ryan Government (11) and the legislature (12) in a number of significant respects. On appeal, a majority of the High Court upheld the decision of the Supreme Court. (13) Their reasoning was again couched in strictly legal terms, yet once more, the judges were willing to make a number of observations of a colourably 'political' character. (14) However, when the matter was taken to the Judicial Committee of the Privy Council, the Australian decisions were overturned, (15) their Lordships unequivocally finding that the Queensland Parliament possessed 'full power' to amend the Constitution of Queensland simply by legislating inconsistently with it. (16) Moreover, the Privy Council's opinion, while at times abstract and theoretical, (17) was limited to a largely technical review of the relevant Imperial legislation (18) which avoided all reference to the politics and substantive merits of the appointment. (19)
The decidedly political nature of McCawley's Case, (20) juxtaposed with the 'strictly legal and constitutional' aspects of the reasoning, raises an obvious question: were the judges who resolved the dispute politically motivated? (21) All of the Supreme Court judges who decided the case had been appointed by non-Labor governments, and there were allegations that members of the Court harboured a political bias against the newly formed Labor Government. (22) Moreover, the sole dissenting judge, Real J, had a working class background (and was prepared to remind the Labor Government of this fact when tension between the Court and the Government reached its peak in the early 1920s). (23) The judges of the High Court who heard the appeal were similarly not without political connections. Of the majority judges, Griffith CJ was a former Premier and Chief Justice of Queensland, and Barton J had been Prime Minister of Australia. (24) Moreover, as politicians both Griffith and Barton had been liberal-conservative in political orientation--in sharp contrast to the radical-liberal politics of the two minority High Court judges, Isaacs and Higgins JJ, both of whom had been federal Attorneys-General. (25) Indeed, as President of the Commonwealth Court of Conciliation and Arbitration, Higgins held a position that corresponded at the federal level to McCawley's position as President of the Queensland Arbitration Court, (26) and was not unwilling to correspond privately with McCawley about the case itself. (27) Further, each of the judges were important figures in Australian politics because of their involvement in the debate over Australian federation in the 1890s, having taken leading, (28) and often opposing, (29) roles in that debate.
But what does it mean for a legal issue, and its resolution by judges, to be 'political' in nature? There are different, albeit overlapping, degrees to which a matter might be characterised as such. First, political controversies may be characterised as predominantly 'personal' in quality. Here, the contest is essentially one of individual ambition and pursuit of power, coloured perhaps by an element of personal aversion and, on occasion, by outright animosity. Second, political differences may be characterised as 'partisan', in the sense that they depend upon formal or informal political alliances and party allegiances--the typical stuff of contemporary parliamentary politics. Third, political differences may be characterised as 'ideological'. In this sense, the standard political classifications, such as 'conservative' and 'progressive', 'liberal' and 'socialist', 'left' and 'right', emerge.
Political ideologies are, however, more complex than simple left--right dichotomies suggest, and they typically involve a number of dimensions, including legal ones. Thus, particular political ideologies are often (although not necessarily) taken to imply particular theories about the nature, functions and purposes of law. For example, law may primarily be conceived in liberal terms as a facilitator of human choices and as a device by which governmental power is controlled. Alternatively, it may be conceived in progressive terms as a positive instrument of social change, or perhaps, in radical terms as an inevitably conservative institution that itself resists change. Moreover, associated with varying conceptions of law, political ideology can also imply a certain view of the structure and function of the courts, and of the role of the judiciary, as well as more abstract ideas about the institutions of the state generally, and of the ideal Constitution in particular. In other words, political theory can imply both a theory of adjudication and a theory of constitutionalism.
The relationship between political ideology and ideas about law, adjudication and constitutionalism is vexed. On prevailing liberal-democratic conceptions, the courts and the Constitution are politically neutral institutions which reflect fundamental political values that are widely shared by those who are in fact opposed in their more everyday personal, partisan and ideological commitments. (30) From a liberal-democratic point of view, therefore, a proposed change to the Constitution may represent a challenge to the fundamental ground rules of politics--with the potential to influence concrete political outcomes. Debates over constitutionalism and Constitutions, the law and the courts must, therefore, be understood in a context of both political contestation--and are thus political, and contested, in the deepest and most profound sense possible--but they are at the same time debates over the putatively neutral ground rules of politics.
McCawley's Case involved a complicated chain of events that displayed political elements in each of these six dimensions--personal, partisan, ideological, legal, judicial and constitutional--and this article attempts to chart these elements. The interesting and difficult problem, however, concerns the interrelationship between them. What is, and what ought to be, the relationship between 'politics' and 'law'? Here, the debate often centres on the question of whether adjudication is, can, or should be based upon law, and not politics. Sir Owen Dixon famously insisted that 'strict and complete legalism' was the only policy that could secure the confidence of the politically engaged. (31) Sir Owen did not deny that there is a real sense in which political considerations are relevant to judicial decision-making, particularly in the context of constitutional interpretation. A Constitution is a 'political instrument', he said, in that it 'deals with government and governmental powers'. (32) Considerations arising 'under the Constitution' are therefore unavoidably political in this sense. (33) However, Sir Owen insisted that the relevant considerations must at the same time be 'legal', in the sense that they must be derived from orthodox sources of law, such as previous judicial decisions, statutes and Constitutions. (34) Others, of course, deny that the line can be drawn so easily. (35)
McCawley's Case provides an interesting test case for an enquiry into the relationship between law and politics in Australia, for it was an intensely political affair which was thoroughly litigated at a state, federal and Imperial level. Moreover, it illustrates this relationship at a critical point in the evolution of Australian constitutionalism. McCawley's Case was initiated towards the end of the First World War. To a substantial degree, Australia entered that war as a colony of the British Empire, but emerged as an independent nation-state. (36) Against this backdrop, McCawley's Case was principally about the constitutional foundations of the Australian states, the constituent political units of the Commonwealth of Australia, which was itself a member of a nascent Commonwealth of Nations. At stake, therefore, were the constitutional foundations of an emerging, independent federation of self-governing states. The judgments delivered in McCawley's Case concerned constitutionalism and the fundamental nature of the 'polity' and in this sense they were political decisions of the highest order. Yet, at the same time, the case was about the highly controversial appointment of McCawley. This controversy occurred at the 'ordinary' level of politics and was largely fuelled by allegations that personal, partisan and ideological considerations had motivated both the appointment and its opposition.
The judges called upon to resolve the dispute would have been tempted to descend to the ordinary politics of the matter, using the formalistic veil of legal and constitutional reasoning to conceal a 'result-oriented' decision. The personal and political connections of the judges on both sides of the political divide would have rendered this temptation a real and powerful one, yet, we must ask: can the constitutional reasoning used in the case be dismissed, simply, as ideological or partisan rhetoric? (37) As will be seen, according to one side in the debate, what was at issue was the principle of the separation of powers and the independence of the judiciary, as well as the status of the Constitution of Queensland as fundamental, organic or higher law. On the other side, was the view that the law--and therefore the courts, Parliament and Constitution of Queensland--ought to be instruments of social and economic progress, to which a strict separation of the judiciary and the executive, and an inflexible attitude to the relationship between the Parliament and the Constitution, must give way.
In this context, how is McCawley's Case to be understood? To what extent were the decisions motivated by political and legal considerations? In this article, it will be contended that while both kinds of considerations influenced the judges, distinguishing the 'political' dimensions of the case into personal, partisan and ideological aspects, and the 'legal' dimension into theories about law, adjudication and constitutionalism, enables a more nuanced assessment. It will be argued that rather than being adequately explained in terms which are either purely legal or reductively political, the decisions are best understood as reflecting contrasting theories of a politico-constitutional character concerning the ideal purposes of constitutional law and the appropriate location of ultimate, constituent power within the Australian states.
Part II of this article accordingly places McCawley's Case within the political and legal context in which it arose and shows why the case provides a particularly rich opportunity to test our understanding of the relationship between law and politics in Australian constitutional law. Part III turns to the reasoning adopted by the judges, examining the respective roles of technical legal argument, constitutional theory and political motivation in the various judgments. Part IV concludes by arguing that McCawley's Case cannot be explained entirely in terms of purely legal considerations, or by reference to its political dimensions. Instead, the case turned ultimately on competing conceptions of the ideal Constitution of a self-governing political community.
II BACKGROUND
Thomas McCawley was born on 24 July 1881, the son of a Toowoomba drover, and the sixth of eight children. (38) His father, James McCawley, was Irish-born; his mother, Mary (nee Stenner), was born in Prussia. As befitted a Roman Catholic upbringing, he was duly educated at St Patrick's Boys' School in Toowoomba. The financial situation of his family meant that McCawley had to leave school at the age of 14, working first as a teacher, and soon thereafter as a clerk in a solicitor's office. Shortly before his 18th birthday, he passed the public service examinations and was appointed a clerk, first within the Queensland Government Savings Bank, later within the Public Service Board and finally within the Department of Justice. He soon became Attorney-General James Blair's private secretary and in this capacity he helped draft the Workers' Compensation Act 1905 (Qld), and shortly thereafter co-authored a commentary on the Act with Blair and Thomas Macleod. (39) Studying after-hours, he passed the prescribed examinations and was subsequently admitted, on the motion of Blair, to the Queensland Bar in 1907. (40) McCawley's work within the Department of Justice must have been impressive, (41) for in 1910 he was appointed Crown Solicitor by Blair under the Liberal-Labor Government of William Kidston. (42) His public service career reached further heights in 1915, when he was appointed Under Secretary for Justice under the newly formed Ryan Labor Government. (43)
A Political Context
The Ryan Government was the first Labor administration in Queensland to be elected with a clear majority in the Legislative Assembly. (44) True to its platform, the Government embarked upon an elaborate reform programme during its first term in office that included the establishment of a number of state enterprises, the reform of workers' compensation and the introduction of compulsory voting, as well as unsuccessful attempts to dissolve the Legislative Council, to abolish the death penalty and to introduce a form of direct democracy through popular initiative and referenda. (45) This radical reform agenda attracted political opposition from conservative members of Parliament, particularly in the Legislative Council, many of whom were lawyers. (46) Moreover, a disposition on the part of the Government to use its executive and legislative powers in novel ways, and to the fullest extent possible, led to court challenges, and thus to a series of confrontations between the Government and the Supreme Court. (47)
One of the principal legislative initiatives of the Ryan Government was the Industrial Arbitration Act 1916 (Qld) ('Industrial Arbitration Act'). (48) In conjunction with Edward Theodore as Secretary for Public Works, McCawley, as Crown Solicitor, played a key role in drafting the Act in its original form. (49) While the Act was presented as a measure designed to secure 'industrial peace', (50) it was clearly intended to lay the foundations for an arbitration system that would strengthen the role of industrial unions and promote the interests of the working class. (51)
At the centre of the Act was the new Queensland Arbitration Court. Section 6(1) established the Court and s 6(2)-(3) empowered the Governor-in-Council, by commission, to appoint judges of the Court, one of whom was to be designated President. Under s 6(5), the Court was deemed to be a 'branch' of the Supreme Court and every judge of the Queensland Arbitration Court was deemed to have the 'status' of a Supreme Court judge. Section 6(6) provided that the President and judges of the Court were to be appointed for a term of seven years, and were eligible for reappointment. Problematically, however, s 6(6) of the Act also provided that judges of the Queensland Arbitration Court could be appointed to the Supreme Court, bypassing the specific provisions for the appointment of Supreme Court judges contained within the Constitution Act, which required that they be granted life tenure during good behaviour and which set the maximum number of judges at five. (52) McCawley was appointed to the Supreme Court under Industrial Arbitration Act s 6(6), and it was this provision that would be the subject of the constitutional challenge in McCawley's Case, on the ground of its inconsistency with the Constitution Act.
Under the Industrial Arbitration Act, the Queensland Arbitration Court was invested with wide reaching jurisdiction to make binding awards 'in any question arising out of any industrial matter', (53) from which there was no right of appeal. (54) The Court was thus empowered to determine standard working hours and minimum wages so as to guarantee a basic standard of living. (55) The Act also provided for the registration of industrial unions and gave them the right to enter into agreements with employers, to be parties to disputes and to be represented before the Queensland Arbitration Court. (56) Most controversially, the original Bill gave the Court explicit jurisdiction to grant preference in employment to unionists in particular industries. (57)
With partisan motives and for ideological reasons, the Opposition focused its attention upon the union preference clause and, in the course of a highly charged parliamentary debate, was able to secure the rejection of the Bill by the Legislative Council largely on this basis. (58) At a subsequent conference between members of both Houses, the Labor Government agreed to delete the preference clause (taking the view that the Queensland Arbitration Court would, in any case, have discretion to grant preference to unionists). (59) The Opposition saw this backdown by the Government as a victory. However, the Government's interpretation of the Bill was soon vindicated in a judgment delivered by McCawley during the first year of his presidency. (60)
By the time of his appointment to the Queensland Arbitration Court, McCawley had deeply imbibed progressive socialist beliefs. He had read the Fabian Tracts and other democratic socialist writings by George Bernard Shaw and Sidney Webb. (61) McCawley has since been described as 'a social reformer who saw the law as being a potential instrument of reform, rather than remaining an instrument of conservatism and reaction against reform'. (62) In particular, McCawley was greatly influenced by Henry Bournes Higgins, President of the Commonwealth Court of Conciliation and Arbitration, and Justice of the High Court of Australia. (63) Correspondence between McCawley and Higgins reveals a warm and courteous relationship, in which they exchanged books (64) and discussed various political and legal issues, confiding on a number of industrial relations matters which had appeared before them (or would appear in the near future) in their respective judicial offices--including McCawley's Case itself. (65) McCawley was at times effusive in his praise of Higgins. He regarded Higgins to have been the 'sheet anchor' (66) of the entire system of industrial regulation in Australia and to have contributed 'a lasting service to the community' by 'lifting the subject [of industrial relations] out of the domain of party politics'. (67) As President of the Queensland Arbitration Court, McCawley would soon show himself to be a dedicated disciple of his Victorian mentor. (68) In this context, the Higgins-McCawley correspondence relating to the politics of McCawley's appointment (69) raises serious questions about the appropriateness of Higgins J sitting on the High Court appeal in McCawley's Case.
Edward Theodore seems to have been the prime mover behind McCawley's appointment to the Queensland Arbitration Court and the Supreme Court. (70) He explained that the Government was 'anxious to secure men of legal standing and ability, who were also temperamentally fitted for work of this kind'. (71) It has been suggested that all Theodore meant by this was someone possessing 'suitable knowledge' to administer a 'new form of law' and that it was in this sense that McCawley's appointment was politically consistent with the values of the Labor Party. (72) A similar view was suggested by McCawley himself when he later observed that what was required was someone not 'diametrically opposed to the contemporary attitude of intelligent students of industrial problems.' (73) The Queensland Arbitration Court should be staffed, he said, by men of 'great altruistic qualities', rather than by those who desired power for its own sake. (74) Altruistic attitudes, suitable knowledge and an intelligent grasp of the issues were no doubt necessary qualifications for the position. However also required, it seems, was a strong commitment to the 'progressive' social objective of industrial reform and the alleviation of social injustice through compulsory industrial arbitration. (75)
McCawley's sympathy for the Labor Government's substantive policy goals was illustrated from the beginning of his term at the Queensland Arbitration Court. Reflecting a particular view or ideal of the law, McCawley declared that the Queensland Arbitration Court would not be bound by precedent and strict legal rules, but would be guided by 'equity and good conscience'. (76) As an instrument of 'social justice', the Queensland Arbitration Court would set wages by reference to the cost of living as determined by statistical evidence, but this would be modified so as to ensure that workers were guaranteed a 'fair and average standard of comfort' which would advance 'as the wealth of the community increases'. (77) To do so, he continued, the Court would not allow its discretion to be fettered by a 'rigid rule' based on 'considerations of consistency.' (78) The 'new sciences' of economics, statistics and political science would provide the data necessary to formulate industrial awards which would secure the improvement of working conditions and wages. (79) In this way, McCawley enthusiastically embraced the movement 'from contract to status' that the new regime of industrial arbitration embodied. (80)
The expectations of the Government were realised--and those of the Opposition dashed--when in June 1917, McCawley P decided that the Queensland Arbitration Court had jurisdiction to order employers to make union membership a condition of employment. (81) However, the Government's objective was not only industrial 'justice' but also industrial 'peace', (82) and this implied an attempt to arbitrate between the conflicting demands of workers and employers. (83) The resolution of industrial disputes through arbitration was therefore preferred to collective bargaining, even though such a policy placed Ryan, Theodore and McCawley in conflict with some of the more militant unions. (84) For example, when strikes erupted in northern Queensland in 1919, McCawley observed that 'the majority of the strikes in the north were due to the desire to punish the employers for their departure from the method of collective bargaining and for approaching the Arbitration Court'. (85) McCawley's relatively moderate approach to industrial relations was reflected in his insistence that award wages should be struck at a rate which industry could in fact afford to pay, (86) and by his unwillingness to side with those who 'habitually disregard the provisions of the law.' (87) This conception of law as an instrument of reform undergirded the preference for arbitration over collective bargaining. It also dovetailed neatly with the idea that the Parliament and the Government should be free of any constitutional constraints that would prevent them from efficiently enacting and administering laws for the betterment of society.
In this context, opposition to the Industrial Arbitration Act and to McCawley's appointment was simultaneously personal, sectarian, partisan and ideological in character. (88) Other more senior lawyers were passed over in respect of McCawley's appointments to both the Queensland Arbitration Court and the Supreme Court, so the opposition was not without a personal element. (89) Religious sectarianism also added an important dimension to the controversy. Ryan, Theodore and McCawley were Roman Catholic; their opponents were mostly Protestant. (90) When the Anglican Bishop, Henry Frewen Le Fanu, entered the fray by delivering an entire sermon on the Ryan Government's various appointments, he was answered immediately by the Catholic Archbishop, Dr James Duhig. (91) The resistance was likewise partisan and ideological. Within the arguments of the opposition, for example, it is possible to discern the liberal-conservative values of equality of opportunity and free enterprise, as well as the view that the essential task of government and law is to facilitate the operation of the market. (92) Thus, when Theodore stated that McCawley was 'temperamentally fitted' for the appointment, the opposition leapt on the political implication. (93) Leading the attack, Edwin Fowles suggested that the appointment had been made on the basis of 'politics', 'religion' and 'personal friendship' rather than 'merit, efficiency, and seniority'. (94) However, William Hamilton, the Secretary for Mines, responded that McCawley's sympathy for the objectives of the Industrial Arbitration Act did not mean that the appointment was made on the basis of 'his politics or his religion'. (95) Hamilton denied that the decision was...
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