The constitutional convention held in Adelaide in 1897, passed a resolution that, as the first condition for the creation of a federal government, "the powers, privileges and territories of the several existing colonies shall remain intact, except in respect of such surrenders as may be agreed upon to secure uniformity of law and administration in matters of common concern."
The intention of the framers of the Australian Constitution has been said to be "to create a federal government, albeit of limited jurisdiction, which would be responsive to the popular will in specified matters of national concern and to superimpose it upon existing colonial or state governments which were seen as each adequately responsive to the popular will within their respective territorial constituencies.
"[2] One of the tasks facing the inaugural High Court was to establish its reputation and in so doing to win the confidence of the Australian people.
[4] For the first two decades, the High Court stayed reasonably true to the "co-ordinate" vision of the framers in which the Commonwealth and the States were both financially and politically independent within their own spheres of responsibility.
[5] The High Court rejected Commonwealth government attempts to extend its authority into what were perceived as areas of State jurisdiction.
The court did so by adopting a doctrine of "reserved State powers" combined with "implied inter-governmental immunities", to protect both the Commonwealth and the states from legislative or executive action which "would fetter, control, or interfere with, the free exercise" of the legislative or executive power of the other.
He didn't however have a licence under the NSW Liquor Act 1898 which required payment of a fixed fee regardless of the brewer's output.
[28] Bartley had successfully argued in the Supreme Court of NSW that the NSW licence fee was an excise duty and that the effect of section 90 of the Australian Constitution was that the State Act ceased to have effect once the Commonwealth imposed uniform customs duties.
[14]Whether State railways employees should be covered by the Commonwealth Conciliation and Arbitration Bill was a politically contentious issue.
NSW and Victoria intervened to argue that the Conciliation and Arbitration Act 1904 was invalid in so far as it purported to include State railway servants.
The division in the Court can be seen as a continuation of the debate in the constitutional conventions about the nature of the federal system and the legislative powers of the new Commonwealth.
[4] In R v Barger[12] the Court had to consider whether the Commonwealth could use an excise tariff under the taxation power,[34] as a means of protecting manufacturers who paid "fair and reasonable" wages to their employees.
The Court was divided 3:2 with the majority, Grifith CJ, Barton & O'Connor JJ, holding that the Excise Tariff Act 1906,[35] was invalid.
The majority described the applicable rule in this case as "different, but ... founded upon the same principles", concluding that the power of taxation could not be exercised so as to operate as a direct interference in the internal affairs of the States.
[43] Isaacs and Higgins JJ dissented however their reasons do not specifically address their continued opposition to the reserved powers doctrine.
In Huddart, Parker & Co Pty Ltd v Moorehead,[10] the court was considering the Australian Industries Preservation Act 1906,[44] commonly referred to as the Anti-trust law,[45] which was an Act that sought to ensure freedom of trade and commerce, protection from unfair competition and preventing price fixing and monopolies.
[50] In 1916 Farey v Burvett the Court had to consider the validity of legislation and regulations made under the defence power that fixed the maximum price for bread.
by the unifying influence of federal law, by the decline of dependence upon British naval and military power and by a recognition and acceptance of external interests and obligations.
One of the arguments put forward by the States in the WorkChoices case,[59] was that the powers conferred by s 51 must be construed so that they do not authorise a law with respect to the prevention and settlement of industrial disputes other than by conciliation and arbitration.
On the question of reserved powers, the majority noted that "No party to these proceedings questioned the authority of the Engineers' Case,[1] or the Concrete Pipes Case,[62] or the validity of the Trade Practices Act in its application to the domestic (intrastate) trade of constitutional corporations.