Reserved powers doctrine

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The reserved powers doctrine was a principle used in the interpretation of the Constitution of Australia. It adopted a restrictive approach to the interpretation of the specific powers of the Federal Parliament in order to preserve the residual powers of the States. The doctrine was abandoned by the High Court in 1920 in the Engineers' Case.


In the first two decades of its existence, the High Court adopted a doctrine of "reserved State powers" combined with "implied inter-governmental immunities". The essence of the first part of the doctrine was that grants of power to the Commonwealth in the Constitution should be read in a restrictive way so as to preserve as much autonomy as possible for the States.[1] The essence of the second part of the doctrine was that the Commonwealth and States were immune to each other's laws, and could not mutually regulate each other's governmental apparatus: for instance, they could not tax the wages of each other's employees or force each other's employees to submit to compulsory industrial arbitration.


The High Court abandoned the doctrine in the 1920 Engineers' Case after changes in the composition of the Court. The Court now insisted on adhering only to the language of the constitutional text read as a whole in its natural sense and in light of the circumstances in which it was made: there was to be no reading in of implications by reference to the presumed intentions of the framers. In particular, since there is no mention of "reserved State powers," only one express inter-governmental immunity (regarding property taxes: section 114), and, an express provision asserting the superiority of valid Commonwealth laws over inconsistent State laws (section 109), there was no longer any room for the doctrine previously asserted in favour of the States.

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  1. ^ See, e.g., R v Barger [1908] HCA 43 AustLII