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Problems in Australian Constitutional Law - Post the Workchoices Decision

Problems in Australian Constitutional Law - Post the Workchoices Decision

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Published by Tim McCulloch

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Published by: Tim McCulloch on Jul 24, 2010
Copyright:Attribution Non-commercial


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The High Court decision in
 NSW v Commonwealth
(“the Work Choices Case”)
would have come as little surprise to followers of Australian constitutional jurisprudence. In a majority decision of five to two with Justices Kirby and Callinanin dissent, the Court upheld the validity of the Federal Government’s
Work Choices
Quoting Justice Gaudron in
 Re Pacific Coal 
the majority held that “laws prescribing the industrial rights and obligations of [constitutional] corporations andtheir employees and the means by which they are to conduct their industrial relationsare laws with respect to constitutional corporations.”
Justice Kirby in dissent stated
This court and the Australian Commonwealth need to rediscover the federal character of the Constitution. It is a feature that tends to protect liberty and restrain the over-concentration of power which modern government, global forces, technology, andnow the modern corporation, tend to encourage.
The majority construction of the Corporations power found in s 51(xx) of theAustralian Constitution is the broadest yet seen and is consistent with the method of constitutional interpretation adopted by the Court in
 Amalgamated Society of  Engineers v Adelaide Steamship Co Ltd 
 Engineers Case
From the time of that decision, in which the ‘heresy’ of the
 Reserved Powers
doctrine was overturned,the High Court has steadfastly refused to entertain notions of federal balance wheninterpreting the Constitution.This article will address the development of constitutional interpretation in Australiaover the past century with reference to the consequent reduction in the residual powers of the States. The
Work Choices
decision affirms the High Court’s adherenceto the literalist method of interpretation of the Australian Constitution despite theMason Court’s flirtation with progressivist interpretations in the implied rights cases.
7 1
(2006) HCA 52.
The proceedings challenged the validity of the
Workplace Relations Amendment (Work Choices) Act 
2005 (Cth).
(2000) 203 CLR 346.
 NSW v Commonwealth (the Work Choices Case)
(2006) HCA 52 at 198.
ibid at 612.
(1920) 28 CLR 129.
see for example
 Nationwide News Pty Ltd v Wills
(1992) 177 CLR 1;
 Australian Capital Television Pty Ltd v Commonwealth
(1992) 177 CLR 106; CB 671-691; in
 Lange v Australian Broadcasting Corporation
(1997) 189 CLR 520 the High Court reverted to an interpretation of the implied freedomthat relied more heavily on the text of the constitution.
The trend of centralising power in the Commonwealth at the expense of the States,although arguably undesirable, will likely continue apace for the foreseeable future.The prospects for the development of a doctrine resting on the decision in
, though limited, may afford some protection to the States, from further encroachment by the Commonwealth into areas of state responsibility. Finally, theCourt’s commitment to a common law, case by case approach to constitutional casessuggests that the limits of this construction of Corporations power have not yet beenfully explored, but also provide an opportunity for a future High Court to forge adifferent path.Australia is a vast and sparsely inhabited continent with concentrated centres of  population separated by large distances. Thus, a federal structure was on obviouschoice. “[D]evolving decision making to the local level as much as possible” had two principle benefits. Conferring increased input and leverage upon those affected bydecisions and enhancing the value of each individuals vote.
Competitive federalismalso has the capacity to produce enhanced outcomes and act as a break on radicalchange.
While there is no universal model of federalism, Geoffrey Sawyer identifiedthree key features. First, several governmental units existing in one area, with “onehaving competence over the whole area, the others over defined parts of it, andsharing between them the power to govern.” Second, each unit has a “reasonabledegree of autonomy” and thirdly “one unit cannot destroy the autonomy of other units.”
In his comparison of Australian and Canadian constitutional development,
Canada and Australia: A Federal Parting of the Ways
, Richard Cullen observed that“a fundamental reason for creating a federation is to allow for regional differenceswhilst obtaining the benefits of a measure of economic and political integration.”
It seems fairly clear that the design of the Australian Constitution was intended to protect the role of the States as the founders conceived of it. James Warden assertsthat “[t]he protection of state’s rights was foremost in the minds of the majority of 
(1947) 74 CLR 31.
R Wilkins, ‘A new era in Commonwealth-State relations?’ (2006) 7
 Public Administration Today
8, 8
ibid 9.
G Sawer in G Winterton et. al.,
 Australian Federal Constitutional Law: Commentary and Materials
(Pyrmont, Lawbook Co., 2007) 4.
R Cullen, ‘Canada and Australia: A Federal Parting of the ways’ (1988) 18
 Federal Law Review
delegates to the [constitutional] conventions and that majority won most of the crucialdivisions in the committees against the liberal nationalists”.
 The framers had“considered Canada’s constitutional structure too centralist and had deliberatelychosen the more decentralised distribution of powers used in the Constitution of theUnited States.”
A number of constitutional steps were taken to protect the Statesfrom the encroachment of Commonwealth power. These were the grant to theCommonwealth of specific, enumerated powers in s 51, the creation of the Senate asthe Stateshouse and finally, the creation of the High Court as the arbiter of constitutional disputes. First, the grant of specific enumerated powers embodies atheory of ‘coordinate federalism’, where the States and Commonwealth each havedifferent and distinct responsibilities.
It was thought that Commonwealth would belimited to its specified and “strictly defined”
heads of power. But as Justice Stephenobserved in
 Actors and Announcers Equity Association v Fontana Films
Unaffected by restraints imposed by the existence of mutually exclusive grants of legislative power, this Court's process of characterization is free to recognize thatlaws may in truth possess a number of characters
The result of such an approach to the s 51 powers is that “the Commonwealth and theStates have responsibilities in many areas together.”
Secondly, the “almostimmediate breakdown of the neatly conceptualised role of the States house after federation occurred because of the development of party politics.”
 Finally, GregCraven asserts that the role of High Court was to protect the States and send theCommonwealth “whimpering back within the proper bounds of its authority”
shouldit attempt to exceed it. The failure of this safeguard can be attributed to the framerssuggests James Warden
J Warden, ‘Federalism and the Design of the Australian Constitution’ (No. 19, May 1992)
 Federalism Research Centre Discussion Papers
1, 1.
G D Q Walker, ‘The Seven Pillars of Centralism: Engineers’ Case and Federalism’ (2002) 76
 Australian Law Journal 
678, 679.
R Wilkins, n 9 above, 9.
G D Q Walker, n 14 above, 682.
(1982) 150 CLR 169
ibid at 8
R Wilkins, n9 above, 9.
J Warden, above n 13, 13.
G Craven, ‘The High Court and the States’ (1996) 6
Upholding the Australian Constitution
44, 49.

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