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
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
From the time of that decision, in which the ‘heresy’ of the
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
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.
(2006) HCA 52.
The proceedings challenged the validity of the
Workplace Relations Amendment (Work Choices) Act
(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.