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'Constant revolutionizing of production, uninterrupted disturbance of all social conditions, everlasting uncertainity and agitation distinquish the bourgeois epoch from all earlier ones ... All that is solid melts into air, all that is holy is profaned.' Marx

Constitutional Interpretation #2 « Previous | |Next »
April 12, 2005

In an op. ed. in The Australian criticizing the emerging centralist tendencies of the Howard Government, Jeffrey Phillips, a Sydney barrister specialising in industrial relations, observed that:

"The intellectual Right in Australia has condemned the centralist tendencies of Labor and Liberal governments and has, in more recent times, condemned the use of the external affairs power enabling Canberra to regulate internal matters."

He mentions the Samuel Griffith Society, as an example of the intellectual right, then adds:
"Whether or not conservative and right-wing supporters of the federal Government are able to change its mind in relation to a single industrial relations system, there are considerable doubts as to whether a change of such radical proportions would pass scrutiny in any High Court challenge."

His reasoning is this:
"The [High] court led by Anthony Mason was clearly centralist in its approach. Whether the court led by Murray Gleeson is of a similar vein is to be determined, but it certainly looks conservative....With the profound changes in the High Court's composition since that time, any suggestion that the use of the corporations power to completely take over the industrial relations system is a fait accompli would appear to be, on its face, somewhat hopeful."

Would a conservative High Court turn its back on a 80 years of fostering centralism? Certainly the Mason Court's progressive judicial activism in the 1990s (ie., constitutional activism in cases like Australian Capital Television created an implied freedom of political communication) has become far more constrained with the Gleeson High Court.

Would a conservative High Court begin to turn its back on 80 years of fostering centralism? Would it recover the founder's conception of Australian federalism, that of the coordinate government of States and Commonwealth?

It is not certain. What is discernible is that judicial activism has been a feature of conservative as well as progressive High Courts. Was not the 1920 the decision of the Court in Engineers case in 1920 to interpret the Constitution according to a rule of literalism, the beginning an on-going process for the centralisation of Commonwealth power via judicial sponsorship?

What if a conservative High Court did so return? Say it did so in order to safeguard our liberties, from a conservative Howard Government trampling on the principle of balanced government through seriously undermining the power of the States, and compromising the Senate, as both a House of review and of federal diversity.

How would the High Court interpret the Constitution to justify a more balanced conception of federalism?

Greg Craven points out two difficulties. The first is that:

"....Australian lawyers, and especially conservative lawyers, traditionally despise theory, preferring the case-by-case logic of the common law. Indeed, until the early '90s there virtually was no constitutional theory in Australia, and anyone interested in the topic was regarded as profoundly eccentric...."

The second is the difficulty:
"...that conservatives have tended to take an extremely unsophisticated view of constitutional interpretation. If asked what they do when engaged in the process, they tend to respond that they are reading the words. If further asked what is involved in reading the words, or whether words can have more than one meaning, or whether Constitutions contain more than just words, they generally are irritated, covered with confusion or both. Yet what is required in any theoretical contest are sophisticated theoretical apologists, and these tend not to arise in large numbers on the conservative side of Australian constitutional debate."

The possibilities of constitutional interpretation are covered here.

| Posted by Gary Sauer-Thompson at 2:28 PM | | Comments (0)
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