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November 16, 2006
The basic idea of the Workplace Relations Act, which the states challenged, is to strip away many of the constraints and conditions associated with the independent processes of conciliation and arbitration and narrow the focus on the economics of the employer-employee relationship. The High Court's 5-2 decision on the state's challenge the Howard Government's industrial relations regime has in fact greatly expanded the scope of the constitution's corporations power, section 51(xx) to be exact. As I noted at public opinion the High Court's interpretation of the commonwealth's corporations power in the Work Choices case is opposed to any notion of a federal balance of power. It has given the commonwealth the power to intervene in almost areas of state power including higher and private education, through every aspect of health, to such matters as town planning and the environment. This expansive reading has prevailed since the Engineers case in 1920, and throughout the 20th century the court has consistently interpreted the powers expressly granted to the Commonwealth in the Constitution broadly.
Greg Craven gives a strong interpretation of centralism as obliterating powers of the states in The Australian. He says:
The court has given Canberra the key to the Constitution...All in all, the High Court has delivered what liberal conservatives have long feared: an omnicompetent national government effectively unrestrained by a constitutional division of powers. The Business Council of Australia and its allies, who have yearned for this position, had better hope that this battery of power is never controlled by their enemies...The real question for the states is the direction in which they should swim. This is an occasion for brutal realism. As of this week, the time of the states as semi-independent constitutional entities is, sadly, over. They will have to adapt to a world in which the commonwealth unequivocally is master, while striving to preserve their individuality and local policy capacity. Inevitably, this will mean gritting their teeth and abandoning co-ordinated and even co-operative federalism in favour a model of leadership federalism.
So how does Justice Ian Callinan in his minority judgement read the constitution differently? What is the basis for his different interpretation?
Callinan holds that maintaining a federal balance to be an important consideration:
I do not suggest that the Constitution can, or should be construed in a vacuum, that is, in disregard of statements of Justices of this Court in earlier cases, and, of course, history[698]. Although the relevant history here is important and instructive, the dicta from other cases are, with a few exceptions, not. The sum of the matters which should inform the proper construction are: the techniques employed from time to time by Justices of this Court in construing the Constitution; the constitutional imperative of the maintenance of the federal balance; the fundamental canon of construction, the need to construe the Constitution as a whole; the reach, impact and meaning of the industrial affairs power conferred by s 51(xxxv) of the Constitution[699]; the reach, impact and meaning of the corporations power; and, the relationship between the two powers.
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Hm.
Can't say I am very excited about all this. Federalism went out the window in the Second World War with the consolidation of taxation powers with the Commonwealth.