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July 19, 2007
Greg Craven has an op-ed in The Australian on Ian Callinan, who is to retire from the High Court. Craven says that Callinan was at his appointment, and remains, genuinely conservative is indisputable. He adds that:
What is interesting is to consider the nature of his conservatism.Too often, in discussing conservative High Court judges, observers confuse political and constitutional conservatives. Certainly, Callinan shared with other Howard appointments a general political conservatism. But he was almost alone in his profound, principled attachment to a genuinely conservative constitutional approach. Callinan's starting point was that he was an unapologetic intentionalist. When judges revelled in the remaking of the Constitution, Callinan believed in a document drafted by elected delegates, democratically ratified (and changeable) at referendums. It was to be interpreted according to that legitimate historical intention, not the length of Anthony Mason's foot. This stance inevitably meant that Callinan was utterly intolerant of many of the court's best loved constitutional magic tricks, notably including the shameless invention of sundry implied rights.
I'll put that attack on implied rights and judicial activism to one side for another post. Craven, who is the Executive Director and Professor of Government and Institutional Law of the John Curtin Institute of Public Policy, says something interesting about Callinan's approach to federalism. Constitutionally speaking, federalism is usually equated with centralism these days.
Craven thinks otherwise. Craven says that Callinan was one of the High Court's great - and possibly one of its last - federalists. His attachment to federalism was not a matter of simple states rights.Rather, Callinan understood Australian federalism not only as the fundamental feature of the Constitution but as system of government based on deeply conservative precepts for the division of power and the preservation of liberty.
Craven, the author of Conversations with the Constitution: Not just a piece of paper, adds that Callinan demonstrated this understanding once and for all in his judgment in the Work Choices case, where - with an unlikely ally in Michael Kirby - he stood against the remainder of the court in finding for the states against the commonwealth. He adds:
This case was the ultimate test of Callinan's principles as a constitutional conservative. Appointed by a conservative government, at least partly on the basis of his ostensible conservative connection, he faced an interesting choice. On the one hand, any promptings of political conservatism inevitably would suggest a broad reading of the commonwealth's corporations power so as to ground the Howard Government's industrial relations reforms. But such an approach would run foul of every historical intention behind the Constitution and spell ruin for Australian federalism. It would be the antithesis of the constitutional conservatism that had been the touchstone of Callinan's judicial career.
Callinan affirmed the conservative understanding of the Constitution as a delicate instrument of checks and balances. So why is this constitutional conservatism rather than simply federalism?
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Gary, I actually read through the Workchoices decision. I agreed with Cullinen's dissent.