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By cam (Tue Nov 14, 2006 at 04:27:33 AM EST) (all tags)

The High Court passed judgement on the state-based challenge to the federal Workchoices legislation - a statutory behemoth of 1000 pages plus several hundred more of amendments designed to make the federal government the sole authority on industrial matters.



The federal government has no explicit authority in the area of industrial matters, and has tried to pass referendums in the past to gain control over these areas. The referendums failed. However in 2006 the federal government legislated into this area.

The Labor Party does not like it as the Workchoices legislation effectively bans collective bargaining of any sort. The Australian states are all headed by Labor governments, so in the principle of federation, hands-off, and party-machine "oh god!" they headed to court. The Australian Worker's Union joined them.

The argument for hinged on the Corporations Power;

51.The Parliament shall, subject to this Constitution, have power to make laws for the peace, order, and good government of the Commonwealth with respect to: -

    (xx.) Foreign corporations, and trading or financial corporations formed within the limits of the Commonwealth:

This clause, s51xx, has been expanded mightily by past constitution decisions, so much so, that it cannot be read explicitly and understood. It has got to the point that Corporation's Power is often used as a term for federal expansion.

The Workchoices legislation defines an employer as a 'constitutional corporation'. This is language that appears in past decisions on this clause and has been approved as being inside the realm of federal power. So it hinges on prior court decisions rather than explicit constitutionality. There was also a statement by a judge in a previous case, Pacific Coal, that the corporations power included the authority to regulate industrial matters.

Commentary

I have discussed the issue on South Sea Republic from the referendum viewpoint but there has been no shortage of discussion. This is a quick round up of the commentary on the decision as it was discussed widely and voraciously soon after being passed out, partly because the austlii database published the decision so quickly too, enabling immediate dissemination (congrats austlii).

Tim Dunlop; The states are dead. Tim writes;

No matter what you think of the IR laws that were the basis of the High Court case decided today, the ruling is a blow to anyone who believes in the Australian Federation and the liberal principle that government power should be as dispersed as possible.

The problem is Federation has been out of vogue since Isaac Isaacs ran the High Court (after Griffith retired). The Parliament has constantly coveted state responsibilities since 1901. In the 1960s John Gorton was comfortable claiming that the federal government should raise all moneys, determine all policy and the state can act as administrative offices to disburse funds in pursuit of those policies.

In the last federal election the Greens and Democrats had formal policies of abolishing the states. Labor has an informal policy in that respect, and John Howard was quoted as saying that if he did Australia over again we wouldn't have the states.

One of the arguments for a homogenous federal government over the states is that Australian's discovered nationalism, I suspect it was the High Court that did - the decisions in constantly expanding central power, starting the Engineers case - is an activist form of judicial nationalism. Federalism was dead in Australia long before this case.

Ken Parish, a lawyer, discusses the case and then warns that the death of federalism are over-stated. He is right that the States often don't want to assert themselves federally as it is politically convenient to blame Canberra, as it is for Canberra to constantly blame the states. But it has been a two way process, weak states and an aggressive federal government backed by the High Court.

For instance the 1992 case when NSW aggressively saw an opportunity with a new High Court bench to redefine excise into its accepted meaning, a tax on production, the High Court passed a judgement that made the constitutional definition of excise something just short of a sales tax - effectively expanding its meaning in favour of the federal government. It is likely that the GST, an anti-federalist policy, was a response to this.

Ken's discussion of the case is a good run-down;

Nevertheless, although the judgments are long, their essence can be summarised in short detail. The majority (Gleeson CJ, Gummow, Hayne, Heydon and Crennan JJ) essentially adopted the reasoning of Justice Gaudron in Re Pacific Coal as to the ambit of the corporations power* :

    I have no doubt that the power conferred by s 51(xx) of the Constitution extends to the regulation of the activities, functions, relationships and the business of a corporation described in that sub-section, the creation of rights, and privileges belonging to such a corporation, the imposition of obligations on it and, in respect of those matters, to the regulation of the conduct of those through whom it acts, its employees and shareholders and, also, the regulation of those whose conduct is or is capable of affecting its activities, functions, relationships or business.

Hence the Work Choices legislation is constitutionally valid in directly regulating the employment terms and conditions of employees of foreign, trading and financial corporations. That doesn’t come as any surprise to most constitutional lawyers. Like many others, it’s exactly what I predicted here at Troppo.

As he mentioned, that middle paragraph popped up in a previous court decision, which is probably why the federal government felt confident legislating in this area and that they would be backed up by the High Court.

Andrew Leigh commented on the decision with;

Bottom line: the corporations power in the Constitution (section 51(xx)) is now broad enough to drive a truck through.

The Australian Constitution is getting to the point, between convention and High Court expansion of constitutional meaning, that it cannot be read explicitly or cleanly for Australians to understand how their federal government operates.

cam

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Australian High Court Decision | 18 comments (18 topical, 0 hidden) | Trackback
Only the Constitution ? by Phage (4.00 / 1) #1 Tue Nov 14, 2006 at 05:21:58 AM EST
Have a look at your 4m2 ballot paper. How many volumes does the Income Tax Act run to ? Most people gave up understanding what the hell was going on some time ago.

You mean like this? by cam (4.00 / 2) #2 Tue Nov 14, 2006 at 05:29:15 AM EST
<sigh> by Phage (4.00 / 1) #3 Tue Nov 14, 2006 at 05:31:25 AM EST
Exactly what I mean.

[ Parent ]
best. chart. ever. by MillMan (4.00 / 2) #7 Tue Nov 14, 2006 at 08:08:33 AM EST
bureaucracy vs time. Spectacular.

When I'm imprisoned as an enemy combatant, will you blog about it?

[ Parent ]
So by jimgon (2.00 / 0) #4 Tue Nov 14, 2006 at 05:51:06 AM EST
The UK is already US state number 51.  How do you want to number the ones in Australia?  Canada is just a sparsely populated territory that has yet to be properly civilized.  When their corporations rule with an iron fist they will also be welcomed into the fold.




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Technician - "We can't even get decent physical health care. Mental health is like witchcraft here."
Let's at least split Ontario into 2 or 3 states by georgeha (4.00 / 1) #5 Tue Nov 14, 2006 at 06:08:47 AM EST
If little Ottawa has their own Senators, Toronto should too.


[ Parent ]
No way by yicky yacky (2.00 / 0) #10 Tue Nov 14, 2006 at 09:39:08 AM EST

They may be gobby bastards with lots of land but there aren't very many of them. Add Canada and Aus together and you're still about ten million shy of the UK population. If we're the 51st, they can have 0.5 and 0.333' of the 52nd respectively.


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Vacuity abhors a vacuum.
[ Parent ]
How about dividing Austalia, Canada, by wumpus (2.00 / 0) #14 Tue Nov 14, 2006 at 05:08:21 PM EST
and Alaska so that Texas is something like the 15th biggest state?


Wumpus


[ Parent ]
The decision wasn't about corporatism by cam (2.00 / 0) #6 Tue Nov 14, 2006 at 06:51:42 AM EST
it was about the federal government having the authority to regulate the labor market - which they previously did not have. There is currently a Liberal Government in, who does not get much money raising from unions, but when they lose an election, the Labor Party will get in, and Workchoices will become a unionised piece of legislation. This also penalises states like Queensland who use provincial laws to increase economic growth.

cam
Freedom, liberty, equity and an Australian Republic

[ Parent ]
Aus Situation by jimgon (2.00 / 0) #8 Tue Nov 14, 2006 at 09:19:52 AM EST
I think of it wasn't for corporatism you wouldn't be having the issue with the concentration of power at the Federal level.  Corporations tend to like central power.  Makes it easier to deal with things if you have one place to go.  The labor situation seems like a symptom to me. 




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Technician - "We can't even get decent physical health care. Mental health is like witchcraft here."
[ Parent ]
corporations don't bother me by cam (2.00 / 0) #12 Tue Nov 14, 2006 at 09:56:10 AM EST
the great majority of discrimination, violence and illiberalism in Australian history has been through the hands of the federal and state government. They are the ones that need to be reigned in. I prefer a strong federal system where the states dominate so Canberra is limited in power. It is one of the things the bearded men got right when they federated, a century later it is nothing like that.

The major component of this decision is that the labor laws are now unitary and at the beck, call and whim of whichever government is in power at the federal level. So it will probably be alternately pro-union and anti-union every ten years when government changes.

There is now no competition between states in these areas, positive or negative. We just have one morass of homogeneous laws that get pumped out of bureaucracy happy Canberra.

cam
Freedom, liberty, equity and an Australian Republic

[ Parent ]
Corporations by jimgon (2.00 / 0) #18 Thu Nov 16, 2006 at 03:09:27 AM EST
All I say is be wary of corporations.  Especially corporations following the US model of claiming to be "legal persons" with the full right's of an individual.   




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Technician - "We can't even get decent physical health care. Mental health is like witchcraft here."
[ Parent ]
I'm no constitutional scholar by lm (4.00 / 1) #9 Tue Nov 14, 2006 at 09:25:12 AM EST
But it seems to me that the plain text of ``financial corporations formed within the limits of the Commonwealth'' implies any corporation formed inside of Australia which means that the federal government has the constitutional power to form pretty much any law it wants concerning virtually every modern corporation. It seems pretty broad to begin with.

There is no more degenerate kind of state than that in which the richest are supposed to be the best.
Cicero, The Republic
If you are really keen you can read by cam (2.00 / 0) #11 Tue Nov 14, 2006 at 09:52:08 AM EST
this 79 page brief [pdf], this is its summary;

The drafters of the Australian Constitution only gave the Commonwealth the ability to make laws on some 40 specific subjects or ‘heads of power’. Commonwealth legislation must be sufficiently connected with or, in the words of the Constitution, be ‘with respect to’ one of these heads of power to be valid.

• The Commonwealth was given strictly limited authority over industrial relations: it was only allowed to make laws for the ‘conciliation and arbitration’ of ‘interstate disputes’ over ‘industrial matters’.

• The Commonwealth and the States maintain six separate but overlapping industrial relations systems. There is no clear demarcation between federal and state systems, and employers must often comply with more than one set of obligations.

• Attempts to give the Commonwealth more industrial relations power in a number of referenda have been unsuccessful. Victoria ‘referred’ key industrial relations powers to the Commonwealth in 1996 but a similar referral from other States seems unlikely.

• The remaining option for creating a single federal industrial relations system is to use other ‘heads of power’ in the Constitution such as the corporations power.

Past industrial relations, labor laws etc; have been limited to s51 xxxv;

(xxxv.) Conciliation and arbitration for the prevention and settlement of industrial disputes extending beyond the limits of any one State:

Because that wasn't wide enough they went fishing in other areas to expand the power of xxxv. There have been referendums on this issue, which have failed. Federal parliament couldn't get what it wanted through referendum so it did it statutorily and got backed up by a High Court that has been pro-Canberra since the 1920s.

cam
Freedom, liberty, equity and an Australian Republic

[ Parent ]
I don't doubt that it gets complicated by lm (4.00 / 1) #13 Tue Nov 14, 2006 at 11:24:02 AM EST
I'm just saying the plain sense of the article you quoted from seems to be the interpretation in the present decision.

There is no more degenerate kind of state than that in which the richest are supposed to be the best.
Cicero, The Republic
[ Parent ]
An interesting comment by cam (2.00 / 0) #15 Wed Nov 15, 2006 at 10:20:07 AM EST

from here by a former k5er;

The reason that both the Foreign Affairs and Corporations powers are so broad and powerful is because of the doctrine which grew out of Engineers: that each power should be read as widely as possible in isolation from the others. Whatever is left after this process is still within the orbit of the States.

When you take this line, then the High Court’s decisions in the Franklin Dam case and this latest round are perfectly valid. They might do horrible violence to the intended functioning of the Constitution, but it’s legal.

Being read in isolation is the key there, if read alongside s51xxxv it does not make sense.

cam
Freedom, liberty, equity and an Australian Republic

[ Parent ]
I Chester's earlier comment more illuminating by lm (4.00 / 1) #16 Wed Nov 15, 2006 at 10:35:18 AM EST
I think that the most damning thing about post-Engineers decisions is the makeup of the court before Engineers: the Justices were to a man all drafters of the document. It held no puzzles to them, and intentionalism was the quite natural method of interpretation for judges who could simply cast their mind back to what they were thinking at the time.

This comment, if an accurate portrayal, suggests to me a very poorly written constitution. It implies that the obvious interpretation of the constitution is not really what the drafters had in mind.


There is no more degenerate kind of state than that in which the richest are supposed to be the best.
Cicero, The Republic
[ Parent ]
Once Griffiths left by cam (2.00 / 0) #17 Wed Nov 15, 2006 at 11:22:33 AM EST
who would be called "state's rights" in the US and Isaac Isaacs took over, the doctrine of the constitution being a 'living and breathing document" at the judicial's discretion also took over.

I wouldn't call it judicial activism, but rather judicial nationalism, as the high court decided the increasing nationalism meant the government should be national rather than federal. This is despite referendums being rejected at the ballot box almost constantly that tried to increase centralisation in Canberra.

I think the Au constitution fails it as it wants to be a republican constitution by tries to shoe-horn a westminster system in there. The Au constitution is poorly written, the bearded men were no Madisons or Hamiltons. It is pretty well recognized IMO that the constitution is not much chop.

cam
Freedom, liberty, equity and an Australian Republic

[ Parent ]
Australian High Court Decision | 18 comments (18 topical, 0 hidden) | Trackback