A shift in federal balance?
A need to confine the corporations power?
The submissions of the Australian Federal Government that the Workplace Relations Act 1996, amended by the Workplace Relations Amendment (Work Choices) Act 2005 was constitutionally valid prevailed with a majority of 5:2 by the High Court of Australia.1 This High Court decision inaugurated a shift of legislative power from the States to the Commonwealth.2 Since officially coming into effect as of 27 March 2006, the Work Choices Act has been the most comprehensive reformation in Australia in nearly a century, constantly sparking matters of controversy. 3
In the vision of Sir Samuel Griffith, principal author of the Australian Constitution, the notion of a federal balance is known as ‘coordinate federalism’. 4 This means that the Commonwealth and the States are not subordinate to each other, with the design of allowing both governing authorities to execute their responsibilities without intervention of the other. 5
1 Michael Johnston, ‘A Simplified National System?’ (2006) 15 (2) Polemic 2006 1, 1-2 at 12 April 2007. 2 Joe Catanzariti, High Court Holds Work Choices Valid, (2006) 12 (8) Employment Law Bulletin December 2006 81. 3 Iain Ross, John Trew and Tim Sharard, Bargaining Under Work Choices (2006) 1-3. 4 Leslie Zines, The High Court and the Constitution (4th ed, 1997) 1. 5 Tony Blackshield and George Williams, Australian Constitutional Law and Theory: Commentary and Materials (4th ed, 2006) 296. The concept of an ideal federal balance can never be established, as there are no definite answers. 6 Likewise, there is no certainty at the scope of s 51 (xx) of the Constitution. 7
With reference to the High Court’s interpretation of the ‘federal balance’ in the Work Choices Case, the keystone of this essay would be the argument that there has been a shift in it and that there should be a confinement with regards to the margins of s 51 (xx). Thus, the challenges of constitutional interpretation will be discussed first.
II CHALLENGES OF CONSTITUTIONAL INTERPRETATION
The High Court of Australia was divided in opinion as to whether a broad 8 or narrow 9 view of the Constitution should be adopted in deciding whether the Commonwealth's enactment of the Work Choices legislation under section 51(xx) of the Constitution was constitutional.
6Andrew Buckland and David Bennett, ‘The Work Choices Decision Litigation Notes’ (2006) 14 Australian Government Solicitor 1, 2 at 12 April 2007. 7 George Williams, ‘The Constitutional and a National Industrial Relations Regime’ (2005) 10 (1) Deakin law Review 498-500. 8 See, eg, Jumbunna Coal Mine, No Liability v Victorian Coal Miners Association (1908) 6 CLR 309, 367–8; See also A-G (NSW) v Brewery Employés Union of New South Wales (1908) 6 CLR 469, 611 (Higgins J). 9 See, eg, Commonwealth v Tasmania (Tasmanian Dam Case) (1983) 158 CLR 1, 82 (“There is nothing in the context of s 51 (xx) which compels the conclusion that the language in the power is expressed should be given a restricted interpretation… [W]e should recognise the power confers a plenary power with respect to the categories of corporation”.). It can be said that it is impossible to ascertain the precise scope of the corporations power, 10 which over the years, has led to multiple debates regarding its ambit and how the Constitution should be construed. 11
The primary reason why a narrow interpretation of the Constitution is preferable is due to the fact that the Constitution 'must be read as a whole and coherent document’. 12 As part of the dissenting judges' reasoning, Kirby J placed an emphasis on the application on the principle of coherency 13 in the process of explicating the...