Labour History: A Journal of Labour and Social History

Vitiating the Federal Principle: The High Court Work Choices Case, 2006

Labour History: A Journal of Labour and Social History (2007), 92, (1), 129–138.


HISTORICAL PERSPECTIVES ON CURRENT ISSUES Vitiating the Federal Principle: The High Court Work Chokes Case, 2006 Mark Hearn Its first and highest functions as an Australian court - not its first in point of time, but its first in point of importance - will be exercised in unfolding the Constitution itself. That Constitution was drawn, and inevitably so, on large and simple lines, and its provisions were embodied in general language ... Consequently ... it opens an immense field for exact definition and interpretation. Alfred Deakin, second reading debate on the Judiciary Bill, 1902} On 14 November 2006 the High Court of Australia handed down its decision in a case simply described in this commentary as Work Choices 2006.2 Essentially, and as Andrew Stewart and George Williams observe in Work Choices: What the High Court Said, a majority of the justices of the Court found the Howard Government's 2005 Work Choices legislation valid, agreeing with the Commonwealth's submissions that 'the corporations power should be given a broad interpretation'. The Constitutional head of power under which the Howard Government sought radical renovation of Australia's industrial relations system, including a sweeping transfer of responsibility from the states, was appropriately invoked by the Commonwealth. Just as significantly, the majority also 'rejected any suggestion that they should have regard to some kind of federal balance implicit in the Constitution'.3 These were conclusions based in a judicious interpretation of the history of nation building since Federation and the powers invested in the Constitution. This interpretation was challenged by an alternative reading of a dramatic and discursive history provided in a dissenting judgement: Justice Kirby drew attention to the ethics of nation building as reflected in the Court's regulation of work, and the Court's role in upholding the integrity of the industrial relations powers provided under the Constitution. This commentary follows the complex history elaborated and allusively echoed in the majority and dissenting judgements and begins with a reflection on the federal principles which the constitutional architects, led by Alfred Deakin, sought to embody in the High Court of Australia. The High Court and the Federal Compact In March 1902 the Attorney-General Alfred Deakin led the second reading debate on behalf of the Barton Government's Judiciary Bill, the legislation that would establish the High Court of Australia. In a speech immediately appreciated as one of the finest of his political career, Deakin set out the principles that defined the new Court's role in the federal system, the system to which Deakin had invested his aspirations for the nation and its people. The federal system, Deakin explained to a rapt audience in the House of Representatives and the gallery, embodied a series of compacts, 'between State and State, and between the Commonwealth and 129

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Hearn, Mark

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