Incorporating just about anything

The High Court has dismissed a challenge by state governments and unions to the Work Choices legislation (Callinan J and Kirby J dissenting). The full judgment is here.

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

474. A needless exercise? If s 51(xx) of the Constitution now provides a legitimate source for a comprehensive federal law with respect to industrial disputes, by inference it always did. All those hard-fought decisions of this Court and the earnest presentation of cases, the advocacy and the judicial analysis and elaboration within them concerning the ambit of s 51(xxxv) of the Constitution, were (virtually without exception) a complete waste of this Court’s time and energies. I say “virtually without exception” because occasional instances may exist where neither of the parties to an industrial dispute was a “constitutional corporation”. But if the cases in the law reports throughout the first century of the operation of the 1904 Act, and its 1988 successor, are examined, it is almost impossible to find a case which does not either name a constitutional corporation as a party or a corporate industrial organisation of employees or employers as one of the litigants. …

647. To resolve the intersection of these rules, it is necessary to recognise that a national Constitution, like any legal document, must be read as a whole, not in bits and pieces. What this fundamental principle requires in the present case is the confinement of the large powers of the Federal Parliament to enact laws with respect to corporations. That confinement would preserve the constitutional prescription that federal laws with respect to the subject of industrial disputes (as provided by s 51(xxxv) of the Constitution) have to comply with the features deliberately imposed by the Constitution on the Federal Parliament for that aspect of its lawmaking. That is, such federal laws may not be enacted by direct federal legislative provisions. Rather, they must involve, by the processes of conciliation and arbitration, the intervention of independent decision-makers who hear both sides.

648. To insist on this resolution of the intersecting principles fulfils this Court’s role as the guardian of the Constitution. It preserves decisions of this Court, delivered over more than a century, that have either held, or impliedly accepted, that the corporations power has to be read as subject to the industrial disputes power. The view now endorsed by the majority of this Court effectively discards a century of constitutional doctrine. It ignores the express structure of the Constitution and the language of the two heads of constitutional power in question in this case, each of equal validity and effect. I refuse to accept that our predecessors in this Court were so blind to the true meaning of the Constitution that their decisions, in such number and detail over the past hundred years, were pointless exercises in constitutional futility. Yet that is the hypothesis inherent in the decision now reached by the majority.

Update: More discussion at Larvartus Prodeo, where commenters point out that a News Ltd story (now corrected) that mis-identified the dissenting judges as Kirby J and Crennan J. Given that just about everyone following the case knew that Callinan J would dissent, this doesn’t bode well for tomorrow’s media coverage of the case. Bernard Lane, any chance we can get you back on the HCA beat?

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5 Responses to Incorporating just about anything

  1. Sacha says:

    Would anyone like to speculate on how broadly the Federal Parliament can now legislate using the corporations power?

  2. Matt Cowgill says:

    As far as IR goes, there is the potential for the definition of a ‘trading corporation’ to be interpreted so broadly that even State govt agencies may be considered constitutional corporations if the agency has trading activities (eg licensing agencies, hospitals, schools).

  3. derrida derider says:

    I thought Callinan was pretty feisty in dissent too.

    But my understanding (IANAL) is that the High Court’s hands were a bit tied by the precedent of the Engineer’s Case – it was the *really* dodgy judgement, and it was given by a very “liberal” court in favour of a Labor government, backed by the unions.

    As we see in the US Supreme Court, once you start giving judgements based on political convenience then it’s only a matter of time before your opponents get a majority and start using the precedents you set against you (I reckon some future Republican presidential candidate is going to regret the Supreme Court’s anointing of GWB in 2000). Fiat justitia ruat caelum is a much better approach.

  4. Michael Moriarty says:

    There have been a number of attempts to have industrial relations powers removed from the states by referendum. In every case these were defeated the years being 1911 1919 1926 1944 & 1946.

    It would appear to me that the will of the people has little to do with the reading of the constitution as a whole. To my knowledge under section 51 the states have only once ceded power to the Commonwealth that being Aboriginal affairs.

    Isn’t there a broader duty on the High Court to be responsive to the will of the people as whole and the majority of the states?

  5. Michael Moriarty says:

    I have been pondering a though why was a referendum required on the question of industrial relations in 1911. The High Court at the time was treating the Constitution as some what of a living document. Clarifying and even making changes to the Constitution.

    Why would they be so willing to do this? Well the High Court populated by the framer of the document. They knew what they meant when the words were written. Could we conclude that the constitution never intended to give such a broad powers to the Commonwealth?

    It would seem apparent that so staunched in their position were the framers that they refused to let this interpretation go through the courts. There steadfastness was reflected in the vote of the people of Australia…time and time again.

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