Constitutional interpretation is not a topic that usually interests anyone other than lawyers, yet, it is arguable it is the most likely cause of John Howard’s current electoral problems.
The High Court delivered judgment in the WorkChoices case in November 2006. Had the majority applied the principles of constitutional construction, relied upon by Callinan J in his dissenting judgment, the Court would have decided that Commonwealth’s legislation, based as it was on the Constitutional corporations power, was unconstitutional.
As industrial relations is the only significant policy on which Kevin Rudd has disagreed with the government, it is difficult to see what other important policy Labor could use to generate the level of popularity it currently enjoys.
According to the government, its legislation is the cause of our economic growth. According to Labor, employment has turned into slavery. According to five members of an unelected elite (Phillip Ruddock’s description of the High Court), WorkChoices is a valid exercise of the Commonwealth’s power to make laws for the “the peace order and good government” of corporations.
However, because corporations impinge on almost every aspect of life, both Callinan and Kirby JJ warn that the majority’s decision will expand the Commonwealth’s power over most areas currently regulated by the states.
It is ironic that abolishing the states was once Labor Party policy, but until this decision it was never possible.
There would be no Australian adult who would not know that Australia enjoyed a federal system of government. Unfortunately, neither the word federalism nor the concept appears in the majority’s decision.
The states had argued that the Commonwealth’s specific industrial relations power limited Commonwealth legislation in that area. Despite a century of High Court decisions to the contrary, the majority held that the corporations power in the Constitution allowed the Commonwealth to regulate contracts of employment.
Kirby J accepts that new meanings are possible: It is part of the genius of our system … that perceptions of the meaning of the Constitution change over time … Context necessarily impinges on constitutional interpretation (442).
And that understanding factors such as history, economics, commerce and emerging nationhood is necessary for Constitutional interpretation, because they: … deny the attempts to confine the meaning of the constitutional text either to the expectations of the founders in the Constitutional Conventions or the reasoning of earlier Justices of this Court (442).
But, in the end, he does not articulate a principle of construction, but merely relies on a century of High Court precedents to hold the Commonwealth’s legislation unconstitutional: I refuse to accept that our predecessors in this Court were ... blind to the true meaning of the Constitution … (608).
Justice Callinan, says, of the High Court’s principles of construction: I search for consistency of interpretation of the Constitution by the Justices of this Court but cannot find it because it does not exist (738).
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