Report from the constitutional battlefront

   

Portrait of Justice Michael Kirby in this year’s Archibald Prize – you can see why it didn’t win

I have to confess that I’m one of those sad souls who’s actually been reading the daily transcripts of the current  High Court argument in the Workplace Relations Challenge (now into its 6th and last day of hearing).

As far as one can tell from the straws in the wind provided by the running dialogue between Bench and bar table,  I think the broad sweep of the Commonwealth’s legislation will attract fairly strong majority support (probably including Kirby J).   That is, the Court will reject the States’ primary argument that the corporations power (Constitution section 51(xx)) isn’t wide enough to permit the Commonwealth to legislate for the employment terms and conditions of employees of foreign, financial and trading corporations.

Nevertheless, some of the States’ subsidiary arguments on specific aspects of the new Howard regime  look like they might have at least some prospect of success.   Possibly the most interesting is an argument that the Commonwealth’s attempt to oust State legislation providing for remedies for harsh and oppressive termination is unconstitutional, in that it doesn’t successfully engage Constitution section 109 (inconsistency) because the Commonwealth merely purports to prohibit the States from entering the regulatory field of termination of employment without the Commonwealth itself occupying that field by positive legislation.   If that argument musters majority support, it would at least mean that the States would remain free to  provide remedies for harsh termination by employers covered by State awards.

On the central argument of the scope of the corporations power, some of the state submissions have sounded suspiciously like thinly disguised attempts to revive the old “reserved State powers” doctrine, which was decisively rejected by the High Court in the landmark Engineers’ Case way back in 1920.   That doctrine had held that Commonwealth legislative powers (including the corporations power) should be read rstrictively by reference to areas of activity that had supposedly been impliedly reserved for the States.     The disguised reserved powers line of argument  led to this amusing exchange during Monday’s argument:

KIRBY J: You are not trying under the guise of this history to revive the reserve powers notion, are you?

MR SOFRONOFF: Absolutely not, your  Honour. Absolutely not.

HAYNE J: Wash your mouth out with soap.

KIRBY J: I am just looking a bit suspiciously at you.

A little later, the late Justice Lionel Murphy got a guernsey in another interesting exchange involving Kirby J:

KIRBY J: You make the point in your written submissions that the submission of the Commonwealth is essentially the view that Justice  Murphy alone has held concerning the power under section  51(xx) and that therefore, in a sense, we are faced with the question of whether once again Justice  Murphy was prescient about the Constitution or whether the majority Justices have been right over the years.

MR SOFRONOFF: Yes. Your Honours will need to decide that.

KIRBY J: There is an irony in all this.

MR SOFRONOFF: What is that, your Honour?

KIRBY J: I am not here to answer your questions. Your Honours, could I get back to the dry law then?

 

About Ken Parish

Ken Parish is a legal academic, with research areas in public law (constitutional and administrative law), civil procedure and teaching & learning theory and practice. He has been a legal academic for almost 20 years. Before that he ran a legal practice in Darwin for 15 years and was a Member of the NT Legislative Assembly for almost 4 years in the early 1990s.
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Cameron Riley
15 years ago

that I’m one of those sad souls

More like necessary souls.

Patrick
Patrick
15 years ago

I too noticed those ones. I suspect that the last phrase, however, is incorrectly attributed to Kirby J, who hasn’t said ‘your honours’ in 25 years, and ought to have been Sofronof.

Mind you, Dixon never agreed with Engineer’s and sought to confine it as much as possible, a tradition Callinan J is going to continue in when he writes his judgement.

cs
cs
15 years ago

So, a C’wealth win would mean another win for Lionel the Great! Heh. Squirm you conservatives, squirm …

Aidan
Aidan
15 years ago

We can’t afford to win too many times …

c.f. Pyrrhus

Patrick
Patrick
15 years ago

To be fair to them, the High Court majority aren’t, or aren’t relevantly, ‘cultural conservatives’ – they are judicial conservatives, a different species.

To illustrate with American examples, because sadly I suspect most readers will be more familiar with them(!), Scalia J is a cultural conservative, but not really a judicial conservative, whilst Roberts CJ is both.

Back in Australia McHugh J is not culturally conservative but is judicially conservative, whilst Kirby J is neither, but Gummow Hayne Heydon and Gleeson are to varying degrees both. Callinan is perhaps the most culturally conservative (hmm, Heydon) but almost the least (apart Kirby) judicially conservative, at least it seems.

cs
cs
15 years ago

Ken, as any one told you lately that you’re a spoilsport?

Paul Watson
15 years ago

Ken,

I have been following the case also, but not as closely as you.

Two related aspects that interest me are (i) the lawyers’ picnic (a record 39 counsel – 16 QCs/SCs and 23 juniors – crammed into the High Court on Day 1), and (ii) its naked politics (plaintiffs are six Labor jurisdictions, while defendant is a lone non-Labor jurisdiction).

Bringing these two threads together, per my home state of Victoria, I reckon that Steve Bracks has a mighty hide to have his state as an all bells’n’whistles plaintiff in the matter. This is because Jeff Kennett gutted Victoria’s state-based industrial relation system in the early-mid 90s, and it hasn’t since been restored, despite seven years of Labor government.

Over-lawyering in general is pointless and wasteful; but what Victoria is doing in the High Court right now is such pure, law-less politicking that I wonder whether the C/W has thought of chucking the champerty http://paulwatson.blogspot.com/2003/08/vale-tony-abbott-tony-abbott-anti-one.html book at their team, with a view to sending them home (and so saving Victoria’s taxpayers a motza, to boot)

Patrick
Patrick
15 years ago

? If you take such an interest in Champerty, can you think of any case in history that offers the slightest glimmer of a suggestion of an emanation from the penumbra of Champerty or maintenance that Victoria is engaged in anything improper?

Paul Watson
15 years ago

Patrick,

Probably not – I suspect that traditionally governments have been effectively immune from accusations of not being proper plaintiffs (i.e. champerty). Governments are, or at least were, legitimate stakeholders in many “pies”

Patrick
Patrick
15 years ago

You can resent what you like. But it is historically illiterate to suggest that governments play a smaller role now than ‘traditionally’, without even considering the A-Gs right to intervene in any action (which isn’t being excercised here, unsurprisingly given that the S-G is a party), and absurd to even think of champerty or maintenance with respect of Constitutional litigation between the constituent goverments.

But don’t worry about your government, they introduced the Human Rights Charter last week, so you see, they are a real government after all ;)

Patrick
Patrick
15 years ago

Yes, that’s completely true, and counter-intuitively it is the S-G who is the respected lawyer. Paul would doubtlessly take greater solace from Ms Tate’s fiat than Mr Hulls’!

But that is in the context of standing, of course, and in no way suggests any derogation from the A-G’s traditional rights.

vee
vee
15 years ago

I read the first two or three of these during the event itself but soon I got tired of the non-interpretable legal mumbo jumbo.

Anyhow, the point of this comment is to try and find out when we find out the result?