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?
that I’m one of those sad souls
More like necessary souls.
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.
So, a C’wealth win would mean another win for Lionel the Great! Heh. Squirm you conservatives, squirm …
We can’t afford to win too many times …
c.f. Pyrrhus
cs
That was the Queensland submission. It doesn’t mean it’s actually true. It’s certainly true that Murphy J’s approach to the scope of the corporations power (especially in Tassie Dams) was very wide (referring to it as a “plenary” power, which several Justices this week suggested wasn’t an especially illuminating expression anyway). But the approach of Mason J and Deane J was almost as wide in Tassie Dams.
And in Dingjan, both Mason CJ and Toohey J said the corporations power was “plenary” i.e. essentially like Murphy J in Tassie Dams. Gaudron J (with whom Deane J concurred) also said the power was plenary, as did McHugh J. Gaudron J and McHugh J both said specifically that the power would extend to regulating the activities, functions, relationships or business of a foreign, trading or financial corporation. Prima facie the “relationships” of a corporation would surely include the employer/employee relationship. In fact Gaudron J fairly clearly thought that. Here’s what she said:
McHugh J also fairly clearly thought the power included power to regulate employment relationships of corporations:
The latter part of McHugh J’s formulation is there because the immediate issue in Dingjan was whether the corporations power allowed the Commonwealth to regulate contracts between sub-contractors to corporations who weren’t themselves corporations (i.e. they were sole traders). The Court held that it didn’t. However, as you can see from the bolded words above, McHugh J (like Gaudron J) didn’t seem to be in any doubt that the power certainly extended to allow regulation of the corporation’s employment relationships. Accordingly, the idea that the Commonwealth can only succeed if the High Court adopts a Murphy J approach to the corporations power is fanciful. Qld Solicitor-General Sofronoff’s apparent submission to that effect obviously struck Kirby J as amusing, but you’ll note that other Justices said nothing. That’s because any such assertion is nonsense.
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.
Ken, as any one told you lately that you’re a spoilsport?
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)
? 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?
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”
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 ;)
Yes, Paul appears to be expressing grumpiness largely for its own sake. Nevertheless, if we’re talking about the A-G’s fiat and right of intervention in the public interest, it’s worth highlighting this passage from the judgment of Gudron, Gummow and Kirby JJ in the Bateman’s Bay case:
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.
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?