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?