Constitutional choices in the Work Choices case, or what exactly is wrong with the reserved powers doctrine?

• Jurisdiction: Australia
• Date: 01 April 2008
• Author: Aroney, Nicholas

[The decision of the High Court in the Work Choices Case presents a paradox. It is possible on one hand to read it as a revolutionary decision which has up-ended our conventional understanding of the scope and nature of the Commonwealth's power over industrial relations, with significant long-term implications for the balance of power between Commonwealth and state governments. On the other hand, it is possible to read the outcome as entirely predictable in terms of established principles and methods of constitutional interpretation, themselves the culmination of a long line of cases dealing with federal legislative power generally and the corporations power in particular.

In this article, it is contended that the paradoxical nature of the Work Choices Case is best understood by reference to a series of interpretive choices that have been made by the High Court over the course of its history and which are recapitulated in the joint judgment. Reading the case in this way, it is argued, enables us to understand both the significance of the outcome and the predictability of the reasoning. It also helps us to understand the conundrum faced by the dissenting justices, who wished to resist a decision that would radically overhaul the balance of power between the Commonwealth and the states. Such resistance required the repudiation of a series of established conventions of constitutional interpretation, as well as entailing a return to the idea that in determining the scope of Commonwealth powers it is both legitimate and desirable to take into consideration the scope of power retained by the states. This latter aspect, however, presents us with the question: what exactly is wrong with the reserved powers doctrine? It is argued that, when the doctrine is understood and applied in its most sophisticated, interpretive form, the answer is: not much at all.]

CONTENTS I Introduction II Work Choices III Constitutional Heresy IV Constitutional Orthodoxy V Constitutional Choices A The Majority B Interpretive Choices of the Majority C Callinan J D Kirby J VI Conclusions GLEESON CJ: Yes, Mr Solicitor for New South Wales.

MR SEXTON: If the Court pleases. This is a case about the division of legislative power under the Constitution between the Commonwealth Parliament and the Parliament of the States. It raises the question ...

KIRBY J: Is that quite right? Is it not about the extent of the power of the Federal Parliament?

MR SEXTON: Combined with section 109, your Honour, it is a question about division, we would say.

KIRBY J: It sounds to have the ghosts of the reserve powers clanking ...

MR SEXTON: No, there is no suggestion of that, your Honour. (1)

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. (2)

I INTRODUCTION

In New South Wales v Commonwealth (3)--the well-known 'Work Choices Case'--a 5:2 majority of the High Court of Australia upheld the Workplace Relations Amendment (Work Choices) Act 2005 (Cth) ('Work Choices Act') (4) as validly enacted under the Commonwealth's corporations power. (5) This Act effected a far-reaching transformation of Australian industrial relations law, displacing the existing federal system of compulsory conciliation and arbitration based on the industrial arbitration power (6) and excluding the operation of a range of state and territory workplace regimes.

The case presents a paradox. On one hand, it is possible to read it as a revolutionary decision which has up-ended our conventional understanding of the extent of the Commonwealth's power over industrial relations and corporations, with far-reaching implications for the balance of power between the Commonwealth and the states. Describing the decision as 'a shipwreck of Titanic proportions', Greg Craven has stated that '[n]ot since the 1920's [sic] has the Court struck such a devastating blow against Australian federalism.' (7) Focusing upon its implications for the regulation of workplace relations, Ron McCallum similarly described the case as the most significant change in the 'constitutional contours' of federal-state relations delivered since 1920. (8) On the other hand, it is also possible to read the decision as the entirely predictable application of long established methods of interpreting federal legislative power. As George Williams has remarked, in spite of the 'extraordinary policy and political consequences' of the outcome, (9) the Work Choices Case was 'a very orthodox decision' which came as no surprise to informed commentators. (10)

Thus, there are two very different assessments of the significance of the case. How is it best understood? Is the decision revolutionary? Is it entirely conventional? Or is it somehow both?

In this article, I argue that the decision is best understood--that its paradoxical character is best explained--by reference to a series of interpretive choices that have been made by the High Court over the course of its history and which are recapitulated in the Work Choices Case. These choices are of utmost significance--they are indeed revolutionary--when critically assessed in light of the text, structure and underlying principles and purposes of the Constitution. And yet, they are welt-established choices that have become the conventional rudiments of the High Court's constitutional jurisprudence. To get to the heart of the Work Choices Case, therefore, it is necessary to recount these choices, to show what they are and why they are significant, and to show how they are fundamental to the Court's reasoning. Moreover, because they are choices, it is also necessary to show how the course of Australian constitutional interpretation might have been different by explaining the forks in the road and indicating the alternative paths that might have been taken.

At a pivotal point in its history, the High Court deliberately chose between two fundamentally different approaches to the interpretation of the legislative powers of the Commonwealth and the states. The first approach was one commonly known as the 'reserved powers doctrine' and associated with the judgments of the Court under its first Chief Justice, Sir Samuel Griffith. The other is generally associated with the Court's famous decision in Amalgamated Society of Engineers v Adelaide Steamship Co Ltd ('Engineers' Case'), delivered under the intellectual leadership of Sir Isaac Isaacs. (11) In the fateful Engineers' Case, the Court anathematised the conceptual foundations of the reserved powers doctrine and substituted an alternative approach that has become the Court's conventional stance ever since.

In this article, I argue that the reserved powers and Engineers' doctrines cannot properly be understood or evaluated without first unscrambling the two doctrines into their constituent elements and then identifying the different versions in which each doctrine has been presented. As to this second task, I contend that three versions of both doctrines are to be distinguished. These I label respectively, and for reasons that will become apparent, the abridged, absolute and interpretive versions of the reserved powers doctrine and the abridged, testamentary and methodological versions of the Engineers' doctrine. Moreover, because the reserved powers doctrine has long been regarded as heresy, its influence in constitutional interpretation has been camouflaged: only particular elements of the doctrine have been (at times) utilised in various configurations, including the idea of 'federal balance', a concept which has also been advanced in abridged, absolute and interpretive forms.

When the various elements and different versions of the reserved powers, federal balance and Engineers" doctrines are clearly distinguished, it becomes possible to identify their respective roles in the many cases in which the High Court has interpreted the scope of the Commonwealth's legislative powers. Analysing the Work Choices Case in these terms enables us not only to understand the paradoxical character of the decision, but also to expose the underlying constitutional jurisprudence to critical analysis. When the Work Choices Case is understood as presenting a series of interpretive choices, the apparent inevitability of the outcome, as presented by the majority of the Court, begins to dissolve before our eyes. Furthermore, when we understand the issues presented by the case as involving elements of reserved powers reasoning, it becomes easier to comprehend the conundrum in which the plaintiffs and the two dissenting justices, Kirby and Callinan JJ, found themselves. This dilemma was one of wishing to resist an outcome that would radically overhaul the balance of power between the Commonwealth and the states, but where the only truly effective path of resistance involved repudiating a whole line of established conventions of constitutional interpretation. The crucial strategic question was whether to challenge those conventions head-on through an openly acknowledged resuscitation of the reserved powers doctrine, or whether to try and show that the Work Choices Act could not be supported by the corporations power when that power was read according to orthodox methods of interpretation. Such was the technical cleverness of the legislation, however, that a conventional attack was unlikely to succeed, and so a radical path beckoned. And yet, constitutional law remains a highly traditional and conservative discipline--in what other body of Australian law are labels such as 'orthodoxy' and 'heresy' so commonly and forcefully used? (12) Thus, the path proposed by the dissenters had to be couched in conventional terms.

In the majority's joint judgment in the Work Choices Case, the plaintiffs' arguments were rejected on the basis of a caricature of the reserved powers...