Constitutional Choices in the Work Choices Case, or What Exactly Is Wrong with the Reserved Powers Doctrine?

Article excerpt

[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.]


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)


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. …