The Constitutional question

Jeff Shaw

It is gratifying that not all 'think tanks' are dominated by neo-conservatives. The Evatt Foundation plays a valuable role in diversifying Australian public debate, and Dr Sheil's book exemplifies this contribution.

In the chapter which I co-wrote with Monika Ciolek, an able and enthusiastic law student, we have endeavoured to argue that the most recent and radical federal changes to industrial relations stretch the corporations power in the Constitution - s51(20) too far.

Obviously, that power was intended to empower federal regulation of corporations. And we know from the case of Actors Equity v Fontana Films, which (generally speaking) upheld the validity of the secondary boycott powers in the Trade Practices Act, it extends to the protection of corporations from hostile attack.

But is the corporations power a general charter for the regulation of labour relations? Does it empower the general over-riding of State industrial laws dealing with intra-State disputes? The framers of our federal Constitution would have found an affirmative answer to that question a surprising conclusion. At the insistence of H B Higgins, they thought they were being quite adventurous in providing a specific industrial power - s51(35) - to allow the conciliation and arbitration of inter-State employment disputes.

"An irony of history is that a relatively conservative, intellectually impressive High Court might be attracted to such restless thoughts."

So, if one adopted what Justice Scalia of the United States Supreme Court has termed an 'originalist' theory of constitutional interpretation, it is respectably arguable that these changes based on the corporations power constitute a misuse and undue extension of that power.

Chief Justice Griffith in Huddart Parker & Co v Moorehead (1909) 8 CLR 330 took the view that the corporations power allowed the Commonwealth to make such laws with respect to the operations 'as are otherwise within its competence'.

These observations have been doubted, and (perhaps) over-ruled. But they may, nonetheless, have a resonance with a (relatively) conservative black letter law High Court with an affinity with an 'originalist' view of the Constitution test; that is, what did the formulators of the Constitution actually intend?

An irony of history is that a relatively conservative, intellectually impressive High Court might be attracted to such restless thoughts.

Dr H V Evatt, of course, both a fine High Court justice and scholar, during his time on the Bench in the 1930s produced, quite apart from his judgments, substantial works: The King and his Dominion Governors, Injustice within the Law, Rum Rebellion, and the biography of W A Holman (Australian Labour Leader).

But there was a discernible theme of support for federalism in his judgments, perhaps influenced by his perception of what State Labor governments could do for workers, to the extent that the biographer of Sir Owen Dixon (Phillip Ayres) felt able to characterise him as a 'States' righter(s)' [Owen Dixon, 2003, Melbourne, p 59].

There is some resonance to be found in Evatt's jurisprudence in this respect and the current industrial relations debate.

Even assuming the proposed Bill does get through Parliament (in particular, the Senate) and does survive, in whole or in part, constitutional challenge, there is nonetheless a good case for retaining a State industrial relations system, such as that in New South Wales.

Any so-called 'unitary system' would be patchy and unsatisfactory. It would not include the bulk of the State public sector (because the great departments of State (education, transport, health, attorney-generals, community services and the like) are not trading corporations. Local government would (arguably) not be comprehended. Non-corporate small business would be excluded.

In any event, the State systems have valuable work to do in enforcing occupational health and safety laws and in dealing with unfair contracts and arrangements for the performance of work.

I congratulate the Evatt Foundation and Christopher Sheil for the production of this book.

The Hon Jeff Shaw QC is the former NSW Attorney General and these are his remarks on launch of The State of the States 2005 on 14 November 2005 at NSW Parliament House. With Monika Ciolek, Jeff is a contributing author in the 2005 issue of The State of the States 2005, focusing on the State of Industrial Relations.

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