Wednesday, November 15, 2006

Quick Thoughts on the High Court, Work Choices and Federalism

Justice Callinan’s minority judgment in the recent High Court decision on the constitutionality of Work Choices legislation is proof (if any is needed) that it isn’t just “Howard-haters” and unionists who oppose Work Choices. If anything, it seems that when it comes to states’ rights, unions and State ALP governments are the last true conservatives left in Australia .

Certainly when I studied constitutional law in 1990 (I was taught by the not-exactly-conservative Andrew Fraser at Macquarie University Law School), it was conservative columnists, politicians and jurists who argued that Labor governments backed by ALP-appointed High Court judges were conspiring to transfer more State legislative powers to the Commonwealth.

Conservative jurists argued that our constitution was designed to provide the Commonwealth with only limited legislative powers as largely set out in Section 51 of the Constitution. They argued that activist judges were engaging in creative jurisprudence, ignoring the wording of the Constitution and the intent of its drafters.

Among politicians opposing creeping centralisation of legislative power was then Opposition spokesman on industrial relations John Howard. Today, Mr Howard is using the same powers and benefiting from the same allegedly creative jurisprudence to push through Work Choices.

It’s ironic that we see Quadrant editor Paddy McGuiness and ALP pre-selection aspirant George Williams on the same side defending conservative constitutional jurisprudence. But even George Williams is forced to concede that the Court’s decision is not surprising, given the “long line of decisions” since the 1920 Engineers’ case.

Similar arguments were raised last year by Professor Greg Craven. Craven described Work Choices as merely one element in ...

the greatest attack on federalism as a concept since World War II.

He also made reference to opposition to the laws by the Western Australian Liberal opposition.

Craven reminds us of the historical reality:

Labor always historically has tended to oppose federalism and conservatives have tended to support it. We now see a fundamental shift in Australian constitutional politics – a conservative government prepared to attack federalism.

Sir Robert Menzies will be turning in his grave!

© Irfan Yusuf 2006