The decision of NSW vs Commonwealth of Australia, WA vs Commonwealth etc is on the austlii website. There have been referendums to modify Section 51xx to give the federal government industrial powers but they failed. The High Court decision discounts these failures in their decision.

The Corporations power is Section s51xx;

51.The Parliament shall, subject to this Constitution, have power to make laws for the peace, order, and good government of the Commonwealth with respect to: -

    (xx.) Foreign corporations, and trading or financial corporations formed within the limits of the Commonwealth:

The decisions writes that the referendums to modify s51xx were in 1910, 1912 and 1926. I guess the 1926 one was the Industrial Matters referendum and the 1912 is either the 1913 Corporations or Industrial Matters. The 1911 Trade and Commerce referendum must have been the other one.

The decision contains;

In 1910, 1912 and 1926, proposals were put to referendum for amendment of both par (xx) and par (xxxv) of s 51. The amendments proposed to s 51(xx) would in each case have extended the power by authorising the Parliament to make laws with respect to the "creation, dissolution, regulation, and control" of corporations. The amendment proposed to s 51(xxxv) would have extended the federal Parliament's power, in 1910, to making laws with respect to (among other things) "[l]abour and employment, including ... [t]he wages and conditions of labour and employment in any trade industry or calling"; in 1912, to making laws with respect to "[l]abour, and employment, and unemployment"; and in 1926, by omitting from s 51(xxxv) the words "extending beyond the limits of any one State".

Those referendums look to be good explicit constitutionalism trying to expand centralised power through the constitution rather than statutory means and hoping the High Court agrees. Which is what Workchoices was. The referendums were rejected by the electorate which has been fairly consistent for Australian referendums that try to centralise power.

The decision argues that these referendums cannot be used to determine the constitutionality of the challenges to Workchoices as the questions are not the same;

There are insuperable difficulties in arguing from the failure of a proposal for constitutional amendment to any conclusion about the Constitution's meaning. First, there is a problem of equivalence. The argument must assume that the proposal which was defeated was as confined as is the question that now falls for determination. If the proposal was wider than the immediate question for decision, it is not open to conclude that a majority of those to whom the proposal was put (whether they are described as "the people of Australia", the "sovereign force" or, as in s 128, "the electors qualified to vote for the election of members of the House of Representatives") reached any view about the ambit of the (unamended) constitutional power, or that they reached any view about that part of the proposal that appears to deal with the immediate issue.

None of the proposals relied on in this matter was so confined. And the fact that the early proposals (of 1910 and 1912) were prompted by the decision in Huddart Parker does not confine those proposals to the questions that now fall for decision in the present matters.

I can understand what they mean, and why they would reserve that right, but Lionel Murphy's Doctrine of Constitutional Implication looks for the implied, rather than explicit, meanings in the constitutional , legislative practice and wider society in interpreting these decisions. The constitution is ultimately the people's, despite the Judicature having the end authority to interpret the constitution, so with the doctrine of constitutional implication I find rejecting the referendum results as a bit disingenuous.

The decision also claims that referendum's cannot be interpreted as the people's will toward the constitution;

few referendums have succeeded. It is altogether too simple to treat each of those rejections as the informed choice of electors between clearly identified constitutional alternatives. The truth of the matter is much more complex than that.

For example, party politics is of no little consequence to the outcome of any referendum proposal. And much may turn upon the way in which the proposal is put and considered in the course of public debate about it. Yet it is suggested that failure of the referendum casts light on the meaning of the Constitution.

Did they just call the Australian electorate idiots and a bunch of sheep? The failure of a referendum does cast the popular will and feeling toward the constitutional nature of the referendum; if people want it, it will pass, if they do not, it will fail.

I find this dismissal by the High Court of the popular process for constitutional reform as not possibly having any meaning or bearing on their decision as disingenous, especially when the Doctrine of Constitutional Implication is an entirely artificial one designed to enable High Court activism.

That doctrine has led to increasing centralisation of power in Canberra - non-partisan too I should add - both major parties have benefited from it. The High Court has been as anti-federalist as Parliament has. The decision argues in favour of modern interpretation of what should be explicit language, and that a referendum's rejection of additional explicit language has no bearing on modern interpretation;

Finally, is the rejection of the proposal to be taken as confirming what is and always has been the meaning of the Constitution, or is it said that it works some change of meaning? If it is the former, what exactly is the use that is being made of the failed proposal? If it is the latter, how is that done? The plaintiffs offered no answers to these questions.

I disagree with that. Referendum outcomes are the popular voice on the constitution. If the electorate rejects a constitutional amendment it has set a benchmark that must be met for those powers to become constitutional in the future. It is a conservative approach but a right and just one. For the Commonwealth to adopt those powers in the future, they should only be able to do so by constitutional referendum.

The decision also argues for separation of powers and constitutional authority on the High Court to have the final interpretation;

Constitutional construction is not so simple a process as the argument from failed referendums would have it. If, as is so often the case, a question about the meaning and operation of the Constitution is controversial, it is for this Court to determine the answer that is to be given. Chapter III, particularly s 76(i), indicates that the determination of matters arising under or involving the interpretation of the Constitution is committed to the judicial power of the Commonwealth. The phrase "or involving its [the Constitution's] interpretation" encompasses later curial disputation concerning earlier decisions respecting the Constitution[169].

Such decisions may also be followed by the passage of a proposed law for the alteration of the text of the Constitution pursuant to s 128. But the opening words of s 128, "[t]his Constitution shall not be altered except in the following manner ...", must be read with those of Ch III to which reference is made above. The constitutional text must be treated as the one instrument of federal government.

The decision sums up the past referendum's influence on the case as;

The failure of successive referendums to alter s 51(xx) and s 51(xxxv) provides no assistance in the resolution of the present matters.

I have a hard time reconciling that comment when the High Court uses implication as its guiding doctrine. We chose the technology of formalised constitutionalism of which referendums are a hard power component of change; a constitutional rejection is as valid as a passed referendum in defining constitutional law.

Yes, the judicature as the final say on the interpretation of the constitution, but constitutional law does not exist in isolation; and yes, the questions may not be the same, but if the High Court judges are prepared to go into past constitutional decisions to determine the answer, then they must be prepared to take into account what has been rejected too.

A referendum is an explicit rejection or constitutional addition that comes before the High Court in the constitutional hierarchy. It has to, a referendum is the only explicit way to modify the language of the constitution itself as the highest law in the land; Constitution -> Referendum -> High Court ...

Centralisation has been an on-going pursuit by Canberra and it has been aided by the High Court, enough that in the 1920s this decision would have had to go to referendum and in 2006 it can be pushed through statutorily.

There is no political or judicial will to stop this centralisation. At the last federal election the Democrats and Greens had formal policies to abolish the states. The Labor have it as an informal policy and John Howard had been quoted in the media with the comment that if Australia was done all over again, there would be no states.

Federalism is badly out of vogue.

cam [IANAL]

Cam Riley: South Sea Republic. Freedom, liberty, equity and an Australian Republic.

Comments
  • cam . # .
    Fair dinkum this is a hard read: I don\'t know which judge is writing this, but it is in a different voice to the first part of the decision;

    731 The history of the referenda cannot be ignored[850]. Kirby J said this in Durham Holdings Pty Ltd v New South Wales[851]:

      \"Nevertheless, the rejection by the electors of the Commonwealth (including those in New South Wales) of a proposed amendment to the federal Constitution, which would have prevented or invalidated legislation such as the amending legislation adopted by the New South Wales Parliament in 1990, suggests a reason for special caution when this Court is invited, but twelve years later, effectively to impose on the Constitution of the State a requirement which the electors, given the chance, declined to adopt.\"

    732 What happened in the referenda to which I have referred is particularly compelling because of the repetitiveness and ingenuity of the attempts made by the Commonwealth to gain the power which in this case it now says it has always had. The Court should not disregard that history. The people have too often rejected an extension of power to do what the Act seeks to do for that.

    To ignore the history would be, not only to treat s 128 of the Constitution as irrelevant, but also for the Court to subvert democratic federalism for which the structure and text of the Constitution provide. As I observed in Sweedman v Transport Accident Commission[852], constitutions, State and federal are not the property of governments of the day.

    and;

    734 In summary I would regard the speeches for the referenda, the referenda and their results as relevant to the proper construction of the Constitution for these reasons.

    735 The speeches in Parliament for the Bills for them, having regard particularly to the experience, eminence, legal qualifications and knowledge of the speakers, throw much light on the founders\' intentions and the understanding of the meaning of the Constitution of informed, legally qualified, politically astute, responsible people.

    The meaning of the words of the Constitution may not change following, and as a result of the failure of a referendum, but it is a distortion of reality to treat the failure as other than reinforcing the received meaning of the words which prompted the attempt to change or enlarge them.

    Equally, a successful referendum may provide relevant evidence of received meaning immediately before the vote in it. But in addition, unlike in the failed referenda considered in this case, a successful referendum would also indicate the people\'s discontent with that received meaning. True it is that the construction of the Constitution is a matter ultimately for the Court, aided by qualified advocates presenting arguments to it, but even this Court should not be blind to the inescapable fact that the people do have, by virtue of s 128, a special and unique constitutional role to approve or veto a change.

    That, they can only do if they have an understanding of what is sought to be changed. For my own part I do not think it legally radical in the special constitutional setting of s 128, to attribute to the people the same understanding of meaning and of power as their elected representatives who legislated for the referenda to effect the changes, and as the failed referenda show, to be content with them. It is no answer as the Commonwealth submissions implied, that s 128 raises a high hurdle for constitutional change. So it does, and intentionally so.

    If Parliament cannot persuade the people to change, it is not for this Court to treat the people\'s will as irrelevant by making the change for them. Every one of the 36 proposals which have failed at a referendum has been accompanied by dire warnings of doom to the Commonwealth and the people, yet the nation prospers and grows.

    cam
  • cam . # .
    I think that was Callinan: nt

    cam
  • avocadia . # .
    Dare I say his name?: I await eagerly the next column/blog entry by a certain Daily Telegraph manatee denouncing \"activist judges\" in a similar vein to, oh I don\'t know, how about:

    Activist judges in the High Court have dangerously flirted with the notion of implied rights but fortunately, under the guidance of the current Chief Justice Murray Gleeson, the common-sense approach has usually prevailed.
  • adam . # .
    You\'re a better man than I: I noticed this vague glimmer of non-doom though. Help us Bill of Rights the judge says - you\'re our only hope.

    759 The two justifications selected for a departure from settled authority, \"sense of justice\" and \"social welfare\", are less likely to warrant a departure from accepted doctrine in constitutional cases in this country, in which the absence of a constitutional bill of rights means that it is for legislatures rather than the courts to identify and make provision for these, especially the latter. More basal considerations such as \"ascertainment of founders\' intent\" and \"maintenance of the federation established by the Constitution\" are, in my opinion, safer yardsticks, and more in keeping with the proper role of a Justice of this Court.

    I think the reasoning is dubious - it\'s not clear to me why \"social welfare\" should be a more compelling reason than \"individual liberty\" - are they asking for a stick to beat the executive with? Why should a bill of rights be the only constitutional reform supported by the justices that sit in our courts?
  • cam . # .
    I suspect they want one as they have been: contorting themselves in past cases to try and derive legislative protections for things like freedom of political speech. I used to think it was a good thing that we didn\'t have a bill of rights as I thought implied showed greater foundational strength, but it doesn\'t, it is more like spaghetti code that exists outside of the system requirements. So it is largely hidden and arbitrary in execution.

    I don\'t understand why social welfare and sense of justice would require rights anyway, both those are well within the rightful domain of the legislature. Liberty is what is intended to be protected with a bill of rights. Maybe they think that the absence of arbitrary government through rights, which the positive is uniformity of law, will help. Don\'t see how.

    The other thing that struck me reading through that decision was there is a doctrine, inference, proposition, construction, etc for everything. Basically there are so many to choose from that it gave the impression they can be used to justify any decision or outcome. Certainly the majority and dissent used the same information for different conclusions.

    cam