Vitiating the federal principle : the High Court Work Choices case, 2006

On 14 November 2006 the High Court of Australia handed down its decision in a case simply described in this commentary as Work Choices 2006.2 Essentially, and as Andrew Stewart and George Williams observe in Work Choices: What the High Court Said, a majority of the justices of the Court found the Howard Government's 2005 Work Choices legislation valid, agreeing with the Commonwealth's submissions that 'the corporations power should be given a broad interpretation'. The Constitutional head of power under which the Howard Government sought radical renovation of Australia's industrial relations system, including a sweeping transfer of responsibility from the states, was appropriately invoked by the Commonwealth. Just as significantly, the majority also 'rejected any suggestion that they should have regard to some kind of federal balance implicit in the Constitution'.3 These were conclusions based in a judicious interpretation of the history of nation building since Federation and the powers invested in the Constitution. This interpretation was challenged by an alternative reading of a dramatic and discursive history provided in a dissenting judgement: Justice Kirby drew attention to the ethics of nation building as reflected in the Court's regulation of work, and the Court's role in upholding the integrity of the industrial relations powers provided under the Constitution. This commentary follows the complex history elaborated and allusively echoed in the majority and dissenting judgements and begins with a reflection on the federal principles which the constitutional architects, led by Alfred Deakin, sought to embody in the High Court of Australia.10 page(s