G return residence class (BB) (subcl X PDE WorkChoices Case.pdf X + X -> C File | C:/Users/Rayan/OneDrive/Desktop/Constitutional%20Law/Mid-Sem%20Assessment/WorkChoices%20Case.pdf Not syncing Contents 87 of 410 Q + | Page view |A 183 25/52 v X _ Erase A 9 A need to limit s 51(xx)? 183 An important element underpinning this argument, and indeed all of the plaintiffs' arguments about s 51(xx), was that it is necessary to limit the reach of the power. The step of taking "a different approach"2 to s 51(xx) was said by Dawson J to be required because s 51(xx) is a power with respect to persons. But what necessarily underpins the proposition that a different approach is required to the task of determining whether a law is supported by s 51(xx) is an implicit assertion about federal balance and, in particular, an implicit assertion that to give the ordinary scope to the legislative power with respect to the particular persons mentioned in s 51(xx) could or would distort that balance. So much was made explicit by Gibbs CJ in Fontana Films23 - "extraordinary consequences would result if the Parliament had power to make any kind of law on any subject affecting such corporations". And if there is no underlying assertion about federal balance, there could be no reason to adopt a different approach to determining the sufficiency of connection between an impugned law and the relevant head of power. The bare fact that s 51(xx) is a power to legislate with respect to particular persons rather than functions, activities or relationships, requires no such conclusion. 184 Each of the arguments advanced by the plaintiffs proffered a form of limit on the reach of s 51(xx): only "external" relationships, "something more" than object of command, "distinctive character" or "discriminatory operation". As noted earlier, because the new Act prescribes norms which regulate or affect the relationship between constitutional corporations and their employees, the limits proffered by the plaintiffs must be seen as contentions about what is meant by a law being "with respect to" constitutional corporations. Type here to search O @ goc ~ D 0 0 ((4' ) ENG 9:19 AM 5/09/2021n n: I G retum residence class (BB) (subcl X @ WorkChoices Casepdf X -I X G (D File I C:/U5ers/Rayan/OneDrive/Desktop/Constitutiona|%20Law/Mid-Sem%20A55essment/WorkChoices%20Case.pdf a {3 {'5 G. of410 Q + C) I {B Pageview I A' 183 25/52 A V X 2 Erase I '3] [23) I * '.=_ Contents | 88 185 Again, as noted earlier, it is well established that the heads of legislative power in s 51 are to be construed "with all the generality which the words used adrnit"237. But no question arises in these matters about what are constitutional corporations\". The existence of such bodies and the new Act's engagement with them are assumed. 186 From time to time reference will be found in the cases to powers in s 51 being "plenary". To describe s 5100:) as a "plenary" power is at best unhelpful in the present matters and, at worst, would be misleading. It is unhelpful because neither the identity nor the characteristics of the persons who are the subject of s 51(xx) is in issue. It would be misleading if it suggested that some new and wider test was to be applied in deciding whether a law is a law with respect to those persons. 187 Reference has often been made in the cases\"; to what are said to be the possible consequences of concluding that a law whose object of command is only constitutional corporations is a valid law. In Huddart Parker, Higgins I spoke2 0 of possibilities that he saw as distorting constitutional arrangements. Reference was made to the possibility of the federal Parliament framing a new system of libel laws applicable to newspapers owned by corporations, and to licensing Acts creating a new scheme of administration and of offences applicable only to hotels belonging to corporations. 188 In part, reference to such consequences seeks to present possible social consequences that it is said could ow if further legislation is enacted, and which it is said are to be seen as absurd or inconvenient, as a reason to conne the reach of the legislative power. Section 51(xx), like other powers, should not be given a meaning narrowed by an apprehension of extreme examples and distorting I -.. a a a a e G -=9Am'\"\"65335331 %> I. ,0 Type here to search 0 lD[ G return residence class (BB) (subcl X PDE WorkChoices Case.pdf X + X -> C File | C:/Users/Rayan/OneDrive/Desktop/Constitutional%20Law/Mid-Sem%20Assessment/WorkChoices%20Case.pdf Not syncing Contents 89 of 410 Q + 2 Page view |A 183 25/52 v X _ Erase A possibilities of its application to future laws?". While there may be room for debate about whether the particular examples proffered by Higgins J are properly to be characterised as extreme examples or distorting possibilities, what is plain is that, as Professor Zines has written 42: "It is clear that any power of the Commonwealth, on the most restricted or the widest interpretation, might, if the federal Parliament were so inclined, produce results which, when viewed together with State laws, are inefficient, socially bad or downright ridiculous. ... That does not mean that the powers concerned should be construed restrictively so as to prevent those results. The object of the power, as an aid in its interpretation, is not to be seen as an accumulation of desirable laws." (emphasis added) 189 The plaintiffs' arguments proffering limits to the reach of s 51(xx) were not confined, however, to arguments about the social or political utility of parallel systems of laws dealing in the one case with constitutional corporations and in the other with all other persons. Rather, the arguments about consequences went further than postulating absurd or inconvenient social consequences and explicitly or implicitly invoked notions of federal balance. 190 No party sought to challenge the approach to constitutional construction that underpinned the decision in the Engineers' Case to reject the doctrine of implied immunities and the doctrine of reserved powers. But it is important not to overstate either the propositions about constitutional construction applied in and after the Engineers' Case or the consequences of their adoption. 191 The doctrine of implied immunities, or as Sir Robert Garran described it243, "the reciprocal doctrine of non-interference", was founded in an implication. Type here to search O @ goc ~ 0 0 0 641 ) ENG 9:19 AM 5/09/2021G return residence class (BB) (subcl x PDE WorkChoices Case.pdf X + X -> C File | C:/Users/Rayan/OneDrive/Desktop/Constitutional%20Law/Mid-Sem%20Assessment/WorkChoices%20Case... Not syncing Contents 89 of 410 Q + 2 Page view IA 183 25/52 AV X Erase Heydon J Crennan J 79. possibilities of its application to future laws?". While there may be room for debate about whether the particular examples proffered by Higgins J are properly to be characterised as extreme examples or distorting possibilities, what is plain is that, as Professor Zines has written242: "It is clear that any power of the Commonwealth, on the most restricted or the widest interpretation, might, if the federal Parliament were so inclined, produce results which, when viewed together with State laws, are inefficient, socially bad or downright ridiculous. ... That does not mean that the powers concerned should be construed restrictively so as to prevent those results. The object of the power, as an aid in its interpretation, is not to be seen as an accumulation of desirable laws." (emphasis added) 189 The plaintiffs' arguments proffering limits to the reach of s 51(xx) were not confined, however, to arguments about the social or political utility of parallel systems of laws dealing in the one case with constitutional corporations and in the other with all other persons. Rather, the arguments about consequences went further than postulating absurd or inconvenient social consequences and explicitly or implicitly invoked notions of federal balance. 190 No party sought to challenge the approach to constitutional construction that underpinned the decision in the Engineers' Case to reject the doctrine of implied immunities and the doctrine of reserved powers. But it is important not to overstate either the propositions about constitutional construction applied in and after the Engineers' Case or the consequences of their adoption. 191 The doctrine of implied immunities, or as Sir Robert Garran described it's, "the reciprocal doctrine of non-interference", was founded in an implication. Type here to search O @ goc ~ D 0 0 (( 41) ENG 9:20 AM 5/09/2021D | G retum residence class (BB) (subcl X I @ WorkChoices Casepdf X I + G (D File I C:/Users/Rayan/OneDrive/Desktop/Constitutiona|%20Law/Mid-Sem%20Assessment/WorkChoices%20Case... Contents I 90 01'410 q n X + C) I {B Pageview I A' 183 25/52 ,0 Type here to search 192 193 80. Whether that implication was to be drawn depended greatly upon how the constitutional structure was viewed If, as the founding members of the Court (Grifth CJ, Barton and O'Connor JJ) saw it, the Constitution created a federation of separate, coordinate, governments, each substantially independent of the other, supreme in its own sphere but each of which had yielded some of their powers to a central govemment, the implication of a reciprocal doctrine of noninterference could be described\" as a necessary implication But if the inquiry begins from a different starting point 7 the constitutional text, rather than a View of the place of the States that is formed independently of that text 7 a different conclusion is reached. There is then no necessity to imply a reciprocal doctrine of non-interference So, too, the doctrine of reserved powers depended upon drawing negative implications from the positive grants of legislative power to the federal Parliament, and sought to draw support for that approach from s 107 of the Constitution. As Dixon J pointed out in Melbourne Corporation v The Commonwealth\ + G) E I [B Pageview 81. aer the First World War) and a cause of future developments. As Windeyer J went on to say\": "That is not surprising for the Constitution is not an ordinary statute: it is a fundamental law. In any country where the spirit of the common law holds sway the enunciation by courts of constitutional principles based on the interpretation of a written constitution may vary and. develop in response to changing circumstances. This does not mean that courts have transgressed lawful boundaries: or that they may do so." What was discarded in the Engineers' Case was an approach to constitutional construction that started in a view of the place to be accorded to the States formed independently of the text of the Constitution. The Engineers' Case did not establish that no implications are to be drawn from the Constitution. So much is evident ti'om Melbourne Cameraman\" and from R v Kirby; Experts Boilennakers' Society of Australia ("the Boilermakers' Cary)\". Nor did the Engineers' Case establish that no regard may be had to the general nature and structure of the constitutional framework which the Constitution erects. As was held in Melbourne Corporation\": "The foundation of the Constitution is the conception of a central government and a number of State governments separately organized. The Constitution predicates their continued existence as independent entities." And because the entities, whose continued existence is predicated by the Constitution, are politics, they are to continue as separate bodies politic each having legislative, executive and judicial functions. But this last observation does not identify the content of any of those mcticns. It does not say what those legislative functions are to be. ,0 Type here to search G return residence class (BB) (subcl x PDE WorkChoices Case.pdf X + X -> C File | C:/Users/Rayan/OneDrive/Desktop/Constitutional%20Law/Mid-Sem%20Assessment/WorkChoices%20Case... Not syncing Contents 92 of 410 Q + 2 Page view IA 183 25/52 X 2 Erase 82. 195 In the present matters, the appeals made to notions of federal balance, no matter whether the appeal was explicit or only implicit, were propositions about a "balance" of legislative power between the Commonwealth and the States. Two points must be made about those propositions. First, as Dixon J said252 in Melbourne Corporation: "The position of the federal government is necessarily stronger than that of the States. The Commonwealth is a government to which enumerated powers have been affirmatively granted. The grant carries all that is proper for its full effectuation. Then supremacy is given to the legislative powers of the Commonwealth." Secondly, again as Dixon J pointed out in Melbourne Corporation, the framers 'appear ... to have conceived the States as bodies politic whose existence and nature are independent of the powers allocated to them" (emphasis added). Thus when it is said that there is a point at which the legislative powers of the federal Parliament and the legislative powers of the States are to be divided lest the federal balance be disturbed, how is that point to be identified? It cannot be identified from any of the considerations mentioned thus far in these reasons, and no other basis for its identification was advanced in argument. 196 Whether a basis for choosing a point of balance is identified or not, the fundamental question which lies behind the plaintiffs' submissions is: what exactly is the content of the proposition that a particular construction of s 51(xx) would, or would not, impermissibly alter the federal balance? It is a proposition that stops well short of asserting that the favoured construction must be adopted lest the States could no longer operate as separate governments exercising independent functions. Instead it is advanced by proposing particular limitations to the connection which must be established to demonstrate that a law is a law with respect to constitutional corporations and is advanced in that form on the basis that the result is said to be evidently desirable, even necessary. It may be suggested that the proposition should be criticised as being more a political proposition than a legal proposition. But "[the Constitution is a political instrument. It deals with government and governmental powers." To state that the proposition is political rather than legal may, therefore, have a specious 252 (1947) 74 CLR 31 at 82-83. Type here to search O goc ~ 0 0 0(64 ) ENG 9:20 AM 5/09/2021