Question 1

Read paragraphs 526-553 of the copy of the WorkChoices Case (2006) which I have attached images of below. These paragraphs are extracts from the dissenting judgment of Justice Kirby in the case. Answer the question below. In his dissenting judgment, Justice Kirby strongly disagrees with the majority opinion. In the extract you have been asked to read, he explains his reasoning on issues that he calls 'testing propositions by outcomes' (para 541) and 'the federal issue' (para 545).

oWhat reasons does Kirby J give for taking a different view to the majority in relation to constitutional interpretation on these questions?

oWhat does Kirby J consider will be the outcome for Australia's federal structure of upholding the validity of the WorkChoices legislation?

6 9 G (D File I C:/Users/Rayan/OneDrive/Desktop/Constitutional%20Law/Mid-Sem%20Assessment/WorkChoices%20Case.pdf - {3 {'5 :5 Contents of410 - + G) E I [B Pageview I - Testing propositions by outcomes: It is not appropriate, as the joint reasons suggest, to postpone all such questions to future cases. It is always valid to test a legal proposition by reference to the consequences that would ow from its acceptance. Such an approach applies as much in constitutional adjudication as to decision-making on anything else. It would not normally be assumed that such a potentially radical shift of governmental responsibilities from the States to the Commonwealth could be achieved by the expedient of utilising a federal head of power (s 51(xx)) which successive Federal Parliaments and governments have overlooked or misread these past hundred years. In the design of the Constituom such a major shift would normally require the concurrence of Australian electors in accordance with s 128 of the Constitution as successive governments have accepted or assumed. ,0 Type here to search U: I D MicrosoftWordeLAWZCSLMide x '.=_ Contents I 220 @ WorkChoices Casepdf X + G (D File I C:/U5ers/Rayan/OneDrive/Desktop/Constitutiona|%20Law/Mid-Sem%20A55essment/WorkChoices%20Case.pdf ot410 q + C) I {B Pageview I A' 541 4/4 ,0 Type here to search 542 543 544 545 Therefore, when such a radical proposition, of such substantial constitutional potential, is advanced before this Court, this Court should test its correctness by its possible consequences. In my View, the use of s 51(xx) exhibited in the Amending Act carries with it, if valid, a very large risk of destabilising the federal character of the Australian Constitution. When such a conclusion is reached, only a formulaic approach to the law of the Constitution would lead this Court to ignore itm. In effect, the risk to which I refer is presented by a shi in constitutional realities from the present mixed federal arrangements to a kind of optional or "opportunistic" federalism in which the Federal Parliament may enact laws in almost every sphere of what has hitherto been a State eld of lawmaking by the simple expedient (as in this case) of enacting a law on the chosen subject matter whilst applying it to corporations, their officers, agents, representatives, employees, consumers, contractors, providers and others having some postulated connection with the corporation. The present majority of this Court may uphold such a radical shift in the constitutional arrangements of the nation. But it should at least do so with eyes open to the results of its reasoning. Even those, like myself, who accept the need to which Windeyer I referred in the Payroll Tax Case6 a for gradual accretions of some legislative powers to the Commonwealth to reect "developments that had occmred outside the law courts"\"9, must baulk at the dysfunctional potential .X M i: AVXQEraseIQ.P/I*A the Commonwealth's central proposition in these proceedings. It is that potenti OneDrive that demands from this Court, which is the guardian of the Constitution\"), response protective of the text and structure of the document. If this Court do not full its protective role under the Constitution, what other government institution will do so? What other institution has the power and the will to do S( Confim'ng the federal issue: The larger issues involved in delimiting the 0 ii :1 a a '3 E e s ['17-'13 Agmmw 5/09/2021 %) Screenshot saved The screenshot was added to your OneDrive. 4137 PM Microsoft Word - LAW2CSL Mid- 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 220 of 410 Q + Page view A 541 4/4 A V X 2 Erase A institution will do so? What other institution has the power and the will to do so? 545 Confining the federal issue: The larger issues involved in delimiting the scope of the corporations power (and in identifying the full range of laws that could be characterised as laws "with respect to" constitutional corporations) can indeed be postponed to future cases that will now surely follow the outcome of 617 Fontana (1982) 150 CLR 169 at 181-182; Austin v The Commonwealth (2003) 215 CLR 185; Bayside City Council v Telstra Corporation Lid (2004) 216 CLR 595; Craven, "Industrial Relations, the Constitution and Federalism: Facing the Avalanche", (2006) 29 University of New South Wales Law Journal 203 at 213. 618 (1971) 122 CLR 353 at 396-397. 619 (1971) 122 CLR 353 at 396. 620 Victoria v The Commonwealth and Connor (1975) 134 CLR 81 at 118 per Barwick CJ. OneDrive X Screenshot saved The screenshot was added to your OneDrive. Kirby Type here to search W 120 C ~ 0 0 0 (7 41) ENG 4:37 PM 5/09/2021Microsoft Word - LAW2CSL Mid- 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 221 of 410 Q + 2 Page view |A 541 4/4 V X 2 Erase A 620 Victoria v The Commonwealth and Connor (1975) 134 CLR 81 at 118 per Barwick CJ. Kirby 211. these proceedings. Where, as here, the entire scheme of the law in question, including the "rights, duties, powers and privileges which it changes, regulates or abolishes", requires it to be characterised in such a way that it corresponds to s 51 (xxxv), rather than s 51(xx), the precise ambit of the corporations power need not be determined. As explained, the Act is concerned with the relations betwe employers and employees, a fact which confirms its general character as a la D OneDrive X with respect to the prevention and settlement of "industrial disputes" and tl associated regulation of "industrial" or "workplace" relations. Screenshot saved The screenshot was added to your 546 In the present proceedings it is sufficient to say that the content of tl OneDrive. power afforded to the Federal Parliament under s 51(xx), with respect to tl cornorations defined in that naranranh does not avtend to a nower to make laure Type here to search W 120 C ~ 90 0 0 ( 7 41) ENG 4:37 PM 5/09/20216 9 G (D File I C:/Users/Rayan/OneDrive/Desktop/Censtitutional%20Law/Mid-Sem%20Assessment/WorkChoices%20Case.pdf - {3 {'5 + G) E I [B Pageview 620 Victoriav The Commonwealth and Connor (1975) 134 CLR 81 at 118 per Barwick C]. 211. these proceedings. Where, as here, the entire scheme of the law in question, including the "rights, duties, powers and privileges which it changes, regulates or abolishes'mn, requires it to be characterised in such a way that it corresponds to s 51(xxxv), rather than S 51001), the precise ambit of the corporations power need not be determined. As explained, the Act is concerned with the relations between employers and employees, a fact which conrms its general character as a law with respect to the prevention and settlement of "industrial dispu " and the associated regulation of \"industrial" or "workplace" relations, h: the present proceedings it is sufcient to say that the content of the power afforded to the Federal Parliament under s 51(xx), with respect to the ,0 Type here to search ELodgement Page 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 214 of 410 Q + 2 | Page view A 5261 5/8 V X 2 Erase A would be considered and given due weight in a just and transparent process, decided in a public procedure that could be subjected to appeal and review, reasoned criticism and continuous evolution. 526 The different character of s 51(xx): Laws made solely by reference to the characteristics inherent in a constitutional corporation are not, of their nature, equally subject to the "safeguard, restriction or qualification" of a commitment to industrial fairness and reasonableness . If the Commonwealth's submissions are correct, there is therefore no equal "guarantee" either inherent in the power provided by s 51(xx) or necessary to the operation upon the boundaries of that power of the more specific provisions contained in s 51(xxxv). 527 Professor Ronald Mccallum has argued that "laws based upon the corporations power [alone] will be centred around corporations to the detriment 603 See, eg, Metal Trades Award (re Work Value Inquiry) (1967) 121 CAR 587; Vehicle Industry Award (1968) 124 CAR 293 at 308. 604 Waterside Workers Federation v Commonwealth Steamship Owners Association (1915) 9 CAR 293 at 302-303; Amalgamated Society of Engineers v Broken Hill Proprietary Co Lid (1920) 14 CAR 22. 605 Mccallum, "The Australian Constitution and the Shaping of our Federal and State Labour Laws", (2005) 10 Deakin Law Review 460 at 469. Type here to search O C W 10 C ~ 0 0 0(641) ENG 7:03 PM 5/09/2021ELodgement Page X PDE WorkChoices Case.pdf X + X C @ File | C:/Users/Rayan/OneDrive/Desktop/Constitutional%20Law/Mid-Sem%20Assessment/WorkChoices%20Case... a Not syncing Contents 215 of 410 Q + 2 Page view | A 526 5/8 AV X Erase A Kirby 205. of flesh and blood persons who interact with corporations". In the context of considering the outcome of these proceedings, if the Commonwealth's submissions were to prevail, he observed7: "[Gjeneral labour laws of broad application which would be required to found a national labour regime, which were enacted in reliance upon the corporations power could not for long maintain [the] balance between employers and employees. In the fullness of time, these labour laws will become little more than a sub-set of corporations law because inevitably they will fasten upon the economic needs of corporations and their employees will be viewed as but one aspect of the productive process in our globalized economy." 528 If the Commonwealth's submissions are correct, and the relevantly uncontrolled federal law-making power exists in s 51(xx) of the Constitution, any such consequences must be left to the future. However, in deciding how the federal legislative powers, specifically s 51(xx) and (xxxv), operate in relation to each other, it is relevant for this Court to be aware of the constitutional values that are at stake in this decision. Those values, inherent in s 51(xxxv), have pervaded the outcomes of industrial disputes in Australia for more than a century. They have done so in respect of the majority of employees who, since 1901, have become subject to awards and agreements under federal law. 529 This Court has contributed to, and generally upheld, the industrial fairness guarantee by its decisions on the ambit of the federal power with respect to industrial disputes. Its contribution grew out of the understandings expressed by the participants at the Constitutional Conventions, the language of the constitutional text and the long-held and often expressed assumption that the only way federal laws on industrial relations could be enacted was if they conformed to the dual requirements of interstateness and independent resolution by conciliation and arbitration. offont 1... this Type here to search O 10 0 C ~ 0 0 0 (741 ) ENG 7:04 PM 5/09/2021 + G) E I [B Pageview concrLlation and arbitration. In my View, the long-held and shared assumptions, given effect by this Court, involved a correct view of the grant of legislative power in this respect to the Federal Parliament. The applicable grant of power imported a safeguard, restriction or qualication protective of all those involved in collective industrial 606 McCallum, "The Australian Constitution and the Shaping of our Federal and State Labour Laws\ELodgement Page X PDE WorkChoices Case.pdf X + X C @ File | C:/Users/Rayan/OneDrive/Desktop/Constitutional%20Law/Mid-Sem%20Assessment/WorkChoices%20Case... Not syncing Contents 216 of 410 Q + 2 Page view 526 5/8 v X _ Erase Kirby 206. bargaining: employer and worker alike. It provided an ultimate constitutional guarantee of fairness and reasonableness in the operation of any federal law with respect to industrial disputes, including for the economically weak and vulnerable. It afforded machinery that was specific to the concerns of the parties, relatively decentralised in operation and focused on the public interest in a way that laws with respect to constitutional corporations made in the Federal Parliament need not be. These values profoundly influenced the nature and aspirations of Australian society, deriving as they did from a deep-seated constitutional prescription. They should not be swept aside lightly by this Court. Doing so would renounce an important part of the nation's institutional history and the egalitarian and idealistic values that such history has reinforced in the field of industrial disputes and employment standards because of the constitutional prescription. 531 Conclusion: statutory invalidity: Subject to what follows, I therefore consider that this Court should adhere to the conclusion inherent in the hundreds of earlier cases over more than a century in which the Court has held or implied that, whatever the expanding content of the corporations power in s 51(xx) might otherwise permit, it does not sustain a law which, properly characterised, is one "with respect to" the subject matter of s 51(xxxv), that is, the prevention and settlement of interstate industrial disputes. This new Act is such a law. It does not comply comprehensively with the dual requirements laid down in s 51(xxxv) for laws with respect to that subject. That conclusion presents the issue of its constitutional invalidity. The relevance of the Constitution's federal character 532 The federal structure: An additional consideration supporting the foregoing approach should be mentioned. I refer to the federal structure and character of the Constitution and the support that this consideration provides to "subtracting" from the powers of the Federal Parliament to make a law with respect to corporations what is in truth a claim to an entitlement, under that guise, to enact a comprehensive law with respect to the prevention and settlement of industrial disputes but without observing the restrictions proper to that constitutional subject matter. 608 See also reasons of Callinan J at [834]. Type here to search O O W 10 ( ~ D 0 0( 4 ) ENG 7:04 PM 5/09/2021ELodgement Page X PDE WorkChoices Case.pdf X + X C @ File | C:/Users/Rayan/OneDrive/Desktop/Constitutional%20Law/Mid-Sem%20Assessment/WorkChoices%20Case. Not syncing Contents 217 of 410 Q + 2 Page view | A 526 5/8 v X _ Erase Kirby 207. 533 The majority's reasons in these proceedings potentially cut a swathe through a very important feature of the constitutional design, expressed in s 51(xxxv), protective of diversity in the legal regulation of matters broadly answering to the description of industrial relations. 534 From before the commencement of the Constitution and during the first century of its operation, federal regulation of industrial relations in Australia co-existed with various forms of State (and later Territory) laws. The resulting diversity of legal regulation has permitted a legal and administrative symbiosis. It has resulted in occasional diversity of approach, inventiveness in standards and entitlements and appropriate innovation. Such innovation, by which industrial standards determined in one jurisdiction of Australia are tested and sometimes copied in another, constitutes a good illustration of an important advantage of the federal form of government enshrined in the Constitution. 535 When it comes to defending the rights of property owners from the purported deployment of other federal powers which would deprive them of the protections in s 51(xxxi) of the Constitution, this Court has been rightly protective610. Within the Constitution, it has been vigilant, even sometimes vigorous, in upholding the entitlement of State lawmakers to experiment and innovate . Unfortunately, in recent times, this Court's willingness to do so has been missing in the field of laws on industrial disputes. When it comes to defending employees from analogous legislative incursions into the protections provided to their rights by s 51(xxxv), the Court's vigilance wanes noticeably, as it has in this case. Both capital and labour deserve the even-handed protection that the Constitution provides in the language respectively of s 51(xxxi) and (xxxv). There should be no double standards in constitutional protection. Yet, once again, it is revealed that double standards exist. 536 Avoiding offence to the Engineers Case: The joint reasons hint that the concerns of the States, expressed in these proceedings, about the federal OneDrive X 610 Schmidt (1961) 105 CLR 361 at 371-373; Re Director of Public Prosecutions; Ex parte Lawler (1994) 179 CLR 270 at 283. Screenshot saved 611 See, eg, Fardon v Attorney-General (Old) (2004) 78 ALJR 1519; 210 ALR 50; The screenshot was added to your Baker v The Queen (2004) 78 ALJR 1483; 210 ALR 1; Forge v Australian Securities and Investments Commission (2006) 229 ALR 223. OneDrive. 612 See, eg, Fish v Solution 6 Holdings Lid (2006) 80 ALJR 959; 227 ALR 241; Batterham v OSR Lid (2006) 80 ALJR 995; 227 ALR 212; Old UGC Inc v Type here to search O w 10 C ~ D 0 0 ( 41) ENG 7:04 PM 5/09/2021ELodgement Page X PDE WorkChoices Case.pdf X + X C @ File | C:/Users/Rayan/OneDrive/Desktop/Constitutional%20Law/Mid-Sem%20Assessment/WorkChoices%20Case.. Not syncing Contents 218 of 410 Q + Page view I A 526 5/8 v X _ Erase Kirby 208. implications of the Commonwealth's submissions as to the ambit of s 51(xx), amount to an illicit attempt to undermine the doctrine of this Court as stated in the Engineers Cases. It is true that that decision has been criticised in recent years as inflicting a "debilitating blow to federalism". But none of the plaintiffs, whether States or unions, challenged the general approach stated in the Engineers Case. None of them asserted reserved powers for the States or an implied immunity of new pockets of State law from federal legislative incursion. 537 Ambit of s 51(xx) and the States: Nevertheless, the plaintiffs did draw to notice the extremely large potential of the Commonwealth's submissions, if accepted, to exclude State law from operation in areas that for more than a century they have occupied in a hitherto creative interaction with federal laws. If, by the use of definition provisions, as in the Amending Act, comprehensive federal legislation that is really a law with respect to another subject matter (such as the prevention and settlement of industrial disputes and how they are to be resolved) may be dressed in the raiments of legislation with respect to constitutional corporations, a very significant risk is presented to the overall balance envisaged by the constitutional distribution of powers. That risk, in the field of resolving industrial disputes, is the almost total exclusion of State law from a significance it has enjoyed from the birth of the Commonwealth. 538 Indeed, such exclusion is the announced intention of the Amending Act whose ambit, if valid, is proclaimed to extend immediately to an asserted 85% of Australian employees" . Moreover, if the Amending Act is valid, it affords non-corporate employers, at their option, an entitlement (by the relatively simple and inexpensive procedure of incorporation) unilaterally to alter the industrial disputes regime applying to themselves and all of their employees. OneDrive X 613 Joint reasons at [82]. 614 Meale, "The History of the Federal Idea in Australian Constitutional Jurisprudence: Screenshot saved A Reappraisal", (1992) 8 Australian Journal of Law and Society 25 at 55. See also Gibbs, "Australia Day Messages, 2001-2005", in Samuel Griffith Society, The screenshot was added to your Upholding the Australian Constitution, vol 17 (2005) 363 at 366, 386-387. OneDrive. 615 Munro, "Changes to the Australian Industrial Relations System: Reforms or Shattered Icons? An Insider's Assessment of the Probable Impact on Employers, Type here to search O 10 C ~ 0 0 0(741) ENG 7:04 PM 5/09/2021ELodgement Page X PDE WorkChoices Case.pdf X + X C @ File | C:/Users/Rayan/OneDrive/Desktop/Constitutional%20Law/Mid-Sem%20Assessment/WorkChoices%20Case... Not syncing Contents 219 of 410 Q + Page view A 526 5/8 v X _ Erase 539 The States, correctly in my view, pointed to the potential of the Commonwealth's argument, if upheld, radically to reduce the application of State laws in many fields that, for more than a century, have been the subject of the States' principal governmental activities. Such fields include education, where universities, tertiary colleges and a lately expanding cohort of private schools and colleges are already, or may easily become, incorporated. Likewise, in healthcare, where hospitals (public and private), clinics, hospices, pathology providers and medical practices are, or may readily become, incorporated. Similarly, with the privatisation and out-sourcing of activities formerly conducted by State governments, departments or statutory authorities, through corporatised bodies now providing services in town planning, security and protective activities, local transport, energy, environmental protection, aged and disability services, land and water conservation, agricultural activities, corrective services, gaming and racing, sport and recreation services, fisheries and many Aboriginal activities. All of the foregoing fields of regulation might potentially be changed, in whole or in part, from their traditional place as subjects of State law and regulation, to federal legal regulation, through the propounded ambit of the corporations power. 540 Upon the Commonwealth's theory of's 51(xx) of the Constitution, evident in the Amending Act in issue in these proceedings, such a shift of lawmaking in Australia could be achieved by the simple enactment by the Federal Parliament of a law dealing with any of the foregoing subjects but applied to corporations performing functions relevant in some way to such fields. The Amending Act provides the new federal template. This Court cannot complain that it was not warned by the States of the constitutional implications of these proceedings for a major shift in the balance of governmental power in Australia. Not all the foregoing fields of legislation are subject to a countervailing "safeguard, guarantee or qualification" appearing expressly in another head of constitutional power as a brake on such constitutional destabilisation. But where such a brake exists, there is good constitutional reason for engaging it. 541 Testing propositions by outcomes: It is not appropriate, as the joint reasons suggest, to postpone all such questions to future cases. It is always valid to test a legal proposition by reference to the consequences that would flow from its acceptance. Such an approach applies as much in constitutional adjudication as to decision-making on anything else. It would not normally be assumed that such a potentially radical shift of governmental responsibilities from the States to the Commonwealth could be achieved by the expedient of utilising a federal head of power (s 51(xx)) which successive Federal Parliaments and governments have overlooked or misread these past hundred years. In the design of the Constitution, such a major shift would normally require the concurrence of Australian electors in accordance with s 128 of the Constitution - as successive governments have accepted or assumed. Type here to search O w 10 ( ~ D 0 0 ( 41 ) ENG 7:04 PM 5/09/2021ELodgement Page X PDE WorkChoices Case.pdf X + X C @ File | C:/Users/Rayan/OneDrive/Desktop/Constitutional%20Law/Mid-Sem%20Assessment/WorkChoices%20Case... Not syncing Contents 220 of 410 Q + Page view | A 526 5/8 v X _ Erase Kirby 210. 542 Therefore, when such a radical proposition, of such substantial constitutional potential, is advanced before this Court, this Court should test its correctness by its possible consequences. In my view, the use of s 51(xx) exhibited in the Amending Act carries with it, if valid, a very large risk of destabilising the federal character of the Australian Constitution. When such a conclusion is reached, only a formulaic approach to the law of the Constitution would lead this Court to ignore it". 543 In effect, the risk to which I refer is presented by a shift in constitutional realities from the present mixed federal arrangements to a kind of optional or 'opportunistic" federalism in which the Federal Parliament may enact laws in almost every sphere of what has hitherto been a State field of lawmaking by the simple expedient (as in this case) of enacting a law on the chosen subject matter whilst applying it to corporations, their officers, agents, representatives, employees, consumers, contractors, providers and others having some postulated connection with the corporation. 544 The present majority of this Court may uphold such a radical shift in the constitutional arrangements of the nation. But it should at least do so with eyes open to the results of its reasoning. Even those, like myself, who accept the need to which Windeyer J referred in the Payroll Tax Case" for gradual accretions of some legislative powers to the Commonwealth to reflect "developments that had occurred outside the law courts", must baulk at the dysfunctional potential of the Commonwealth's central proposition in these proceedings. It is that potential that demands from this Court, which is the guardian of the Constitution", a response protective of the text and structure of the document. If this Court does not fulfil its protective role under the Constitution, what other governmental institution will do so? What other institution has the power and the will to do so? 545 Confining the federal issue: The larger issues involved in delimiting the scope of the corporations power (and in identifying the full range of laws that could be characterised as laws "with respect to" constitutional corporations) can indeed be postponed to future cases that will now surely follow the outcome of 617 Fontana (1982) 150 CLR 169 at 181 182; Austin v The Commonwealth (2003) 215 CLR 185; Bayside City Council v Telstra Corporation Lid (2004) 216 CLR 595; Craven, "Industrial Relations, the Constitution and Federalism: Facing the Avalanche", (2006) 29 University of New South Wales Law Journal 203 at 213. 618 (1971) 122 CLR 353 at 396-397. 619 (1971) 122 CLR 353 at 396. Type here to search O w 10 ( ~ 0 0 0 (64 ) ENG 7:05 PM 5/09/2021