Question 2 (10 marks) Read paragraphs 526-553 of the copy of the WorkChoices Case (2006) under the Assessment 2 information on the LMS page. 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). ? What reasons does Kirby J give for taking a different view to the majority in relation to constitutional interpretation on these questions? ? What 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