Justice Michael Kirby is supposed to be the most liberal judge on the High Court of Australia. Justice Ian Callinan is, some would say, the most consistently conservative judge on the High Court of Australia. When they are the only two dissenters and are in agreement, you know that there is something wrong with the decision in question.
Australia has a federal structure of government. The Constitution of Australia sets out what are the grants of powers that are solely within the domain of the federal government, but does not explicitly spell out what powers are reserved for the States, if at all. Key High Court judgments in the past have interpreted the Constitution to say that, if the federal government chooses to legislate on a subject matter in such a way that would displace the State governments, it would be lawful as long as it is spelled out in clear and unambiguous language. (I am massively simplifying things here of course.)
The problem now is that the federal parliaments have successively, over the years, pushed at the boundaries of the scope of their power, culminating in the most recent decision, where the power to regulate corporations grants the federal government the power to legislate on anything that has a connection with corporations. (Again, massively simplifying the ratio of the judgment.)
Justice Callinan argues that this upsets the federal balance, and would render State parliaments impotent and useless. Justice Kirby asserts that previous attempts by the federal government to widen the scope of the corporations power through referendums have failed, and see no reason why the intent of the Australian people should be ignored. More importantly, throughout their judgments, Kirby J and Callinan J refer to each of their respective judgments in support and approval.
When you examine the the concurring aspects of their judgments, you will understand that there are very good reasons why such ideological opposites are driven to stand on common ground. They are both keenly aware of the dangers of centralised power, and appreciate that the framers of the Constitution never intended for the Commonwealth to possess such overarching power over the States.
*Media Articles*
High Court kills states’ IR hopes
P.P. McGuinness: Judges’ blow for socialism
*Wikipedia Summaries*
Constitution of Australia - Wikipedia, the free encyclopedia
Constitutional interpretation
Reserved State powers - Wikipedia, the free encyclopedia
Amalgamated Society of Engineers v Adelaide Steamship Co. Ltd. - Wikipedia, the free encyclopedia
The Case in Question
New South Wales v Commonwealth (Workplace Relations Challenge) - Wikipedia, the free encyclopedia
New South Wales v Commonwealth of Australia; Western Australia v Commonwealth of Australia [2006] HCA 52 (14 November 2006)
From Catallaxy.
7 Comments
Sounds like the way the US Supreme Court has interpreted the commerce clause over here.
noself:
Hello! I didn’t know you were in the US!
anyway, yes, I have to agree that the way the SCOTUS has interpreted the commerce clause is ridiculous. Only Clarence Thomas has been consistent. In the Raich case, regarding the growing of marijuana domestically for medical purposes, even a supposed conservative like Scalia had no qualms about extending the Commerce Clause to cover such cases. Justice Clarence Thomas on the other hand expressed disbelief as to how growing marijuana privately for medical purposes can fall within ‘interstate commerce’.
the problem is exacerbated here in Australia because the separation of powers is not along the same lines as in the US: we have a Westminster parliamentary system. The executive is made up of members of parliament, hence the Executive and the Legislative branches of government are practically commingled. Only the judiciary is truly separate from the other arms of government.
i’ve always believed that the further left and the further right one goes on any socio-political-economic spectrum, the more you find that the far right and the far left are similar. it’s kind of like the spectrum gradually curves in such a way so as to meet at the ends.
anyway, in relation to the case in point, before this decision, were corporations governed by different rules in different states?
from a commercial aspect, i’d find that very annoying if i were to set up business in australia. but that’s just me.
ejl:
actually no, there’s a long history to this. you can find the summary here.
http://en.wikipedia.org/wiki/Corporations_Act_2001
as to whether it is annoying or not, you might want to consider the situation in the US. Corporations law is state based in the US, so you have 51 different corporations laws in 51 different states.
Personally I would consider that a good thing, as the legislators in each state would face competitive pressure with those from other states not to make laws which are too onerous or business-unfriendly.
It’s no coincidence that most large corps in the US are registered in the State of Delaware.
Han - not all that simplified, really! Sounds pretty good to me.
What I found most interesting was that judges like Heydon and Crennan were prepared to find that because the idea of what corporations would be involved in has expanded since Federation, so the corporations power should be expanded also.
Given how conservative and originalist most of the current bench are, I was most surprised by that aspect of the decision.
Not my real name:
you know, that’s the thing. What the majority were prepared to find was precisely the thing that most conservatives like to mock Kirby about. Branding him a “judicial activist” for his opinions that the interpretation of the constitution has to change with the times, it turns out ironically that he is the true conservative in this case.
Yeah, I’m doing an exchange programme for 3 quarters over here in University of Washington - Seattle.
I thought you would be back by now actually.
Anyway that really killed whatever respect people had for Scalia as an originalist. He’s using “originalism” as a way of getting to his social conservative positions.
Clarence Thomas scares me, his position is so radical that the only person even more extreme than him is arguably Bork and Bork doesn’t “believe” in the 9th Amendment in the sense that he doesn’t think there are any unenumerate rights despite the 9th Amendment and the freaking legislative history behind it.
Ah yes, the great state of Delaware =P