Constitutional assignment question
Under s 71 of the Australian Constitution, the conferring of the the judicial power of the Commonwealth of Australia invested in the High Court was originally intended by the drafters of the Constitution to ensure that the powers of the Commonwealth were checked and limited, and to ensure that the needs and rights of the states were protected. However, it is through examining the judicial heads of power of the Commonwealth under s71 that some legal practitioners and theorists such as blah believe that the original drafters wouldn’t believe ‘States would become the enfeebled, emasculated creatures they have become.’ or ‘would have guessed or predicted that virtually all of the important division of powers cases would eventually go the Commonwealth’s way’ today. This essay will endeavour to examine the heads of power under section 51 of the Australian Constitution with regard specifically to the Corporations and External affairs powers, to find an answer that the interpretation of the Constitution by the High Court of Australia has indeed tipped the federal balance of power in favour of the Commonwealth.
How far do these powers tip the Federal Balance?
Before the heads of power can be discussed in detail it is pertinent to note that although the high court decisions are a major factor in tipping the federal balance of power to the commonwealth, these high court decisions are not the only factor which tip this balance of federal power away from the states and toward the commonwealth. The high court decisions are but the factor with the greatest tangible impact, with other factors to the balance of power in the Commonwealth existing such as unchallenged legislation, referendums, and referral of powers. However these factors are relatively insignificant compared to the large substantive impact the High Court of Australia has had in tipping the federal balance of power in favour of the Commonwealth, which will be evident when examining the development of the Corporations and External affairs powers.
The corporations Power
While today the Corporations power is viewed as a plenary power, the original stance of the High court was to define a narrow construction of the power, and it is evidenced in the case of Huddart Parker & Co v Moorehead that the original intention of the courts powers to ensure that the powers of the Commonwealth were checked and limited, and to ensure that the needs and rights of the states were protected was upheld. The court held in the case that a narrow construction of the power was appropriate, taking a stance reflecting the reserved state powers doctrine, although no agreement on a suitable interpretation was found. This position of a narrow construction of the legislation by the high court lasted for almost sixty years. It is the prerogative of the law to exist in a state of flux, not stasis however.
This power vested in the commonwealth in regards to industrial relations legislation was eventually further increased to a much wider scope in the case of Strickland v Rocla Concrete Pipes Ltd 1971. In the case the High Court adopted a significantly broader view interpreting the constitution, and effectively overturned the ruling in Huddart Parker as they deemed the doctrine of reserve powers no longer applied. The interpretation of the Constitution by the High Court of Australia in this circumstance tipped the federal balance of power in favour of the Commonwealth to such a degree that it effectively gave the federal government almost free reign under section xx of the constitution to legislate for all corporations activities on the basis that these incorporated transactions dealing with the public, resulting in the passing of the trade practices act in 1974.
Although the case of Strickland v Rocla Concrete Pipes Ltd effectively illustrates just how the interpretation of the Constitution by the High Court of Australia can tip the federal balance of power in favour of the Commonwealth, the most prominent example of just how much this is exemplified in light of the interpretation of the Corporations power is shown in the work choices case. The cased showed the Federal government of the time attempting to replace the existing system of centralised industrial arbitration with a national scheme of individualised workplace agreements outlined in the Workplace Relations Amendment Act 2005 (Cth) . As this act consolidates in effectively stripping the powers of the state governments concerning workplace relations, and the substantive aspects of the act undermined the interests of the labor party, the act was subsequently challenged by the five state Labor governments of the time. This challenge culminated in the landmark high court decision of NSW v Commonwealth 2006 which resulted in the high court upholding the legislation, overriding any legislation made by the states prior to the decision and effectively granting the federal government the authority to legislate in the industrial relations of the Australian states.This decision not only reinforced that the interpretation of the Constitution by the High Court of Australia has tipped the federal balance of power in favour of the Commonwealth, but it set a trend for what some scholars have taken as spelling an end of Australian federalism altogether.
The External Affairs Power.
In regard to the power of external affairs as vested under s 51 xxix of the Australian constitution, the interpretation of the constitution and subsequent decisions rendered by the High Court have again proven just how significant they can be in tipping the federal balance of power in the favour of the commonwealth. Following the unprecedented boom of air travel, the case of R v Burgess posed the question of whether the external affairs power is able to be relied upon on a matter which involved the implementation of a treaty, even though the context of the decision was inherently domestic of nature. The high court held that parliament is within their power to legislate to implement treaties regarding any matter regardless of its relation to s51. The court did provide limits to this however, the treaties implement having to be bona fide, and the legislation and process of implementation having to comply with the limits and guarantees of the constitution. Although the Court in this case still ruled against the commonwealth in the case, the broad the interpretation of ‘external affairs’ to incorporate air regulations set a High Court precedent which paved the way for broad and activist definitions of external affairs tipping the federal balance of power in favour of the Commonwealth.
It was in the case of Koowarta v Bjelke-Peterson 1982 however where the current interpretation and definition of the External affairs power by the high court was laid. In the case the High Court found the Queensland government to be in breach of the Racial discrimination act 1975, holding that under s 109 of the act that Queensland could not impede the Koowarta peoples from leasing land. The upholding of the act exemplifies again because of just how broadly the high court chose to interpret the external affairs power, in that any Commonwealth ratified international treaty under s 51 xxix of the Constitution was legally binding upon the states, and setting a precedent which may be seen the High Court of Australia has tipped the federal balance of power in favour of the Commonwealth.
This broad stance was upheld and taken to another level in the landmark case of Commonwealth v Tasmania 1983 the ‘tasmanian dams’ case. The Hawke Federal Government by ratifying the passing of the World Heritage Properties Conservation Act 1983 attempted to holt the construction of a dam by the liberal Tasmanian government in a UNESCO World heritage area by use of the High Court’s definition of the breadth of the External Affairs power. The extent that this was viewed as an encroachment of the state’s power is shown in the sheer amount of resistance the Federal legislation met. The legislation was openly challenged by the state governments of Queensland, New South Wales, Victoria, and Tasmania based upon the grounds that the constitution did not authorise this level of federal intervention in state affairs. However, the power that the high court have in tipping the federal balance of power in favour of the Commonwealth was exemplified once again in upholding the legislation both on the grounds of its interpretation of the corporations and external affairs powers. as someone states ‘the decision was widely regarded by conservative commentators as a major setback for Australian federalism and a failure by the High Court to maintain a proper balance between the Commonwealth and the States.’ and someone agrees,: ‘This broad definition laid the foundation for the encroachment of State powers by the Commonwealth – all that the C’th needs to do to override the States is sign an international treaty.
The contextual difference between the powers
Both the implementation of the Corporation and External Affairs powers do indeed exemplify just how the interpretation of the Constitution by the High Court of Australia has tipped the federal balance of power in favour of the Commonwealth. It should be noted though that in regard of the context of expanding the commonwealth’s power it is reasonable that in regards to the External Affairs power that this interpretation is due to the delicate nature and over encompassing gravity that external affairs have on the nation.
The role of the counterbalances
Even with all the evidence via examining the previous high court decisions and subsequent criticisms received about how the interpretation of the Constitution by the High Court of Australia has tipped the federal balance of power in favour of the Commonwealth, there is still a valid argument that the overall extent to which this is deemed true by critics is greatly exaggerated when observed within the whole picture of the federal system. This argument of critical exaggeration remains because the respective ‘power’ granted on the commonwealth by the high court does still strictly remain tied the the heads of power conferred under section 51. someone Sydney law review argues that because of this, even though it has been the history of the high court to interpret the constitutional federal powers to such a wide encompassing degree, the commonwealth must still exercise a sufficient connection between that of the legislation pushed and the head of power to which it falls. he goes on to further elaborate that this exaggeration remains because there are a number of significant institutional and political obstacles faced by the commonwealth to exercise its powers to the fullest extent. Statutes must still be passed through the house of representatives and the senate before they are approved, and federal governments face potential backlashes from the electoral population if they push their own agendas too far. Finally although the cases discussed previously illustrate a waning of state power through the decisions and constitutional interpretation of the high court, the independence of the states as constituents of the federation remains a constitutional security. As such the Commonwealth will remain under the pressure, opposition, and scrutiny of the states if their powers are undermined or infringed upon. In effect, while the interpretation of the Constitution by the High Court of Australia may be viewed as having tipped the federal balance of power in favour of the Commonwealth, it is within these institutional and political obstacles which prevent and protect the interests of Australia from against this potential imbalance.