Thursday, May 04, 2006

Case of the Year

I didn’t realise it was happening already, but Day 1 of the WorkChoices challenge happened in the High Court today.

The ABC report is here, the Austlii transcript of the hearing is here.

I have to admit, I haven’t read the transcript. I will do so and report. I don’t know if Peter Beattie’s assertion, that a Constitutional Convention will be required should the states lose, is quite correct, but it is incredibly important.

Essentially, the Constitution gives the legislature power to make laws with respect to a whole range of things, corporations being one of them. The question is: is this legislation with respect to corporations? There is a whole lot of Constitutional rara that goes on about the scope of each head of power, but I really don’t think it relates solely to corporations. It is enough, however, for laws to mainly be enacted in relation to corporations. So, just because the laws apply to, say law firm, does not preclude them from being made ‘with respect to corporations’.

What I find most interesting is the interpretative perspectives being used. The conservative base in America, for example, wants the Constitution interpreted as if that interpretation were set in stone on the day it was made. Under this approach, the meaning of words is fixed. Hayne J is happy, it seems from the report, to allow for some bending of that interpretation, which is a more progressive approach. Words can change their meaning, with the result that the Constitution can also change its meaning.

In the end, though, the question I would ask is why would this legislation be unconstitutional if the old Workplace Relations Act was Constitutional. And if that Act is not Constitutional, why has nobody challenged it before?

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