Tuesday, November 14, 2006

One solitary judicial conservative

This is one of the most important cases with respect to the relationship between the Commonwealth and the States to come before the Court in all of the years of its existence. If the legislation is to be upheld the consequences for the future integrity of the federation as a federation, and the existence and powers of the States will be far-reaching. The Act in its present form is well beyond, and in contradiction of what was intended and expressed in the Constitution by the founders.

Kirby in full flight? No, these are some of the opening words in the judgement of Callinan J, political and jurisprudential conservative, and on first blush the only Justice of the High Court capable of sticking strongly to his judicial approach when it contravenes his (alleged) political leanings.

The conservatives' Mabo has been handed down.

Kirby is the only jurisprudential radical on the bench. It is his judgement, and his alone, that should have drawn the long bow from the short clear expression of power,

The Parliament shall, subject to this Constitution, have power to make laws for the peace, order, and good government of the Commonwealth with respect to...

(xx) foreign corporations, and trading or financial corporations formed within the limits of the Commonwealth;

so that it confers the ability to regulate industrial and employment law at all levels, despite the fact that the founding hobnobs chose to make only the following clear reference to industrial law,

(xxxv) conciliation and arbitration for the prevention and settlement of industrial disputes extending beyond the limits of any one State;

within that fine piece of British legislation.

Instead, and once again I stress that this is at first blush (I have all 200-odd pages in front of me but will not have read it until at least midnight!), Kirby supported the black letter conservative position (judicially speaking) that matched his more radical politics.

And the much-lauded judicial conservatives, with the exception of Callinan J (only HE gets the 'J' today), brought down a decision that is radical in its reasoning, centralising power, supporting the grasping expansion of the Commonwealth over the States, neutering the Federation and performing astonishing acts of hermeneutics on a group of words that clearly contain, by intention, no reference whatsoever to industrial or employment law.

It's early days. I'll read the decision. I'll wait with bated breath for Janet Albrechtson to scribble furiously about the decline of the judiciary and the need for a return to genuine judicial conservatism.

Only one judge has the right to adopt that mantle now.

(More analysis to follow on this topic in coming days...)


Legal Eagle said...

Interesting, isn't it? I respect Callinan J for remaining true to his principles. More than I ever did previously. It's all about moral consistency.

David J said...

I was at a seminar that Humphrey McQueen gave at the Brisbane Social Forum last year.

He talked about how to understand decisions of the High Court, in the context of the common assumption that to centralise is Left or radical, and to decentralise is Right or conservative.

He pointed out that sometimes that is not true. Sometimes it is in the interests of the ruling class to centralise, and sometimes not.

In this case, the ruling class wants to centralise, because that will make it easier to cut wages, so the judges have gone along, apart from the recalcitrant Callinan.

I suppose that is why there are 7 judges and not one on the High Court. Helps to isolate those who take theory more seriously than class interests.

Boysenberry said...

Of interest is that the government have effectively covered the vast majority of Australian workers with the IR reforms now. On first look, this decision covers only those employed by a company incorporated within Australia, leaving out those working for other company structures, as well as employees of the states. However, the majority of former have already had their protection removed. How soon for the latter?

Of course, this is all a layman's point of view.

David Jeffery said...

It's interesting, but not that surprising. You saw similar things in federalism cases in the 1980s - the section 90 cases for example where Murphy J on the left and Dawson J on the right were the strongest dissenters and defenders of federalism.

Callinan and Kirby have had quite a number of dissents together now.

I think david j makes a good point re centralisation.

I think Howard is very much a pro-centralisation big-government sort of 'conservative'. Conservatives who aren't of that persuasion should be worried - and no doubt will be next time a federal labor government is elected with the increased powers Howard and the High Court have provided.

Anonymous said...

Now that you have had the opportunity to read and digest Kirby's decision in full do you still take the critical view of him that you took when reading at first blush?

Anonymous said...

^^ nice blog!! ^@^

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