In this article, we bring a fresh perspective to this debate. 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. Manning, federalism and the generality problem in constitutional interpretation, 122 harv. Pdf constitutional interpretation in a globalised world. Commonwealth 2006 229 clr 1 the court upheld a federal law on industrial relations under the corporations power. We analyze traditions use in constitutional interpretation from an economic perspective.
Internal and external aids may be used while interpreting. It is possible on one hand to read it as a revolutionary decision which has upended our conventional understanding of the scope and nature of the commonwealths power over industrial relations and which will have farreaching longterm implications for the balance of power. The court should always lean to the broader interpretation unless something in the context or the rest of the constitution indicates the narrower interpretation will best carry out its object and purpose methods of constitutional interpretation overview no single preferred approach callinan, work choices 1 originalism. When a court sets aside a statute as unconstitutional, it in essence deems. Approaches to constitutional interpretation in australia. Three fundamental and rather simple principles to follow at all times are that. Essay the modes of constitutional interpretation 37 appendix a.
This article argues that regardless of context, it is difficult, if not impossible, to interpret positive. Constitutional choices in the work choices case, or what. Constitutional courts, constitutional interpretation, and. Corporations section 51xx foreign corporations, and trading or financial corporations formed within the limits ofthecommonwealth. A law which prescribes norms regulating the relationship between constitutional corporations and their employees, or affecting constitutional corporations in the manner considered and upheld in fontana films or, as gaudron j said in re pacific coal, laws prescribing the industrial rights and obligations of constitutional corporations. This article thus reframes the theory of statutory and constitutional interpretation. Constitutional interpretation 89 speaking up and speaking more 98 exhibit 2. Conciliation and arbitration for the prevention and settlement of industrial disputes extending beyond the limits of any one state. Corporations power aspects by peter applegarth sc the. Work choices o legislative provisions regulating conduct that consists of advising, encouraging or inciting an constitutional corporation to do something ie conferring rights or immunities work choices o legislative provisions preventing persons from making misrepresentations about the content of. Biographical chart of supreme court justices since 1900 b1 appendix c. The act also as prior to the reforms uses the trade and commerce.
The substantive repeal of the older provisions based on s 51xxxv of the constitution was a valid exercise of power under s 51xxxv. Unlike regular statutes interpretation is not conducted following a set method outlined in the aia, but is left up to the judges of the high court. Since its great decision in the engineers case in 1920, literalism has been the australian high courts enunciated methodology of constitutional interpretation. Nov 14, 2006 constitutional law cth constitutional interpretation applicable principles of interpretation relevance of failure of proposals to alter constitution by referendum. Amalgamated society of engineers v adelaide steamship co ltd. Courts prior decisions on questions of constitutional law. Constitutional courts, constitutional interpretation, subnational constitutionalism, statute of catalonia, direct democracy, religious freedom except where otherwise noted content on this site is licensed under a creative commons 2. Workchoices was the name given to changes made to the federal industrial relations laws in australia by the howard government in 2005, being amendments to the workplace relations act 1996 by the workplace relations amendment work choices act 2005, that came into effect on 27 march 2006. In upholding the constitutional validity of the work choices act the court. Constitutional absolutism or interpretivism 76 the balancing of interests or judicial selfrestraint 81 strict scrutiny or the preferred freedoms approach 86 the court in american history. Corporations power aspects by peter applegarth sc the aspect of the work choices case1 that i have been asked to address is the corporations power, particularly how the decision relates to earlier high court decisions on the power and. The work choices act amended the workplace relations act 1996 cth workplace relations act nicholas aroney,a.
Amalgamated society of engineers v adelaide steamship co ltd, commonly known as the engineers case, was a landmark decision by the high court of australia on 31 august 1920. It was passed in 1901, by referendum, and was enacted by the imperial parliament. However, many supreme court decisions have been actively opposed by significant segments of. A read is counted each time someone views a publication summary such as the title, abstract, and list of authors, clicks on a figure, or views or downloads the fulltext. Constitutional interpretation, or constitutional construction, is the process by which meanings are assigned to words in a constitution, to enable legal decisions to be made that are justified by it. A womens guide to constitution making 1 introduction the purpose of this guide is to support you and other women seeking to influence a constitutionmaking process in your country. Away from institutionalism and toward individualism 100. Ex parte construction, forestry, mining and energy union 2000 203 clr 346, 375. Gmu has an honor code with clear guidelines regarding academic integrity. Constitutional interpretation reading cth power in. The 2006 result in new south wales v commonwealth workchoices case2. The workchoices case law report abc radio national.
Nicholas aroney, constitutional choices in the work choices case, or. The constitution of the united states d1 appendix e. The states also highlighted the fact that attempts to amend the constitution to confer a broad power over employment and industrial relations have repeatedly been defeated at referenda, though the commonwealth strongly contested the relevance of that history in interpreting the. Politics, law and the constitution in mccawleys case. I was instructed to peruse professor aroneys article, constitutional choices in the work choices case, or. Work choices case nsw v cth gaudronjsstatementfrom re pacific coal adopted by the majority. Principle and interpretation cambridge university press, 2015 bruce linkermann i first came across professor aroneys writing a few years ago, at my constitutional law professors behest. Vol 331 federalism in australian constitutional interpretation 85 an arresting feature of the majoritys decision in engineers was the manner in which they attempted to reconcile the tension between responsible government and federalism by emphasising the former and disregarding the latter. In exercising its jurisdiction, especially under the second power described above, an important aspect of the work of a constitutional court is to provide a. Work choices, engineers case, reserved powers, federalism, high court of australia, federal balance, constitutional interpretation 6.
The court has to infer the spirit of the constitution from the language. The integrity of the university community is affected by the individual choices made by each of us. The immediate issue concerned the commonwealths power under s51xxxv of the constitution but the court did not confine itself to that question, using the opportunity to. Its functions are to interpret and apply the law of australia.
The role of the supreme court in interpreting the constitution when the supreme court issues an opinion, it is binding on the litigants, is enforced by the u. I introduction the submissions of the australian federal government that the workplace relations act 1996, amended by the workplace relations amendment work choices act 2005 was constitutionally valid prevailed with a majority of 5. The high court of australia hca is the highest court in the australian court hierarchy. In its strong est form, as enunciated by the griffith court, the reserved powers doctrine rested upon much firmer foundations than this account would suggest. Constitutional interpretation reading cth power in relation. For example, in the work choices case of 2006 new south wales v. A case of the tail wagging the dog michael halley a response to john f. We argue that legal interpretive rules are conceptually possible, normatively sensible, and actually part of our legal system. I introduction the submissions of the australian federal government that the workplace relations act 1996, amended by the workplace relations amendment work choices act 2005 was constitutionally valid. Judicial values and constitutional interpretation 89 speaking up and speaking more 98.
Constitutional interpretation and characterisation the constitution of australia is our premier legal document. Selected theories of constitutional interpretation congressional research service 1 introduction the united states constitution, as amended, is a complex legal document which sets out the structure of the federal government, the legal authorities of that government and, to a lesser. Click download or read online button to get a theory of constitutional rights book now. Pdf constitutional interpretation in federations and its. New south wales v commonwealth melbourne law school. High court decides on workchoices law institute of victoria. With reference to the high courts interpretation of the federal balance in the work choices case, the keystone of this essay would be the argument that there has been a shift in it and that there should be a confinement with regards to the margins of s 51 xx. The constitution must be interpreted in a broad and literal sense.
The decision of the high court in the work choices case presents a paradox. Constitutional law cth constitutional interpretation applicable principles of interpretation relevance of failure of proposals to alter constitution by referendum. Controversial in work choices case, as statutory interpretation requires that a statut e is read as a whole appropriate and adapted or proportionat dual characterisation it will be e nough if the law fairly answers the description of a law with respect to one given subject matter appearing in s 51, regardless of whether. The court should include justices with different approaches to constitutional interpretation. A good example is ir, where weve not got this national law, upheld comprehensively by the high court in the work choices case, but depending on your figures, and depending on the state, that. The engineers case llb259 constitutional law murdoch. Constitutional court cases in australia law library of congress. Workplace relations amendment work choices act 2005 cth. See also united states v obrien, 391 us 367, 3834 warren cj 1968. The corporations power in williams no 2 421 section, the creation of rights, and privileges belonging to such a corporation, the imposition of obligations on it and, in respect of those matters, to the regulation of the conduct of those through whom it acts, its employees and shareholders and, also, the regulation of those whose. Engineers case, reserved powers, federalism, high court of australia, federal balance, constitutional interpretation. Describing the decision as a shipwreck of titanic propor. The role of the supreme court in interpreting the constitution. These extensions are made possible by the reference power in s 57 of the constitution, the territories power in s 122, and a variety of other powers including s 522 in the case of commonwealth agencies.
A court without dissenters is a court that will not adequately inform us of the costs of choosing the path taken. Certain times and places are better suited to one theory of constitutional interpretation than are other times and places. J, work choices has been argued that the australian people did not consent to be governed by the intentions of the founding fathers but by the words of the constitution itself nsw v commonwealth, deane j at 511 textual originalism focus. Professor john mannings analysis of the supreme courts recent feder. Thus, the challenges of constitutional interpretation will be discussed first.
96 807 1295 161 669 1645 1190 769 268 1277 56 1131 789 345 796 108 1074 851 669 965 1570 1034 301 858 1222 948 1000 821 458 1054 607 621 519 1036 1478 501 768 715