Australian Politics and Policy - Senior, 2019a

Courts
jurisprudence, it chose to view the Constitution as an Imperial statute (which
it technically was, having been passed by the Imperial parliament in England)
rather than a federal compact. On this view, the Imperial parliament was simply
distributing power between the federal and state governments. The governments
were not in competition with each other, in the sense that the grant of power
to one should not be viewed as diminishing the power of the other. 50 While,
strictly speaking, this change in approach did not necessarily favour the federal
government, history has shown that it has. This is because the court has generally
been willing to read the powers given to the federal government expansively, with
the result that the federal government has been able ‘to advance into areas
previously held to be within the powers reserved to the state legislatures’. 51
Examples of such advancement include areas where the federal government has
been able to rely on its power to legislate in respect of ‘external affairs’ to:
• pass racial discrimination legislation applying across Australia 52
• stop the building of a dam by the Tasmanian government in Tasmania 53
• preventtheforestryoperationsandtheconstructionofroadsinTasmanian
forests 54
• impose throughout Australia a minimum wage, equal pay, unfair dismissal and
parental leave. 55
The federal government has also been able to rely on its power over ‘foreign
corporations, and trading or financial corporations formed within the limits of the
Commonwealth’ to:
• regulate the trading activities of a corporation even though those activities
onlyoccurwithinonestateandeventhoughanotherpowergiventothe
Commonwealth only applies to ‘trade and commerce with other countries, and
among the States’ 56
• passtheWorkplace Relations Amendment (Work Choices) Act 2005 (Cth), which
was intended to apply to up to 85 per cent of the Australian workforce and
fundamentally reshape industrial relations in Australia (it was, however,
repealed when there was a change of government). 57
50 Selway and Williams 2005, 480.
51 Selway and Williams 2005, 480.
52 Koowarta v Bjelke-Petersen (1982) 153 CLR 168.
53 CommonwealthvTasmania(1983) 158 CLR 1 (Tasmanian Dam).
54 Richardson v Forestry Commission (1988) 164 CLR 261.
55 Victoria v Commonwealth (1996) 187 CLR 416 (Industrial Relations Act).
56 Strickland v Rocla Concrete Pipes Ltd (1971) 124 CLR 468.
57 New South Wales v Commonwealth (2006) 229 CLR 1 (Work Choices).
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