Paul Kildea

High Court Review 2006: Australian federalism - implications of the WorkChoices decision

This years High Court Review focuses exclusively on the WorkChoices decision, in which the federal governments new industrial relations regime was upheld by the High Court as within the Commonwealths powers under s. 51(xx) of the Constitution, the corporations power. The implications of the judgement are potentially momentous for Australian federalism. Thus, we begin with an overview of changes in Australian federalism over time, including its fortunes in the High Court of Australia. We then consider the WorkChoices decision itself, outlining the most important aspects of the decision. We argue that the decision is the most important High Court decision on the constitutional division of federal powers since 1983, especially in the context of the corporatisation of policy delivery in the past few decades. Moreover, it reinforces the dominance of an orthodoxy in constitutional interpretation, thus confirming the demise of ‘activist’ tendencies. Finally, the judgement demonstrates the Courts preparedness to confirm changes to the workings of Australian federalism that, the evidence suggests strongly, would not pass at referendum. However, this view of the centralist implications of the decision is mediated by a consideration of the workings of intergovernmental relations. An examination of the potential changes in this area reveals a more complicated outcome, one with important implications for the manner in which intergovernmental negotiations might be conducted in future.

A Little More Conversation? Assessing the Capacity of Citizens to Deliberate About Constitutional Reform in Australia

Citizen-led deliberative forums are rapidly becoming a familiar part of the constitutional reform process in liberal democracies around the world. One assumption behind the use of such forums is that citizens have the capacity to deliberate well about complex issues. Yet this assumption remains largely untested with respect to deliberation among Australians about constitutional change. This article inquires into the capacity of Australian citizens to deliberate about constitutional reform by undertaking an empirical examination of the experience of three different types of citizen-led deliberative forums held between 1993 and 1999. Based on the experience of these forums, it argues that citizens are capable of engaging in quality deliberation on constitutional reform, and that the act of deliberation helps to develop individuals’ existing capacities. However, it contends that sound design and execution are essential if certain threats to deliberation – such as unequal understanding and domineering individuals – are to be countered. The article concludes that citizen-led deliberative forums can help to strengthen public engagement in constitutional issues and that they warrant closer consideration from Australian governments in their design of reform processes.

Towards Youth Engagement in the Referendum on Indigenous Recognition

10. Civics Expert Group, Whereas the People: Civics and Citizenship Education (1994) 47; Krinks, above n 7. Looking ahead to the referendum on constitutional recognition of Aboriginal and Torres Strait Islander peoples, one of the more difficult challenges will be designing and implementing a process that secures high levels of popular engagement. As several commentators have observed, public understanding and participation are critical if Australians are to feel a sense of ownership over the referendum, and if the outcome is to attract a broad legitimacy.1 The expert panel was alert to the importance of public engagement, as shown by its recommendation that the federal government implement ‘a properly resourced public education and awareness program’ in the lead up to the referendum.2 It is also presumably what Jenny Macklin, Minister for Indigenous Affairs, had in mind when she urged Australians to gather around their kitchen tables and barbeques and have ‘conversations’ about constitutional reform.3