Work Choices Case

In the dissenting judgment made by Callinan J in the landmark New South Wales v Commonwealth (“Workchoices’ Case”), a strong criticism was mounted against constitutional interpretation methods employed in the judicial forum. Explicitly, this conjecture was focused at Isaacs J’s judgement in Amalgamated Society of Engineers v Adelaide Steamship Co Ltd (“Engineers’ Case”), where a textualism approach to constitutional interpretation was adopted. Callinan J expressed the Engineers’ Case as “less than satisfactory”, using “detached language” to discredit its literal methodology of interpreting the constitution.

The American Constitution was questionable from the earliest starting point, as thoughts were separated between backers - an answer for all the country's issues, and commentators - a depravity of its republican standards. The supporters trusted that the Constitution augmented their republican thoughts, adding another level to the chose government, while the faultfinders trust the republicans worked in little political units, for this situation the states. The most effective method to separate the force between state governments and focal government was in this way a principle contention while the Constitution was composed furthermore later in time, remaining a vital issue until today.

There has been much controversy in the recent years regarding whether or not the U.S. Constitution is still able to deal with contemporary problems or if it is out of date. Most individuals who feel inclined to criticize the document emphasize that a lot of things have changed since it was first issued and that it is absurd for someone to consider that its principles still apply today. The people who devised the constitution were unable to foresee the conditions that the U.S. might one day experience. Even with this, it is difficult to determine whether the constitution is actually out of date or not when taking into account the multiple similarities between individuals in the late eighteenth century and the twenty-first century.

A Constitution, to contain an accurate detail of all the subdivisions of which its great powers will admit, and of all the means by which they may be carried into execution, would partake of the prolixity of a legal code, and could scarcely be embraced by the human mind. It would probably never be understood by the public. Its nature, therefore, requires that only its great outlines should be marked, its important objects designated, and the minor ingredients which compose those objects be deduced from the nature of the objects themselves. (McCulloch V. Maryland)

The framers of the constitution were purposefully vague in the wording of many articles throughout the constitution. As a significant portion of the constitution’s framers were themselves lawyers, I believe this deliberate vagueness was an effort to prevent the spirit of the document from becoming lost in the semantics of verbatim analysis so often favored by barristers and politicians. This necessitates that we look at other works of the time to help us in interpreting the framers intent. To these ends constitutional scholars, the federal courts and laymen alike have relied heavily on the Federalist Papers for additional insight

federal government was one of the most volatile disagreements between the two major parties. Though the Constitution had seemingly established the guidelines to end this dispute by defining what powers the federal government may have, there were still disagreements over how loosely to interpret the arguably ambiguous document. The ambiguity of the Constitution rests almost fully in its “Elastic Clause”: the clause allowing Congress “the power to pass all laws necessary and proper for carrying out the enumerated list of powers”. Alexander Hamilton, a Federalist, manipulated this Elastic Clause to establish a federal bank, stating “[the Elastic Clause]...ought to be construed liberally in advancement of the public good” (Doc . 5).

After the failure of the Articles of Confederation, the founders believed it was necessary to hold a National Convention to revise it in order for it to become the Constitution. After the signing of the Constitution, two groups were created. The Anti-federalists who composed a series of essays one known as An Old Whig V (1787) suggests that an inclusion of a Bill of Rights would be more effective in clarifying the limits of the government, while others, the Federalists, opposed to it. To understand the effects of ratifying a Bill of Rights in the Constitution, both sides must be analyzed. This paper examines An Old Whig V’s arguments against the Federalist, mainly letters from Alexander Hamilton, John Jay, and James Madison, to propose that the inclusion of a Bill of Rights allows citizens to verbalize their right of protection in regards to the occasion of being shown in the Constitution.

The Australian Constitution is a rich amalgam of various classical political principles. The concepts of the Rule of Law and the doctrine of the Separation of Powers evident in Montesquieu’s Spirit of the Laws are both salient examples of political theses that are central to Australian Constitutional Law. The structure of the Constitution itself and decisions of the High Court of Australia unequivocally validate the entrenchment of the doctrine separation of powers in the Commonwealth Constitution . In particular, the High Court has applied this with relative rigour with respect to the separation of judicial power. The separation of the judicial power is fundamentally critical to upholding the rule of law. The High Court in Wilson v Minister for Aboriginal Affairs noted that “the separation of the judicial function…advances two constitutional objectives: the guarantee of liberty and, to that end, the independence of Chapter III judges” . Kitto J in R v Davidson also identified that the judiciary should be subject to no other authority but the law itself . This is a critical aspect ensuring the concept of legal equality is upheld. Therefore, its role clearly extends to providing checks and balances on the exercise of power by the legislative and executive arms of government . This ensures the liberty of the law and limits the abuse of the judicial system. Judicial Power is defined as “the power which every sovereign must of necessity have to decide between its subjects

Throughout the history of this nation, the Constitution, from the formation to the execution thereof, has set forth the precedent for the demonstration of excessive federal power that is clearly illustrated by history and modern America. Sufficient documentation to back up this premise includes primary documents such as James Madison’s Federalist No. 10, the Constitution of the United States, and other historical pieces. Ample consideration should be given to the paramount decisions of America’s elected officials in critical moments as well in the very construction of the American system of government that favors federalism.

that contemporary society exists in a post-modern era where westernised societies enjoy the benefits of higher living standards, where the rights of employees are elicited within the Australian Constitution and the rights of humans are dictated within Geneva conventions. An era where employees are entitled to government pensions, allowances, superannuation, and employees accrue sick and annual leave (McDonald & Brownlee, 2001). Furthermore employees are able to seek union representation and are legally entitled to industrial action. McDonald and Brownlee (2001) assert that Fair Work Australia, established as an institution responsible for fixating minimum wage and resolving work related disputes, perpetuates the notion that Australia is in transition to become an egalitarian society with minimal class disparity.

It is certainly true that the current law defining the employment status of ‘workers’ is uncertain, as it is wholly inflexible to deal effectively with cases of non-standard forms of employment, atypical workers, for example: agency workers, part-time workers, fixed-term workers, as required workers and homeworkers. Thus, reform is necessary to redress the concerns of lack of legal certainty in relation to this area of the law.

‘the actual operation of legal rights in the workplace depends on the power, knowledge and organisation of the parties as well as on the statute book’ (Edwards, 2003:15)

Alexander, R., & Lewer, J., (1998). Understanding Australian Industrial Relations (5th ed.). Sydney: Harcourt House, Chapter 7.

3. Evans, R. (2002). Outworkers take corporate Australia to court. Available: http://www.greenleft.org.au/node/26560. Last accessed 23

Walsh, D. J. (2016). Employment Law for Human Resource Practice, 5th Edition. [Strayer University Bookshelf].