Mark Hearn

HISTORICAL PERSPECTIVES ON CURRENT ISSUES

Vitiating the Federal Principle: The High Court Work Choices Case, 2006

Its first and highest functions as an Australian court – not its first in point of time, but its first in point of importance – will be exercised in unfolding the Constitution itself. That Constitution was drawn, and inevitably so, on large and simple lines, and its provisions were embodied in general language ... Consequently ... it opens an immense field for exact definition and interpretation. Alfred Deakin, second reading debate on the Judiciary Bill, 1902.¹

On 14 November 2006 the High Court of Australia handed down its decision in a case simply described in this commentary as Work Choices 2006.² Essentially, and as Andrew Stewart and George Williams observe in Work Choices: What the High Court Said, a majority of the justices of the Court found the Howard Government's 2005 Work Choices legislation valid, agreeing with the Commonwealth's submissions that 'the corporations power should be given a broad interpretation'. The Constitutional head of power under which the Howard Government sought radical renovation of Australia's industrial relations system, including a sweeping transfer of responsibility from the states, was appropriately invoked by the Commonwealth. Just as significantly, the majority also 'rejected any suggestion that they should have regard to some kind of federal balance implicit in the Constitution'.³ These were conclusions based in a judicious interpretation of the history of nation building since Federation and the powers invested in the Constitution. This interpretation was challenged by an alternative reading of a dramatic and discursive history provided in a dissenting judgement: Justice Kirby drew attention to the ethics of nation building as reflected in the Court's regulation of work, and the Court's role in upholding the integrity of the industrial relations powers provided under the Constitution. This commentary follows the complex history elaborated and allusively echoed in the majority and dissenting judgements and begins with a reflection on the federal principles which the constitutional architects, led by Alfred Deakin, sought to embody in the High Court of Australia.

The High Court and the Federal Compact

In March 1902 the Attorney-General Alfred Deakin led the second reading debate on behalf of the Barton Government's Judiciary Bill, the legislation that would establish the High Court of Australia. In a speech immediately appreciated as one of the finest of his political career, Deakin set out the principles that defined the new Court's role in the federal system, the system to which Deakin had invested his aspirations for the nation and its people. The federal system, Deakin explained to a rapt audience in the House of Representatives and the gallery, embodied a series of compacts, 'between State and State, and between the Commonwealth and its people as a whole, dealing with all classes and interests', compacts which 'are to be interpreted and safeguarded by this court'.⁴

The High Court was not conceived as a mere administrative adjunct to the operation of the federal system; it would be the interpretative fulcrum upon which the system pivoted, applying a correcting balance to harmonise the competing interests of government and people, with the justices of the Court, mindful of the complex relationships they safeguarded, and the liberal principles which embodied their mission, at once intervening and restrained in their interventions.

Yet Deakin also welcomed the unknown and immense field of interpretation that unfolded from the Constitution. Deakin was ready to leap into the dark, and urged the people to have the faith in themselves to plunge toward an unimagined future:

how many of us yet realize ... the complex character of every federal system, and the specially complex character of that created by our Federal Act ... There is a large area of disputable territory, which has yet to be marked, either to our relative gain or relative loss of power and authority.⁵

This complexity was not to be feared or shunned; it was embraced as the organic spirit of a federal system.

The nation lives, grows, and expands [and] the organ of the national life which preserving the union is yet able from time to time to transfuse into it the fresh blood of the living present, is the Judiciary, the High Court of Australia.

Neither was this complexity anarchic; this adaptation, regulated by the High Court, would proceed 'by gradual, often indirect, cautious, well considered steps', enabling the past to be joined to the future 'without undue collision and strife in the present'. Thus the High Court was a crucial instrument of change and balance, preserving the federal union as it proceeded into an unknown future, but still drawn back to the principles which had created a federation of diffused rights and responsibilities, at once restrained, at once intervening. The changing federal compact would also be regulated and scrutinised by Parliament, and by the people, consulted at periodic elections and via s.128 of the constitution, which provided for amendment of the Constitution via referendum, once approved by a majority of the people and a majority of the states. A double hurdle for constitutional renovators, for as Deakin warned, the Constitution was 'an instrument not to be lightly altered, and indeed incapable of being readily altered'.⁶

Despite his willingness to adapt to change, Deakin hoped that the large and simple lines of the Constitution would themselves provide a defence of the principles which had animated the federal convention delegates. Deakin strove to assure the House (which included a number of those men who had sat as convention delegates in the same chamber in 1898) that these principles, through the instrument of the Constitution, would 'remain in force for more years than any of us can foretell, and ... apply under circumstances probably differing most widely from the expectations now cherished by any of us'.⁷

The expectations cherished by Alfred Deakin were those of a nation which offered inclusion and reconciliation to its citizens, an elusive peace Deakin struggled after all his life, to be projected onto the nation through the establishment of 'the people's peace' in the Conciliation and Arbitration Act 1904, a measure which, Deakin claimed, would transform industrial society and its divisive convulsions into a 'realm of reason' in the restrained intervention of the Commonwealth Conciliation and Arbitration Court, creating not merely more efficient or equitable industrial relations, but beginning 'a new phase of civilisation'.⁸

The Terms of Work Choices 2006

That phase of civilisation seems now to have lapsed. In December 2005 the Commonwealth Parliament of Australia enacted the Workplace Relations Amendment (Work Choices) Act 2005 (Cth). The principle object of this Act of the Howard Government, as summarised in the majority decision of the justices of the High Court in Work Choices 2006, was to 'provide a framework for cooperative workplace relations which promotes the economic prosperity and welfare of the people of Australia' to be achieved through a variety of mechanisms, including 'establishing and maintaining a simplified national system of workplace relations' and 'ensuring that, as far as possible, the primary responsibility for determining matters affecting the employment relationship rests with the employer and employees at the workplace or enterprise level'.⁹ Unions would be marginalised in a system that enhanced the managerial prerogative of employers. Workplace bargaining would be encouraged through Australian Workplace Agreements (AWAs), the system of individual contracts that the Howard Government has promoted with dogged persistence and limited success since first being elected to office in 1996.

The majority in Work Choices 2006, including the Chief Justice, Murray Gleeson, joined by Gummow, Hayne, Heydon And Crennan JJ, rather mildly observed that 'the most notable change effected by the Amending Act was an alteration of the constitutional basis of the Act'. They went on to explain that

Although certain provisions of the new Act are still based on the conciliation and arbitration power, and although the Amending Act invoked other heads of Commonwealth legislative power, the new Act is now, in large part, an exercise of the corporations power. The Parliament's capacity to rely upon that power to sustain the legislation is the principal question in issue in these proceedings.¹⁰

Fundamentally at issue was whether one placitum of section 51 of the Constitution ('s 51 (xx) Foreign corporations, and trading or financial corporations formed within the limits of the Commonwealth') should prevail over another ('s 51 (xxxv) Conciliation and arbitration for the prevention and settlement of industrial disputes extending beyond the limits of any one State'), and indeed provides a sweeping legitimation of a broad expansion of Commonwealth power, particularly at the expense of the states.

Five of the states: New South Wales, Victoria, Queensland, South Australia and Western Australia, and two trade union organisations: Unions NSW and the Australian Workers Union (AWU) – challenged the constitutional validity of the Act.

The Labor dominated state governments repudiated the assault on the federal system represented by the Howard Government's appropriation, through the corporations power, of responsibility for the regulation of industrial relations. The state industrial relations systems, as old and if not older than the Commonwealth system, would effectively disappear. Substantive control of the terms of work – the daily conduct of the vast majority of the nation's citizens – would now be in the hands of the federal government, representing an unprecedented transfer of industrial power, and therefore political power, in the history of the Commonwealth of Australia.

The labour movement has since the election of the Howard government in 1996 maintained a determined resistance to AWAs, and the Work Choices system that came after the 2004 federal election to govern their operation. The High Court challenge provided a coherent focus for this opposition, grounding the labour movement's objection in a challenge to an Act that, the labour movement claimed, represented an assault on workplace rights and the democratic right of trade union participation, rights upheld in the civilising spirit and intention of Commonwealth law since the Conciliation and Arbitration Act 1904.

It is appropriate that the AWU maintained its dogged independence – or isolationism, whichever the reader prefers – in appearing as a distinctive party in the proceedings. The AWU were early champions of the Commonwealth conciliation and arbitration system, and the Court's president, Justice Henry Bournes Higgins, appreciated a vigorous union ally; in 1907 the Pastoral Industry Award, from claims lodged by the AWU on behalf of its members, was the first substantive and truly national award created by the Arbitration Court. The AWU would maintain this stubborn, stand-alone allegiance to arbitration in the face of the hostility and derision of other unions who scorned the system while nonetheless feeling obliged to persist with it. Yet the AWU was not an uncritical champion. The union regularly complained of the system's legalism and excessive cost; the people's peace came at a price.¹¹

The Howard Government's 2005 legislation stripped the national industrial relations system of some of its familiar structural legalism – if not the lucrative consultations provided by the profession – while creating convoluted bureaucratic forms in an attempt to drive the uptake of AWAs by employers and employees, and to try to stamp out the politically embarrassing brush fires ignited by this force-fed uptake (ie, the Office of Workplace Services). Work Choices completes the effective destruction of the award system and the federal authority which has, in various forms, regulated awards since the passage of the Conciliation and Arbitration Act in 1904. Ironically, it has fallen to Opposition Leader Kevin Rudd to declare the Australian Industrial Relations Commission redundant, as part of Labor's plan to replace the AIRC and the various Howard-initiated agencies with one authority. Federal Labor has itself been tempted by the High Court to impose a national uniform industrial relations system, although a number of the states, notably New South Wales and Queensland, remain determined to maintain their industrial relations systems in some form.

Reading the Historical Narratives of Work Choices 2006

History provides powerfully vindicating metaphors. In order to construct their judgement, the majority in Work Choices 2006 felt that they must construct their own history, and in the 411 pages of the decision that may be downloaded from the High Court's web site, it is apparent that they have elaborated an extraordinary history, not only of accumulated legal judgements but of the divided history of Australian labour and nation building since the late nineteenth century.

The majority preferred to construct their history from the appropriated wisdom of their predecessors. Hence they found that

It is immediately useful to bear in mind what Windeyer J said in Victoria v The Commonwealth ('the Payroll Tax Case'): 'The Colonies which in 1901 became States in the new Commonwealth were not before then sovereign bodies in any strict legal sense; and certainly the Constitution did not make them so. They were selfgoverning colonies which, when the Commonwealth came into existence as a new Dominion of the Crown, lost some of their former powers and gained no new powers. They became components of a federation, the Commonwealth of Australia. It became a nation. Its nationhood was in the course of time to be consolidated in war, by economic and commercial integration, by the unifying influence of federal law, by the decline of dependence upon British naval and military power and by a recognition and acceptance of external interests and obligations. With these developments the position of the Commonwealth, the federal government, has waxed; and that of the States has waned. In law that is a result of the paramount position of the Commonwealth Parliament in matters of concurrent power. And this legal supremacy has been reinforced in fact by financial dominance. That the Commonwealth would, as time went on, enter progressively, directly or indirectly, into fields that had formerly been occupied by the States, was from an early date seen as likely to occur. This was greatly aided after the decision in the Engineers Case, which diverted the flow of constitutional law into new channels'.¹²

A history that deftly unfolds a narrative of the gradual but apparently inevitable extinction of the states: the fittest – the Commonwealth – had flourished by virtue of legal supremacy and financial dominance. Above all, the relentlessly clarifying mechanism of Commonwealth ascendancy since the 1920 Engineers Case has been provided by the corporations power. Barely a year after Deakin's death, the High Court ruled that Commonwealth industrial awards should take precedence over state awards, and rejected the 'doctrine of implied immunities' or the idea that the states enjoyed 'reserved' powers. Indeed, Stewart and Williams argue that

the Work Choices case was lost as far back as the Engineers decision ... Since Engineers, a Commonwealth law will be valid if it can be 'characterised' as dealing with a subject that falls within the bounds of one of the Commonwealth's specified powers. In interpreting those powers, there is no assumption that anything must be left for the States.¹³

Subsequent High Court interpretations of the corporations power followed the logic of the Engineers Case, so that by Work Choices 2006 it remained only for the Court to guide the parties through the complex history of judicial misunderstanding represented by the Huddart Parker case of 1909, which upheld the notion of reserved powers, through to the correction provided by the Engineers Case and its successors. Yet the majority in Work Choices 2006 also acknowledged that the Engineers Case was 'a consequence of developments outside the law courts (not least a sense of national identity emerging during and after the First World War)'.¹⁴ Apparently the strictures of the law could be legitimately shaped by reference to factors beyond the words and intentions expressed in the Constitution; a conclusion drawn by a majority broadly identified with a resistance to judicial activism – an activism which at least in part is inspired by (or condemned for) acknowledging, in verdicts, factors and values at work in society.

The seamless elaboration of the majority's interpretation was disturbed by the dissenting judgements handed down by Kirby and Callinan JJ. In separate arguments, both challenged the apparently irresistible appeal of the corporations power. Kirby struck directly at the majority's extraordinary emphasis on the reach of the corporations power.

It is the very amplitude of the power to make laws with respect to constitutional corporations, thus upheld, that obliges this Court to face squarely what I regard as the central issue in these proceedings. This is whether the corporations power is completely unchecked and plenary, and disjoined from other powers granted by the Constitution to the Federal Parliament. Or whether (as past history, experience and authority suggest) that power is subject to restrictions suggested by other paragraphs of s51, notably par (xxxv).¹⁵

Kirby invoked the High Court's rejection of the Chifley Government's 1947 bank nationalisation legislation.

As Latham CJ explained in Bank of NSW v The Commonwealth ('the Bank Nationalisation Case'): '[N]o single power should be construed in such a way as to give to the Commonwealth Parliament a universal power of legislation which would render absurd the assignment of particular carefully defined powers to that Parliament. Each provision of the Constitution should be regarded, not as operating independently, but as intended to be construed and applied in the light of other provisions of the Constitution. Thus an endeavour should be made to 'reconcile the respective powers ... and give effect to all'.¹⁶

Perhaps inconveniently for either supporters of Work Choices or the Commonwealth arbitration system, Justice Callinan argued that an assertion of unfettered power, over either corporations or industrial relations, was in flat contradiction of the federal nature of the Constitution: 'the founders never intended the Constitution to confer any intrastate industrial power upon the Commonwealth despite that some of the delegates might have wished it otherwise'. Callinan also disputed an assumption that the federal convention delegates were too dull to understand the nature of corporations.

Any suggestion that the founders were in some way uninformed about, or unacquainted with, the doing of business by companies, or intended when drawing the corporations power that it might or should embrace all activities of a corporation, including its arrangements with its employees, would be to do them a grave injustice.

It may be that the law and constitutional power should be allowed to evolve over the course of time, as Deakin anticipated in 1902; but not perhaps to fundamentally subvert the federal nature of the Constitution and the Commonwealth. To obtain the sweeping powers now 'asserted' by the majority, Callinan argued that 'constitutional change would be necessary' – that is, the people would have to approve such enhanced powers in a referendum.¹⁷

Kirby had no doubt of the validity of the Court's role in regulating and enhancing the industrial relations power. Kirby argued that before the majority contrived to effectively extinguish the industrial relations power as a source of constitutional authority, it should 'recall to mind the important guarantee of industrial fairness and reasonableness that has been secured by this Court's adherence to the requirements of s 51(xxxv) over more than a century'. For Kirby, history as invoked from Harvester in 1907, and 'its successors, had a profound effect on the wages and conditions of life of Australian workers and their families', establishing standard hours, providing for equal pay, removing discriminatory employment conditions for Aboriginals, regulating excessive overtime to compensate workers and to encourage employers to a better system of organising the work, the introduction of bereavement or compassionate leave entitlements, provisions for retrenchment for redundancy and reinstatement in cases of unfair termination.

Kirby argued that the effect of this history, that clearly followed from the industrial relations power under s 51 (xxxv),

profoundly affected the conditions of employment, and hence of ordinary life, of millions of Australians. It did so in the years following federation, and indeed until very recently. Inherent in the guaranteed procedures of "conciliation and arbitration" was a safeguard, restriction or qualification upon the deployment of federal governmental power that ultimately committed outcomes to determinations by independent decision-makers who were obliged to take into account not only economic considerations but also considerations of fairness and reasonableness to all concerned and the consistent application of the principles of industrial relations in Australia.¹⁸

Kirby also drew attention to the ethical implications of the majority's assertion of the corporations power, citing the view of Professor Ron McCallum that 'laws based upon the corporations power [alone] will be centred around corporations to the detriment of flesh and blood persons who interact with corporations'. McCallum argued that labour laws based on the corporations power

will become little more than a sub-set of corporations law because inevitably they will fasten upon the economic needs of corporations and their employees will be viewed as but one aspect of the productive process in our globalized economy.¹⁹

Yet none of this compelling and detailed history, nor Kirby's exposure of the legal, historical and ethical weakness of the majority's arguments, were able to overcome the majority's unilateral assertion of the corporations power, as Kirby conceded:

The clearest possible indication of the extremely wide conception of the corporations power which the joint reasons embrace emerges from the fact that not a single particular objection raised by the plaintiffs and interveners is upheld in those reasons. Not one of the complaints about the excessive width of the supposed ambit of the corporations power is found to have hit its constitutional mark. Not one sub-section, paragraph or regulation, challenged by the plaintiffs, is struck down.²⁰

The majority found that their assertion of the corporations power in Work Choices 2006 was sustained by an unimpeachable weight of precedent; in their judgement all aspects of the plaintiff's objections to the Act failed. Invoking the corporations power, the Commonwealth could effectively subsume the state industrial relations systems, and on the same basis the objections raised to elements of the Act by Unions NSW and the AWU also comprehensively failed.

The majority in Work Choices 2006 constructed a persuasive argument, provided that you accept that the Commonwealth's regulation of industrial relations can be adequately or appropriately constructed through the corporations power, and providing that you set aside the history of Commonwealth conciliation and arbitration as it has accrued since 1904, and a conviction that the majority's assertion of the corporations power is in explicit contradiction of the intentions of the federal convention delegates, the people voting to approve the Constitution Bill via referenda prior to 1901, and the generations of Australians who have resisted successive referenda proposals to increase Commonwealth power over industrial relations.

The People as the Legitimate Foundation of the Constitution

It is these democratic precedents which the majority in Work Choices 2006 have decided they may ignore. The majority in Work Choices 2006 were dismissive of the relevance of the various referenda which preceded their deliberations:

Constitutional construction is not so simple a process as the argument from failed referendums would have it ... The failure of successive referendums to alter s51(xx) and s51(xxxv) provides no assistance in the resolution of the present matters.²¹

This dismissive rationalisation attempts to set aside the debate in the public sphere over industrial relations and focus only on legal discourse. Yet the public discourse has profoundly infiltrated judicial interpretation. Significantly, the Engineers interpretation was provided by 'a case stated under the Judiciary Act, section 18, on a hearing of a summons under section 21AA of the Commonwealth Conciliation and Arbitration Act'.²² The disputed territory of Commonwealth power that Deakin had anticipated in the debate on the Judiciary Bill has often been contested over industrial relations; and this is hardly surprising, for it provides the battlefield of the day by day power struggle in liberal capitalism: the contested territory of work. It also helps to explain repeated struggles to increase Commonwealth power over industrial relations, and why these attempts have aroused passionate resistance.

Industrial relations have provided a key battleground of state power since federation, in Parliament and the workplace, and in repeated challenges to the scope and intention of Commonwealth law. These challenges have not only been contested in courts: as Stewart and Williams remind us, on seven different occasions, in 1911, 1913, 1919, 1926, 1944, 1946 and 1973, the Commonwealth has sought to increase power over industrial relations via referenda.²³

The majority of these referenda proposals were placed before the people by the Australian Labor Party. In 1911, Labor proposed to alter the Constitution to provide the Commonwealth with sweeping power over trade, corporations and industrial relations. Attorney-General Billy Hughes did not believe that in order to increase Commonwealth power over corporations that it was possible or appropriate to do so without specific amendment of the industrial relations power, an assumption common to most of the referenda proposals advanced from 1911 to 1973. This assumption was not due to some mistaken reading of Commonwealth power: it was based in a perceived requirement to directly and plainly indicate to the people the specific nature of the constitutional changes being sought.

In 1911 and 1913 Attorney-General Billy Hughes and the Fisher Labor Government may have been prompted by a radical ambition to increase Commonwealth power and to extend the logic of the Australian Settlement, the federal compact that Deakin and his fellow liberal protectionists had, with Labor support, done so much to provide structure and meaning through measures such as compulsory arbitration, tariff protection and immigration restriction.²⁴ Labor did not seek to extend power over industrial relations by a sleight of hand, appropriating power over industrial relations via a judicial expansion of the corporations power neither tested by legislative deliberation in the Parliament nor approved by the people in referenda. Ironically, the Howard Government may have been reluctant to subject its neo-liberal industrial relations reforms to a referendum precisely because the people have been so consistent in applying their own conception of liberal federalism: seeking the benefit of government intervention in their lives while periodically asserting their right to restrain it.

Kirby argued that while the referenda issue was not necessarily decisive, neither should it be ignored:

If we acknowledge that the ultimate foundation of the legitimacy of the Constitution is now derived from its acceptance by the Australian people, the continued refusal of the Australian electors to approve the creation of a general power of industrial relations by constitutional amendment, while obviously not decisive of the outcome in these proceedings, remains a relevant factor to be considered when construing the contemporary meaning of the constitutional text and structure, including the interaction between ss 51(xx) and 51(xxxv). If amendments that are agreed to are relevant to the meaning of the Constitution, those that have been repeatedly rejected should not be so lightly cast aside as irrelevant.²⁵

It is an indictment of the negligent practice of democracy in contemporary Australia that neither state governments nor the labour movement felt compelled to challenge the Commonwealth to put its proposed industrial relations changes directly to the people through a referendum. It was also a significant error of political strategy. Prime Minister John Howard deeply fears the judgment of the Australian people over Work Choices, and was doubtless appreciative of the opportunity to hide behind the verdict of the High Court. A referendum defeat would not have forced the Howard Government from office; it remains to be seen, despite claims in opinion polls, whether community resistance to Work Choices will provide a dominating issue at the next federal election, or whether its impact will be blunted in the turbulence of an election campaign.

The judgements in Work Choices 2006 provide a rich history of our society and the contested terrain of work. It is a history not merely of permissive or constraining legal doctrines but of nation building, and the justices of the High Court, good literalists and interventionists alike, have been alert to their nation building duties. The majority has consistently expressed this duty in a sustained project to simplify the complex character of the Australian federal system by extending the prerogatives of the Commonwealth. In late 1910 Deakin delivered his last great set piece speeches in the Commonwealth Parliament, warning that if Labor's referenda proposals were to succeed 'the 1901 constitution would be effectively 'superseded', with 'the federal principle ... vitiated once and for all'. The Commonwealth would 'exercise a despotic control over every commercial or manufacturing undertaking in Australia'. Such a sweeping control that

one will not be able to buy a pennyworth of lollies, to drive a nail into a boot, to shear a sheep, to sow grain, to pick fruit, or to carry a hod, in any part of this continent without coming under the operation of Commonwealth laws.²⁶

In 2006 it appears the High Court of Australia provided the Howard Government with a fatal vitiation of the federal principle, facilitating a profound transfer of power that avoided either the endorsement or the repudiation of the Australian people.

Mark Hearn teaches Australian History at Macquarie University. He is the co-editor with Grant Michelson of Rethinking Work, Time, Space and Discourse (2006).
<Mark.Hearn@humn.mq.edu.au>

Endnotes

^1. Commonwealth Parliamentary Debates, (hereafter CPD), 18 March 1902, p. 10,965

^2. References to Work Choices 2006 in this article follow the page numbering of the downloaded judgement. The judgement, formally entitled 'New South Wales v Commonwealth of Australia; Western Australia v Commonwealth of Australia [2006] HCA 52' can be found on the High Court of Australia web site and downloaded via the link <http://www.austlii.edu.au//aucases/cth/HCA/2006/52.html> (accessed March 2007).

^3. Andrew Stewart and George Williams, Work Choices: What the High Court Said, Federation Press, Sydney, 2007, p. 4.

^4. CPD, 18 March 1902, p. 10,965 ; John La Nauze, Alfred Deakin: A Biography, Melbourne University Press, Melbourne, 1965, p.,289.

^5. CPD, 18 March 1902, p. 10,965.

^6. Ibid.

^7. Ibid.

^8. CPD, 30 July 1903, p. 2,864.

^9. Work Choices 2006, p. 4.

^10. Ibid., p. 1.

^11. Mark Hearn and Harry Knowles, One Big Union: A History of the Australian Workers Union 1886–1994, Cambridge University Press, Melbourne, 1996, pp. 95–6, 106.

^12. Work Choices 2006, p. 21.

^13. Stewart & Williams, Work Choices: What the High Court Said, pp. 8–9.

^14. Work Choices 2006, p. 80.

^15. Ibid., p. 175.

^16. Ibid., p. 203.

^17. Stewart & Williams, Work Choices: What the High Court Said, pp. 124–126.

^18. Work Choices 2006 pp.203–205.

^19. Ibid., pp. 205–206.

^20. Ibid., p. 174.

^21. Ibid., p. 58.

^22. Frank Crowley (ed.), Modern Australia, 1901–1939: A Documentary History of Australia Vol.4, Thomas Nelson Australia, Melbourne, 1978, p. 336.

^23. Stewart & Williams, p.14.

^24. Mark Hearn, 'Examined Suspiciously: Alfred Deakin, Eleanor Cameron and Australian Liberal Discourse in the 1911 Referendum', History Australia, vol. 2, no. 3, December 2005, pp. 87.1–87.20

^25. Work Choices 2006 p. 183.

^26. Cited in Hearn, 'Examined Suspiciously', pp. 87.6, 87.9.

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