No going back

Q: What state power’s may be taken over by the federal government for exercise by itself or for delegation to their legislative nominees, such as Australian local governments? Answer: All.

Before the WorkChoices case, the answer to that question was ‘doubtful’ or ‘problematic’. An academic held the view that existing, federal direct funding programs to local government such as ‘Roads to Recovery’ may, if challenged, be held to be unconstitutional. Such doubts should now have evaporated. The High Court has given a clear answer. That is, Australian government legislative powers are unlimited in Australia. They have carte blanche to make laws.

Here is an extract from Justice Kirby's minority judgement on the implications of the (unsuccessful) challenge by states and territories to the Government's controversial workplace relations laws, ‘WorkChoices’. Justice Kirby wrote:
‘539 The States, correctly in my view, pointed to the potential of the Commonwealth's argument, if upheld, radically to reduce the application of State laws in many fields that, for more than a century, have been the subject of the States' principal governmental activities. Such fields include education, where universities, tertiary colleges and a lately expanding cohort of private schools and colleges are already, or may easily become, incorporated. Likewise, in healthcare, where hospitals (public and private), clinics, hospices, pathology providers and medical practices are, or may readily become, incorporated. Similarly, with the privatisation and out-sourcing of activities formerly conducted by State governments, departments or statutory authorities, through corporatised bodies now providing services in town planning, security and protective activities, local transport, energy, environmental protection, aged and disability services, land and water conservation, agricultural activities, corrective services, gaming and racing, sport and recreation services, fisheries and many Aboriginal activities. All of the foregoing fields of regulation might potentially be changed, in whole or in part, from their traditional place as subjects of State law and regulation, to federal legal regulation, through the propounded ambit of the corporations power.’

No going back
The WorkChoices Case is arguably the most important case for the content of constitutional power in Australia. Justice Kirby made this forecast: ‘Once a constitutional Rubicon such as this is crossed, there is rarely a going back.’

Why so? After all, surely State and territory governments could try to de-corporatise to evade the federal hold on corporations. This ‘cure’ is simply impractical. It would be dysfunctional, disruptive and very costly. It’s unlikely to be seriously pursued because it also carries the high risk of failure in any new High Court challenge to the federal government’s supreme powers under the constitution of Australia.