The decision of NSW vs Commonwealth of Australia, WA vs Commonwealth etc is on the austlii website. There have been referendums to modify Section 51xx to give the federal government industrial powers but they failed. The High Court decision discounts these failures in their decision.

The Corporations power is Section s51xx;

51.The Parliament shall, subject to this Constitution, have power to make laws for the peace, order, and good government of the Commonwealth with respect to: -

(xx.) Foreign corporations, and trading or financial corporations formed within the limits of the Commonwealth:

The decisions writes that the referendums to modify s51xx were in 1910, 1912 and 1926. I guess the 1926 one was the Industrial Matters referendum and the 1912 is either the 1913 Corporations or Industrial Matters. The 1911 Trade and Commerce referendum must have been the other one.

The decision contains;

In 1910, 1912 and 1926, proposals were put to referendum for amendment of both par (xx) and par (xxxv) of s 51. The amendments proposed to s 51(xx) would in each case have extended the power by authorising the Parliament to make laws with respect to the "creation, dissolution, regulation, and control" of corporations. The amendment proposed to s 51(xxxv) would have extended the federal Parliament's power, in 1910, to making laws with respect to (among other things) "[l]abour and employment, including ... [t]he wages and conditions of labour and employment in any trade industry or calling"; in 1912, to making laws with respect to "[l]abour, and employment, and unemployment"; and in 1926, by omitting from s 51(xxxv) the words "extending beyond the limits of any one State".

Those referendums look to be good explicit constitutionalism trying to expand centralised power through the constitution rather than statutory means and hoping the High Court agrees. Which is what Workchoices was. The referendums were rejected by the electorate which has been fairly consistent for Australian referendums that try to centralise power.

The decision argues that these referendums cannot be used to determine the constitutionality of the challenges to Workchoices as the questions are not the same;

There are insuperable difficulties in arguing from the failure of a proposal for constitutional amendment to any conclusion about the Constitution's meaning. First, there is a problem of equivalence. The argument must assume that the proposal which was defeated was as confined as is the question that now falls for determination. If the proposal was wider than the immediate question for decision, it is not open to conclude that a majority of those to whom the proposal was put (whether they are described as "the people of Australia", the "sovereign force" or, as in s 128, "the electors qualified to vote for the election of members of the House of Representatives") reached any view about the ambit of the (unamended) constitutional power, or that they reached any view about that part of the proposal that appears to deal with the immediate issue.

None of the proposals relied on in this matter was so confined. And the fact that the early proposals (of 1910 and 1912) were prompted by the decision in Huddart Parker does not confine those proposals to the questions that now fall for decision in the present matters.

I can understand what they mean, and why they would reserve that right, but Lionel Murphy's Doctrine of Constitutional Implication looks for the implied, rather than explicit, meanings in the constitutional , legislative practice and wider society in interpreting these decisions. The constitution is ultimately the people's, despite the Judicature having the end authority to interpret the constitution, so with the doctrine of constitutional implication I find rejecting the referendum results as a bit disingenuous.

The decision also claims that referendum's cannot be interpreted as the people's will toward the constitution;

few referendums have succeeded. It is altogether too simple to treat each of those rejections as the informed choice of electors between clearly identified constitutional alternatives. The truth of the matter is much more complex than that.

For example, party politics is of no little consequence to the outcome of any referendum proposal. And much may turn upon the way in which the proposal is put and considered in the course of public debate about it. Yet it is suggested that failure of the referendum casts light on the meaning of the Constitution.

Did they just call the Australian electorate idiots and a bunch of sheep? The failure of a referendum does cast the popular will and feeling toward the constitutional nature of the referendum; if people want it, it will pass, if they do not, it will fail.

I find this dismissal by the High Court of the popular process for constitutional reform as not possibly having any meaning or bearing on their decision as disingenous, especially when the Doctrine of Constitutional Implication is an entirely artificial one designed to enable High Court activism.

That doctrine has led to increasing centralisation of power in Canberra - non-partisan too I should add - both major parties have benefited from it. The High Court has been as anti-federalist as Parliament has. The decision argues in favour of modern interpretation of what should be explicit language, and that a referendum's rejection of additional explicit language has no bearing on modern interpretation;

Finally, is the rejection of the proposal to be taken as confirming what is and always has been the meaning of the Constitution, or is it said that it works some change of meaning? If it is the former, what exactly is the use that is being made of the failed proposal? If it is the latter, how is that done? The plaintiffs offered no answers to these questions.

I disagree with that. Referendum outcomes are the popular voice on the constitution. If the electorate rejects a constitutional amendment it has set a benchmark that must be met for those powers to become constitutional in the future. It is a conservative approach but a right and just one. For the Commonwealth to adopt those powers in the future, they should only be able to do so by constitutional referendum.

The decision also argues for separation of powers and constitutional authority on the High Court to have the final interpretation;

Constitutional construction is not so simple a process as the argument from failed referendums would have it. If, as is so often the case, a question about the meaning and operation of the Constitution is controversial, it is for this Court to determine the answer that is to be given. Chapter III, particularly s 76(i), indicates that the determination of matters arising under or involving the interpretation of the Constitution is committed to the judicial power of the Commonwealth. The phrase "or involving its [the Constitution's] interpretation" encompasses later curial disputation concerning earlier decisions respecting the Constitution[169].

Such decisions may also be followed by the passage of a proposed law for the alteration of the text of the Constitution pursuant to s 128. But the opening words of s 128, "[t]his Constitution shall not be altered except in the following manner ...", must be read with those of Ch III to which reference is made above. The constitutional text must be treated as the one instrument of federal government.

The decision sums up the past referendum's influence on the case as;

The failure of successive referendums to alter s 51(xx) and s 51(xxxv) provides no assistance in the resolution of the present matters.

I have a hard time reconciling that comment when the High Court uses implication as its guiding doctrine. We chose the technology of formalised constitutionalism of which referendums are a hard power component of change; a constitutional rejection is as valid as a passed referendum in defining constitutional law.

Yes, the judicature as the final say on the interpretation of the constitution, but constitutional law does not exist in isolation; and yes, the questions may not be the same, but if the High Court judges are prepared to go into past constitutional decisions to determine the answer, then they must be prepared to take into account what has been rejected too.

A referendum is an explicit rejection or constitutional addition that comes before the High Court in the constitutional hierarchy. It has to, a referendum is the only explicit way to modify the language of the constitution itself as the highest law in the land; Constitution -> Referendum -> High Court ...

Centralisation has been an on-going pursuit by Canberra and it has been aided by the High Court, enough that in the 1920s this decision would have had to go to referendum and in 2006 it can be pushed through statutorily.

There is no political or judicial will to stop this centralisation. At the last federal election the Democrats and Greens had formal policies to abolish the states. The Labor have it as an informal policy and John Howard had been quoted in the media with the comment that if Australia was done all over again, there would be no states.

Federalism is badly out of vogue.

cam [IANAL]

The High Court's ratification of Workchoices as constitutional was a bad decision for many reasons. One of the issues raised by Paul Keating was that it allows central control over a minimum wage through legislation alone.

Workchoices gets its legitimacy as legislation through the appeal to employers being from constitutional corporations. From the Workplace Relations Amendment:

"Australian employer" means:

(a) an employer that is a trading corporation formed within the limits of the Commonwealth (within the meaning of paragraph 51(xx) of the Constitution); or

(b) an employer that is a financial corporation formed within the limits of the Commonwealth (within the meaning of paragraph 51(xx) of the Constitution); or ...

The relevant part of the Australian Constitution is Sect 51.xx which read narrowly is:

51.The Parliament shall, subject to this Constitution, have power to make laws for the peace, order, and good government of the Commonwealth with respect to: - ...

(xx.) Foreign corporations, and trading or financial corporations formed within the limits of the Commonwealth: ...

Which may seem cut and dried, but read broadly with other heads of power in the constitution is not, as industrial relations is mentioned explicitly as well:

(xxxv.) Conciliation and arbitration for the prevention and settlement of industrial disputes extending beyond the limits of any one State:

For this reason national control of industrial relations has gone to three referendums for constitutional amendment to xxxv - all of which have failed.

Originally the corporations power was read very narrowly with a 1909 case, but since the 1970s when the High Court doctrine changed from one of federalism, to the doctrine that the judicial branch has the capability to make the constitution a 'living and breathing document', otherwise known as judicial activism, the corporations power has been one of opening the floodgates.

Because the High Court decision ignores the inter-state requirement of xxxv, and trashes the federal character of the Australian Constitution, making it national - or unitary - then it is open to all manner of centralised industrial management with legislation alone - including minimum wage.

From the Keating interview:

Let me make this clear, the Liberals decided that they wouldn't use the conciliation and arbitration power.

Under that power of the constitution you always needed a commission who tested capacity to pay and comparative wage justice. They've now used the corporations power and the High Court for the first time as validated its use. That means a Federal Government can now legislate the wage and the conditions.

and:

The safety nets now are the National Wage Case and the National Wage Case has gone because the commission has gone. But the Government can have Mr Harper and the Fair Pay Commission, but it's got no commission power it's really the Commonwealth Government. That's the point I'm making. It's not me saying it, it's the High Court saying it.

The nation-state is devoluting into the market-state. Where the nation-state used to be this heavily capitalised intensive centralised structure which would throw money to the poor and slow regions to make them catch up to the achieving regions; the market-state follows the lines of communications and is decentrsalised with innovation happening on the edges and bubbling into the center.

Workchoices is an industrial era approach to industrial relations - and focuses on issues that globalisation have largely made irrelevant. The issue for Australia is that its heavy centralisation of industrial relations is a weakness - a political and structural weakness.

Workchoices and judicial activism in striking it down? Wouldn't that have been judicial conservatism, not activism?

The Federal Government should never have gotten the power over Industrial Relations. It mostly hinged on the definition of 'constitutional corporation' along with the ignoring of the head of power (xxxv) which is an explicit grant of power that limits a broad reading of constitutional corporation.

As the dissenting argument wrote in the decision to give the Federal Government the power of industrial relations it requires a very broad reading of the heads of power in isolation, ignoring the limits the constitution places on federal industrial relations, and the ignoring of several failed referendums to give the federal government this power.

The decision to give the federal government industrial relations was activism that was based on tenuous constitutional grounds. IMO it was a terrible and erronous decision.