The Guardian June 23, 1999

For once the law's not the ass

by Anna Pha

This time it's not the law that is an ass. Last week the High Court, by a 
majority of six to one, ruled that the Constitution did not allow federal 
courts to hear state law. As a result State Governments are moving quickly 
to retrospectively secure previous decisions and pass new legislation, but 
there are some doubts as to whether such measures themselves will be 

The High Court decision throws into doubt the validity of many decisions of 
federal courts dating back to 1988, including some by the Family Law Court.

The Commonwealth law now in doubt allows federal courts to deal with 
matters that involve both state and federal laws or where the jurisdiction 
overlaps or is not clear  what is known as "cross-vesting".

The decision throws corporations law into the state courts and will create 
two strands of family law depending on a number of factors, for example, on 
whether the partners were married or in a de facto relationship.

The cross-vesting law, introduced by the former Hawke Labor Government, 
reduced both the cost and time taken for many cases.

But it is not just the practical consequences of the the High Court ruling 
that are of concern. Its political ramifications could be far more serious.

Over recent years the High Court appeared to be moving away from narrow 
technical decisions to a position where it was giving some direction in 
which the law should be moving in Australian society.

The High Court has to deal with the historical legacy of States with their 
considerable sovereign powers and a Commonwealth with its powers limited by 
the Constitution.

The Court appeared to be moving in a progressive direction, recognising 
today's realities and at times favouring more centralised powers consistent 
with Australia as a nation state.

After all Australia has developed considerably as a nation since the days 
in which its Constitution was drafted.

The Hawke/Keating Labor Government was also moving in the same direction, 
towards centralisation and uniformity across Australia. Its cross-vesting 
legislation reflected this trend.

In the environmental area, where federal jurisdiction has proved to be so 
important (see page 3), the priority given to Commonwealth powers dates 
back to the former Fraser Coalition Government of the 1970s.

The Howard Government, however, is far more backward and conservative than 
its predecessors. It has devolved Commonwealth powers to state governments 
on native title and heritage protection and is presently attempting to do 
the same with environmental protection.

The political complexion of the High Court also appears to have moved to 
the right with changes in four of its seven members in recent years  two 
of them Howard appointees.

There may be a move to amend the Constitution over this particular 
decision, not so much for political reasons, but more to avoid the 
practical consequences that will follow if the Constitution is not changed.

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