Constitutional choices in the work choices case, or what exactly is wrong with the reserved powers doctrine?

Melbourne University Law Review

Volumn 32, Issue 1, 2008, Pages

  Aroney, Nicholas ^a  

^a UNIVERSITY OF SYDNEY   (Australia)

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EID: 77951789523     PISSN: 00258938     EISSN: None     Source Type: Journal    
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References (356)

1. New South Wales v Commonwealth [2006] HCATrans 215 (Gleeson CJ, M G Sexton SC and Kirby J, 4 May 2006).
2. New South Wales v Commonwealth [2006] HCATrans 217 (Kirby J, W Sofronoff QC and Hayne J, 8 May 2006).
3. (2006) 229 CLR 1 ('Work Choices Case').
4. The Work Choices Act amended the Workplace Relations Act 1996 (Cth) ('Workplace Relations Acts')
5. The corporations power is contained in s 51(xx) of the Constitution: The Parliament shall, subject to this Constitution, have power to make laws for the peace, order, and good gover nment of the Commonwealth with respect to ... foreign corporations, and trading or f inancial corporations formed within the limits of the Commonwealth.
6. The industrial arbitration power is contained in s 51(xxxv) of the Constitution: The Parliament shall, subject to this Constitution, have power to make laws for the peace, order, and good gover nment of the Commonwealth with respect to ... conciliation and arbitration for the prevention and settlement of industrial disputes extending beyond the limits of any one State.
7. ABC Radio National, 'Work Choices Shipwreck', Perspective, 6 December 2006 〈http://www.abc.net.au/rn/perspective/stories/2006/1803817.htm〉. Craven continued: 'How a Court can weigh every tiny word of a Constitution without grasping the central premise that it was meant to create a genuine federation must baff le historians and psychoanalysts alike.' As Craven elsewhere put it, 'at the stroke of a pen' the High Court has made 'one of the greatest unauthorised amendments to the Constitution in its entire history': Greg Craven, 'How the High Court Failed Us', Australian Financial Review (Melbour ne), 24 November 2006, 82. For a measured criticism, see Simon Evans et al, Work Choices: The High Court Challenge (2007)
8. Ron McCallum, 'The Work Choices Case: Some Ref lections' (2007) 19 Judicial Off icers'Bulletin 29, 29. Professor McCallum argues that the Work Choices Act entirely revolutionised the federal regulation of workplace relations in Australia, transforming the f ield from one structured under a system of compulsory conciliation and arbitration to one in which industrial relations are conceptualised and regulated as a particular aspect of the law relating to trading corporations. Not all pro-market commentators wholeheartedly support the Work Choices' combination of constitutional centralism and economic liberalism. For example, the president of the H R Nicholls Society, Ray Evans, stated that his organisation would favour the Commonwealth withdrawing entirely from the f ield and allowing the states to compete with one another in providing labour market regulation:
9. see Ray Evans, Letter to the Editor, Australian Financial Review (Melbour ne), 1 August 2005, 59.
10. ABC Radio National, 'The Workchoices Case', The Law Report, 21 November 2006 〈http://www.abc.net.au/rn/lawreport/stories/2006/1791213.htm〉. In this program, Williams describes the Work Choices Case as a 'landmark' decision principally because it affirms that the Commonwealth can use the corporations power to regulate just about any f ield in which s 51(xx) corporations operate in our world today. In other words, the case opens up the potential for the Commonwealth to enter a number of diverse f ields such as education, hospitals, townplanning, water management, uranium mining and many others besides - essentially any area in which services are provided or goods and materials exchanged, so long as a trading or f inancial corporation is somehow involved.
11. 'The Workchoices Case', the Law Report, 2006, http://www.abc.net.au/rn/ lawreport/stories/2006/1791213.htm, 21 November In this program, Williams describes the Work Choices Case as a 'landmark' decision principally because it affirms that the Commonwealth can use the corporations power to regulate just about any f ield in which s 51(xx) corporations operate in our world today. In other words, the case opens up the potential for the Commonwealth to enter a number of diverse f ields such as education, hospitals, townplanning, water management, uranium mining and many others besides - essentially any area in which services are provided or goods and materials exchanged, so long as a trading or f inancial corporation is somehow involved, Ibid.
12. See also George Williams, 'Goodbye to States' Rights', The Age (Melbour ne), 15 November 2006, 17.
13. (1920) 28 CLR 129.
14. See, eg, A-G (Vic) v Commonwealth (1962) 107 CLR 529, 582 (Windeyer J);
15. Victoria v Commonwealth (1971) 122 CLR 353, 396 (Windeyer J) ('Payroll Tax Case');
16. R v Lambert; Ex parte Plummer (1980) 146 CLR 447, 470 (Murphy J);
17. Commonwealth v Tasmania (1983) 158 CLR 1, 147-8 (Mason J) ('Tasmanian Dam Case');
18. Gould v Brown (1998) 193 CLR 346, 427 (McHugh J);
19. Al-Kateb v Godwin (2004) 219 CLR 562, 589 (McHugh J).
20. In so arguing, I harbour no illusions about the likelihood of my contentions having much of an impact on the Court as it is currently constituted. The reserved powers doctrine has long been anathematised as heresy, and even the federal balance theory seems now to have been placed under interdiction. Moreover, all the indications are that they are not about to be readmitted to full communion.
21. Note that since the judgment in the Work Choices Case was handed down, the newly elected Labor Gover nment - under the leadership of Kevin Rudd - introduced its Workplace Relations Amendment (Transition to Forward with Fair ness) Bill 2008 (Cth) on 13 February 2008 as part of fulf illing its election mandate to abolish the current Work Choices scheme. It was passed by the federal Parliament on 19 March 2008, received royal assent on 20 March 2008 and will come into force six months from this date -
22. see Workplace Relations Amendment (Transition to Forward with Fair ness) Act 2008 (Cth) s 2. Under the Act, existing Australian Workplace Agreements will continue to operate until their expiration or termination. This effectively proposes a complete phase out by 2013:
23. Samantha Maiden, Libs Move Signals Fresh AWA Signup(2008) The Australian 〈http://www.theaustralian.news.com.au/story/023174805-2702,0.html>.
24. See also Australian Gover nment, Transition to Forward with Fair ness Bill Passes the Australian Parliament (19 March 2008) Australian Workplace 〈http://www.workplace.gov.au/workplace/Publications /News/ TransitiontoForwardwithFair nessBill2008passestheAustralianParliament.htm〉.
25. For an analysis, see Joellen Riley and Kathryn Peterson, Work Choices: A Guide to the 2005 Changes (2006).
26. Section 51(xxix) of the Constitution provides: The Parliament shall, subject to this Constitution, have power to make laws for the peace, order, and good gover nment of the Commonwealth with respect to ... exter nal affairs.
27. In Victoria v Commonwealth (1996) 187 CLR 416 ('Industrial Relations Act Case'), Victoria, Wester n Australia and South Australia had challenged a substantial number of the provisions of the Workplace Relations Act. However, they had conceded that s 51(xx) empowered the Commonwealth to make laws concer ning the workplace affairs of constitutional corporations: at 540 (Brennan CJ, Toohey, Gaudron, McHugh and Gummow JJ).
28. See Work Choices Case (2006) 229 CLR 1, 68-74 (Gleeson CJ, Gummow, Hayne, Heydon and Crennan JJ). However, the Commonwealth also invoked the industrial arbitration and territories powers to support particular aspects of the legislation: at 74.
29. New South Wales, Victoria, Queensland, South Australia and Wester n Australia. The Attor neys-General of Tasmania, the Norther n Territory and the Australian Capital Territory also intervened in support of the plaintiffs.
30. I rely here on the summary of argument prepared by Chris Horan, 'Summary of Counsels' Arguments' in Simon Evans et al, Work Choices: The High Court Challenge (2007) 99. See also the summary in the majority's joint judgment: Work Choices Case (2006) 229 CLR 1, 74-77
31. (Gleeson CJ, Gummow, Hayne, Heydon and Crennan JJ) and the record of argument: at 8-54.
32. See Work Choices Case (2006) 229 CLR 1, 102 (Gleeson CJ, Gummow, Hayne, Heydon and
33. Section 51(xx) of the Constitution refers to corporations 'formed',
34. and it was held in New South Wales v Commonwealth (1990) 169 CLR 482 ('Incorporation Case') that the power does not therefore extend to the incorporation of companies.
35. Work Choices Case (2006) 229 CLR 1, 16 (argument of Pamela Tate SC, Solicitor-General of Victoria).
36. Cases cited on this point included Actors and Announcers Equity Association of Australia v Fontana Films Pty Ltd (1982) 150 CLR 169, 182-3 (Gibbs CJ), 215 (Wilson J) ('Fontana Films');
37. Re Dingjan; Ex parte Wagner (1995) 183 CLR 323, 337 (Brennan J), 349 (Dawson J) ('Re Dingjan').
38. This was proposed in Fontana Films (1982) 150 CLR 169, 212 (Murphy J);
39. Tasmanian Dam Case (1983) 158 CLR 1, 179 (Murphy J);
40. Re Dingjan (1995) 183 CLR 323, 334 (Mason CJ), #8211;5 (Gaudron J), 368-9 (McHugh J);
41. Re Pacific Coal Pty Ltd; Ex parte Construction, Forestry, Mining and Energy Union (2000) 203 CLR 346, 375 (Gaudron J) ('Re Pacific Coal').
42. Sources cited included Federal Council of Australasia Act 1885 (Imp) 48 & 49 Vict, c 60, s 15(1);
43. Off icial Report of the National Australasian Convention Debates, Sydney, 3 April 1891, (James Munro, Sir Samuel Griff ith, Sir John Bray) ('Sydney National Debates');
44. Off icial Record of the National Australasian Convention Debates, Adelaide, 12 April 1897, 439 (Edmund Barton) ('Adelaide Debates');
45. Adelaide Debates, 17 April 1897, 793 (Sir George Tur ner, Edmund Barton, Isaac Isaacs, Alfred Deakin, William McMillan, Josiah Symon, Sir Joseph Abbott);
46. John Quick and Robert Randolph Garran, The Annotated Constitution of the Australian Commonwealth (1901) 604-7;
47. nd ed, 1910) 470;
48. E Hilton Young, 'The Status of Foreign Corporations and the Legislature' (Pt I) (1907) 23 Law Quarterly Review 151;
49. E Hilton Young, 'The Status of Foreign Corporations and the Legislature' (Pt II) (1907) 23 Law Quarterly Review 290.
50. [251 On these and other types of argument in constitutional adjudication, see Philip Bobbitt, Constitutional Interpretation (1991);
51. Akhil Reed Amar, 'Intratextualism' (1999) 112 Harvard Law Review 747.
52. See Airlines of New South Wales Pty Ltd v New South Wales [No 2] (1965) 113 CLR 54, 79 (Barwick CJ);
53. cf Melbour ne Corporation v Commonwealth (1947) 74 CLR 31, 66 (Rich J) ('Melbour ne Corporation').
54. Work Choices Case (2006) 229 CLR 1, 70-3 (Gleeson CJ, Gummow, Hayne, Heydon and Crennan JJ). However, for a discussion of instances where limits on one head of power have been held to limit the scope of powers in another,
55. see Part IV below, especially nn 129-135 and accompanying text.
56. For the majority's summary of the Commonwealth's submissions,
57. see Work Choices Case (2006) 229 CLR 1, 76.
58. Katherine Lindsay, The Australian Constitution in Context (1999) 67;
59. nd ed, 2005) 26.
60. R v Barger (1908) 6 CLR 41, 69 (Griff ith CJ for Griff ith CJ, Barton and O'Connor JJ).
61. st ed, 2001) 44;
62. nd ed, 1996) 235-6, 294.
63. rd ed, 2002) 296.
64. Huddart, Parker & Co Pty Ltd v Moorehead (1909) 8 CLR 330, 354 (Griff ith CJ);
65. Hanks, above n 30, 236.
66. Section 107 of the Constitution provides: Every power of the Parliament of a Colony which has become or becomes a State, shall, unless it is by this Constitution exclusively vested in the Parliament of the Commonwealth or withdrawn from the Parliament of the State, continue as at the establishment of the Commonwealth, or as at the admission or establishment of the State, as the case may be.
67. nd ed, 1998)40-1, cf 39-40.
68. See, eg, Engineers' Case (1920) 28 CLR 129, 145 (Knox CJ, Isaacs, Rich and Starke JJ).
69. (1904) 1 CLR 497.
70. (1909) 8 CLR 330. The intermediate cases in the series were R v Barger (1908) 6 CLR 41;
71. A-G (NSW) v Brewery Employes Union of New South Wales (1908) 6 CLR 469 ('Union Label Case').
72. Under the immunity of instrumentalities doctrine (also known as the doctrine of intergover nmental immunities), the Commonwealth and its instrumentalities were declared to be immune from any law passed by a state - and, conversely, the states and their instrumentalities were immune from laws passed by the Commonwealth - wherever such laws would in some way 'fetter, control, or interfere with, the free exercise of the legislative or executive power' of the Commonwealth or the states, respectively: D'Emden v Pedder (1904) 1 CLR 91, 111 (Griff ith CJ).
73. D'Emden v Pedder, 1904, 111, 1 CLR 91, (Griff ith CJ), Ibid.
74. (1919) 26 CLR 508. Some of the intermediate immunity of instrumentalities cases were: Municipal Council of Sydney v Commonwealth (1904) 1 CLR 208 ('Municipal Rates Case');
75. Deakin v Webb (1904) 1 CLR 585;
76. Commonwealth v New South Wales (1906) 3 CLR 807;
77. Federated Amalgamated Gover nmental Railway and Tramway Service Association v New South Wales Railway Traffic Employes Association (1906) 4 CLR 488 ('Railway Servants' Case');
78. Baxter v Commissioners of Taxation (NSW) (1907) 4 CLR 1087 ('Baxter);
79. A-G (NSW) v Collector of Customs (NSW) (1908) 5 CLR 818;
80. Federated Engine-Drivers and Firemen's Association of Australasia v Broken Hill Pty Co Ltd (1912) 16 CLR 245.
81. Railway Servants' Case (1906) 4 CLR 488, 534 (Griff ith CJ for Griff ith CJ, Barton and O'Connor JJ);
82. Baxter (1907) 4 CLR 1087, 1104, 1121, 1126 (Griff ith CJ for Griff ith CJ, Barton and O'Connor JJ).
83. For a fuller discussion, see Nicholas Aroney, ' " A Commonwealth of Commonwealths": Late Nineteenth-Century Conceptions of Federalism and Their Impact on Australian Federation, 1890-1901' (2002) 23 Jour nal of Legal History 253.
84. nd ed, 1889) 12-15, 17-22;
85. th ed, 1897) 137-8, 139.
86. See Nicholas Aroney, 'Imagining a Federal Commonwealth: Australian Conceptions of Federalism, 1890-1901' (2002) 30 Federal Law Review 265.
87. For a fuller discussion, see Nicholas Aroney, 'Formation, Representation and Amendment in Federal Constitutions' (2006) 54 American Jour nal of Comparative Law 277.
88. See Nicholas Aroney, The Constitution of a Federal Commonwealth: The Making and Meaning of the Australian Constitution (2008, forthcoming).
89. Off icial Report of the National Australasian Convention Debates, Melbour ne, 10 February 1890, 10 (Sir Samuel Griff ith) ('we have become practically almost sovereign states, a great deal more sovereign states, though not in name, than the separate states of America'). For attempts by Henry Bour ne Higgins to deny this premise or avoid its implications,
90. see Official Record of the Debates of the Australasian Federal Convention, Sydney, 9 September 1897, 259-60 (Henry Bour ne Higgins);
91. Adelaide Debates, 15 April 1897, above n 24, 665-666 (Henry Bour ne Higgins).
92. A point especially emphasised by Griffith CJ in Baxter (1907) 4 CLR 1087, 1111-12.
93. See also Peterswald v Bartley (1904) 1CLR 497, 509 (Griff ith CJ).
94. Constitution ss 106-107, 109. Great care was taken in def ining the legislative powers of the Commonwealth, even though with the benef it of hindsight it is possible to observe that the High Court, following a method of interpretation quite out of tune with the understandings and expectations of the framers, has construed those powers in ways that the framers could not have anticipated and most would not have endorsed.
95. See R v Barger (1908) 6 CLR 41, 67 (Griff ith CJ, Barton and O'Connor JJ).
96. See Constitution Act 1867 (Imp) 30 & 31 Vict, c 3, ss 91-92, reprinted in RSC 1985, App II, No 5.
97. Deakin v Webb (1904) 1 CLR 585, 605-6 (Griff ith CJ).
98. In George Winterton, 'The High Court and Federalism: A Centenary Evaluation' in Peter Cane (ed), Centenary Essays for the High Court of Australia (2004) 197, 204 (citations omitted), Winterton argues that the decision not to follow the Canadian model in this respect 'has tur ned out to be a serious misjudgement for which the High Court can scarcely be blamed.'
99. Cf Christopher D Gilbert, Australian and Canadian Federalism 1867-1984: A Study of Judicial Techniques (1986) for the view that Canadian doctrine has also been shaped by the unique social and political conditions of that country.
100. Griff ith CJ emphasised that the Court should look to the general scheme of the Constitution as a whole in determining what powers and capacities were intended to be conferred upon the Commonwealth and withdrawn from the states:
101. see Peterswald v Bartley (1904) 1 CLR 497, 507. For Griff ith's own view of federalism,
102. see Nicholas Aroney, 'Sir Samuel Griff ith's Vision of Australian Federalism' in Michael White and Aladin Rahemtula (eds), Sir Samuel Walker Griff ith: The Law and the Constitution (2002) 179.
103. Tasmania v Commonwealth (1904) 1 CLR 329, 333 (Griff ith CJ, during argument).
104. See, eg, Tasmania v Commonwealth , 345-358,(Barton J)ibid 345-358 (Barton J).
105. Tasmania v Commonwealth, 359, (O'Connor J), Ibid 359 (O'Connor J).
106. See also at 350-5 (Barton J).
107. See further A-G (Cth) ex rei McKinlay v Commonwealth (1975) 135 CLR 1, 17 (Barwick CJ). For relatively more recent examples of admitting evidence concer ning the contemporary meaning of language used in the Constitution,
108. see Cole v Whitfield (1988) 165 CLR 360, 385 (Mason CJ, Wilson, Brennan, Deane, Dawson, Toohey and Gaudron JJ);
109. Re Federated Storemen and Packers Union of Australia; Ex parte Wooldumpers (Victoria) Ltd (1989) 166 CLR 311, 329-30 (Deane J). The High Court has also accepted that the history of a provision of the Constitution may be referred to when determining 'the nature and objectives of the movement towards federation from which the compact of the Constitution f inally emerged':
110. Cole v Whitf ield (1988) 165 CLR 360, 385
111. (Mason CJ, Wilson, Brennan, Deane, Dawson, Toohey and Gaudron JJ). For a discussion of historical evidence, see Jeffrey Goldsworthy, 'Originalism in Constitutional Interpretation'
112. (1997) 25 Federal Law Review 1, 13-15;
113. James A Thomson, 'Constitutional Interpretation: History and the High Court - A Bibliographical Survey' (1982) 5 University of New South Wales Law Jour nal 309, 310.
114. See Aroney, above n 46, chs 7-11.
115. Ibid.
116. Ibid ch 6.
117. The respective judgments of Isaacs and Higgins JJ in Huddart Parker (1909) 8 CLR 330, 381-408 (Isaacs J), 408-419 (Higgins J) amply illustrate this difference between the two judges.
118. See, eg, Sydney National Debates, 3 April 1891, above n 24, 699 (Andrew Inglis Clark);
119. Off icial Record of the Debates of the Australasian Federal Convention, Melbour ne, 3 February 1898, 502-4 (Edmund Barton), 504-5 (Josiah Symon) ('Melbour ne National Debates');
120. Melbour ne National Debates, 7 February 1898, 596-7, 600 (Edmund Barton and Isaac Isaacs);
121. Melbour ne National Debates, 16 February 1898, 1008-1010 (Edmund Barton and Richard O'Connor).
122. In relation to the corporations power in particular, see Huddart Parker (1909) 8 CLR 330, 354 (GriffIth CJ), 363 (Barton J), 369 (O'Connor J).
123. On the signif icance and meaning of the power, see Sydney National Debates, 31 March 1891, above n 24, 524 (Sir Samuel GriffIth);
124. Sydney National Debates, 1 April 1891, above n 24, 541 (Henry Wrixon);
125. Sydney National Debates, 3 April 1891, above n 24, 662-70 (Sir Samuel Griffith, Andrew Inglis Clark, Sir John Downer, Henry Wrixon, Thomas Playford, Sir Harry Atkin Barton);
126. Adelaide Debates, 17 April 1897, above n 24, 830 (Alfred Deakin);
127. Adelaide Debates, 21 son);
128. Adelaide Debates, 31 March 1897, above n 24, 371 (Edmund April 1897, above n 24, 1108 (Edmund Barton);
129. Adelaide Debates, 22 April 1897, above n 24, 1142 (Isaac Isaacs).
130. Perhaps the clearest statement of this reasoning appears in the Union Label Case (1908) 6 CLR 469, 502-503 (GriffIth CJ).
131. While there are a number of rather categorical statements which, read out of context, seem to suggest an absolute prohibition on federal legislation regulating intrastate trade and commerce, the qualifying language of O'Connor J in Huddart Parker (1909) 8 CLR 330, 370 is typical:
132. 'The grant of power to the Parliament must thus be so construed as to be consistent as far as possible with the exclusive control over its inter nal trade and commerce vested in the State'(emphasis added).
133. See also Barton J, who thought the critical question was whether the corporations power constituted an exception to what he called the 'otherwise exclusive reservation to the States of the power [to regulate domestic trade]', but required that any such exception be established 'in clear and unambiguous terms': at 363 (emphasis added).
134. See also R v Barger (1908) 6 CLR 41, 69 (GriffIth CJ, Barton and O'Connor JJ);
135. Union Label Case (1908) 6 CLR 469, 502-503 (GriffIth CJ). The latter case contains a strongly absolutist statement, followed by an interpretive qualif ication at 503 (citations omitted): the power to legislate as to inter nal trade and commerce is reserved to the State by the operation of sec 107, to the exclusion of the Commonwealth, and this as fully and effectively as if sec 51(i) had contained negative words prohibiting the exercise of such powers by the Commonwealth Parliament, except only ... 'as a necessary and proper means for carrying into execution some other power expressly granted.'
136. This is a point that is particularly clear in R v Barger (1908) 6 CLR 41, 77 (GriffIth CJ, Barton and O'Connor JJ), where the Court was concer ned to prevent the taxation power being used by the Commonwealth to 'assume and exercise complete control over every act of every person in the Commonwealth by the simple method of imposing a pecuniary liability on every one who did not conform to specif ied rules of action, and calling that obligation a tax'.
137. Huddart Parker (1909) 8 CLR 330, 353-4 (GriffIth CJ), 364 (Barton J).
138. CLR Ibid 350 (GriffIth CJ).
139. CLR Ibid 350 (GriffIth CJ) Ibid,
140. citing the majority's judgment in R v Barger (1908) 6 CLR 41, 72 (GriffIth CJ, Barton and O'Connor JJ).
141. See further ibid 350-2 (GriffIth CJ).
142. In fact, when read against ss 4 and 7, ss 5 and 8 attempted to avoid the limitation of power in s 51 (xx) - ss 4 and 7, relying on s 51(i), applied only to interstate and inter national trade, whereas ss 5 and 8 acknowledged the limits on the power in s 51(i) and relied on s 51(xx) to avoid that limitation
143. : ibid 360-361 (Barton J).
144. Huddart Parker (1909) 8 CLR 330, 352.
145. Ibid 354.
146. See also ibid 365-6 (Barton J):
147. 'Such an expedient will not avail to pierce the shield which the Constitution throws round the inter nal trade of the States ... [for] the dog can wag the tail, but it by no means follows that the tail can wag the dog.'
148. Ibid 409.
149. Ibid 409-410
150. P H Lane, The Australian Federal System (1979) 160.
151. Huddart Parker (1909) 8 CLR 330, 409-410
152. Ibid 348.
153. Nor did he favour, as a matter of constitutional design, the limited terms in which the Commonwealth's power over industrial matters had been def ined in s 51(xxxv) of the Constitution: see Commonwealth, Parliamentary Debates, House of Representatives, 12 August 1903, 3467 (Henry Bour ne Higgins).
154. The matter arose out of an industrial dispute between the Amalgamated Society of Engineers, a trade union, and some 844 employers throughout Australia, including three state gover nment instrumentalities of Wester n Australia. The question was whether the Commonwealth under its industrial arbitration power (Constitution s 51(xxxv)) has the ability to make laws that are binding on state instrumentalities. The Court decided that the Commonwealth did have that legislative power, overtur ning the immunity of state instrumentalities from federal laws and, by implication, radically undermining the approach to interpreting the Constitution that the High Court had followed for 17 years previously.
155. Sir Robert Menzies, Central Power in the Australian Commonwealth: An Examination of the Growth of Commonwealth Power in the Australian Federation (1967) 30 ('a landmark in Australian constitutional interpretation');
156. th ed, 1997) 8 ('it probably remains the most important case in Australian constitutional law, at any rate, from the point of view of principles of general interpretation'). Cf Melbour ne Corporation
157. (1947) 74 CLR 31, 78 (Dixon J) ('stripped of embellishment and reduced to the form of a legal proposition', the proposition established by the Engineers' Case is simply to assert the 'prima-facie rule ... that a power to legislate with respect to a given subject enables the Parliament to make laws which, upon that subject, affect the operations of the States and their agencies').
158. See also Leslie Zines, 'Changing Attitudes to Federalism and Its Purpose' in Robert French, Geoffrey Lindell and Cheryl Saunders (eds), Ref lections on the Australian Constitution (2003) 86, 88.
159. See, eg, George Williams, 'Engineers Is Dead, Long Live the Engineers!' (1995) 17 Sydney Law Review 62; Michael Coper and George Williams (eds), How Many Cheers for Engineers? (1997).
160. See the references in Part V below.
161. Engineers' Case (1920) 28 CLR 129, 148-50 (Knox CJ, Isaacs, Rich and Starke JJ). Delivered by Isaacs J, the Engineers'joint judgment set out an approach to interpretation that Isaacs J had developed in a series of dissenting judgments in previous cases. In relation to Isaacs J's earlier rejection of the reserved powers doctrine,
162. see R v Barger (1908) 6 CLR 41, 81-111;
163. Huddart Parker (1909) 8 CLR 330, 381-408.
164. Engineers' Case (1920) 28 CLR 129, 148-54 (Knox CJ, Isaacs, Rich and Starke JJ), 161-2 (Higgins J).
165. See also Deakin v Webb (1904) 1 CLR 585, 596-7 (Isaacs KC, during argument);
166. Webb v Outtrim (1906) 4 CLR 356. The contrast between the pre and post-Engineers' approaches can be overstated. Before the Engineers' Case, the High Court had also stated that the Constitution is to be interpreted according to the received principles of statutory interpretation. The difference between the two approaches lay rather in the way that these principles were applied and, more importantly, in different opinions concer ning the fundamental nature and purposes of the Constitution.
167. Engineers' Case (1920) 28 CLR 129, 146-8 (Knox CJ, Isaacs, Rich and Starke JJ). What exactly this amounted to, and how responsible gover nment was precisely relevant to the question at hand, was not made clear in the joint judgment. For discussion of this,
168. see Stephen Gageler, 'Foundations of Australian Federalism and the Role of Judicial Review' (1987) 17 Federal Law Review 162, 181-195
169. Engineers' Case (1920) 28 CLR 129, 142, 148-149 (Knox CJ, Isaacs, Rich and Starke JJ).
170. The Court maintained that the grant of legislative power to the Commonwealth within its jurisdiction is 'as plenary and as ample' as the powers of the British Parliament in its sovereignty could bestow: ibid 153,
171. citing Hodge v The Queen (1883) 9 App Cas 117, 132. The Court also pointed out that the 'possible abuse of powers is no reason in British law for limiting the natural force of the language creating them': at 151.
172. Engineers' Case (1920) 28 CLR 129, 142 (Knox CJ, Isaacs, Rich and Starke JJ).
173. In Huddart Parker (1909) 8 CLR 330, 388, Isaacs J had aff irmed that the Court ought to be guided solely by the language of the Constitution, rather than 'wander [ing] at large upon a sea of speculation searching for a suitable intent by the misty and uncertain light of what is sometimes called the spirit of the document' based on the subjective 'preconceptions of the individual observer.' In order to secure 'certainty' or 'stability' in the Constitution, he continued, the Court must adhere to the language of the Constitution and ensure that 'fair and full effect [is] given to the words employed, construed according to the recognized British rules of interpretation'.
174. Engineers' Case (1920) 28 CLR 129,155 (Knox CJ, Isaacs, Rich and Starke JJ).
175. Ibid 156-60 (Knox CJ, Isaacs, Rich and Starke JJ). While fundamental to the High Court's later decision in
176. Commonwealth v Cigamatic Pty Ltd (in liq) (1962) 108 CLR 372 ('Cigamatic'), this was a dubious inference quite inconsistent with the Engineers' Case's supposed 'textual literalism' because the nearest reference to anything resembling federal 'supremacy' in the Constitu- Hon is s 109, which provides that in the case of inconsistency between federal and state laws the federal law will 'prevail'. Even then, s 109 is concer ned only with the 'supremacy' of validly enacted federal laws over validly enacted state laws. By contrast, the immunity of instrumentali ties doctrine is concer ned with the prior and distinct question of whether federal laws are validly enacted or can have a valid operation in respect of the executive gover nments of the states.
177. See Engineers' Case (1920) 28 CLR 129, 155 (Knox CJ, Isaacs, Rich and Starke JJ), where the implied prohibition doctrine (another name for the reserved powers doctrine) was explicitly rejected.
178. Ibid 154.
179. As Higgins J had put it in Huddart Parker (1909) 8 CLR 330, 415: the powers left to the states cannot be determined 'until the utmost limits of all the powers conferred on [the Commonwealth] Parliament by sec 51 have been ascertained.'
180. R v Barger (1908) 6 CLR 41, 83-5 (Isaacs J), 113 (Higgins J).
181. Ibid 84.
182. Huddart Parker (1909) 8 CLR 330, 391 (emphasis in original).
183. T C Brennan, Interpreting the Constitution: A Politico-Legal Essay (1935);
184. John Latham, 'Interpretation of the Constitution' in R Else-Mitchell (ed), Essays on the Australian Constitution (1952) 1, 33;
185. Geoffrey Sawer, Australian Federalism in the Courts (1967) 197-201; Andrew W Fraser, The Spirit of the Laws: Republicanism and the Unfinished Project of Moder nity
186. See Engineers' Case (1920) 28 CLR 129, 135 (arguments of Sir Edward Mitchell and John Latham for Victoria), 142 (Knox CJ, Isaacs, Rich and Starke JJ).
187. Work Choices Case (2006) 229 CLR 1, 87. See further criticism at 121.
188. Ibid 104, 112.
189. Ibid 87, where the majority asked how activities such as an offer of shares to existing shareholders, raising capital through a public offering of shares and borrowing from a bank were to be classif ied. The first certainly appears to be internal, and the third external, but what of the second? The majority presented the diff iculty inherent in classifying such an activity as a reason to reject the internal-external distinction.
190. Ibid 87-8, where examples of its application to choice of law questions relating to corporations are discussed.
191. The majority cited the following cases in its discussion: Bateman v Service (1881) 6 App Cas 386;
192. Chaff and Hay Acquisition Committee v J A Hemphill & Sons Pty Ltd (1947) 74 CLR 375.
193. Work Choices Case (2006) 229 CLR 1, 88.
194. Ibid 89.
195. Work Choices Case 2006 229 Ibid.
196. Work Choices Case 2006 229 Ibid.
197. Work Choices Case 2006 229 Ibid 104.
198. Ibid 112.
199. This is the case whether the relevant activities are those described in the corporation's constitution or those actually engaged in by the corporation. But compare the different approaches in R v Judges of the Federal Court of Australia;
200. Ex parte Wester n Australian National Football League (Inc) (1979) 143 CLR 190, 208-11 (Barwick CJ), 213 (Gibbs J), 217-21 (Stephen J), 232-7 (Mason J), 237 (Jacobs J), 238-40 (Murphy J), 240-1 (Aickin J);
201. State Superannuation
202. Board v Trade Practices Commission (1982) 150 CLR 282, 294-6 (Gibbs CJ and Wilson J),303-6 (Mason, Murphy and Deane JJ);
203. Fencott v Muller (1983) 152 CLR 570, 586-90 (Gibbs CJ), 600-602 (Mason, Murphy, Brennan and Deane JJ). In applying the object of command test, these
204. Thus, the present state of authority on s 92 seems to accept the application of different tests in relation to freedom of interstate trade and commerce on one hand, and freedom of interstate intercourse on the other. If different treatment produces no 'awkwardness' under s 92, why does it under s 51(xx)?: see Cole v Whitfield (1988) 165 CLR 360, 393-4 (Mason CJ, Wilson, Brennan, Deane, Dawson, Toohey and Gaudron JJ);
205. Nationwide News Pty Ltd v Wills (1992) 177 CLR 1, 53-61 (Brennan J), 81-4 (Deane and Toohey JJ);
206. Australian Capital Television Pty Ltd v Commonwealth (1992) 177 CLR 106,191-6 (Dawson J);
207. Cunliffe v Commonwealth( 1994) 182 CLR 272, 366-367 (Dawson J).
208. Work Choices Case (2006) 229 CLR 1,141 (Gleeson CJ, Gummow, Hayne, Heydon and Crennan JJ).
209. Ibid 104, 115, 121, 139, 141.
210. Ibid 112.
211. As Zines in The High Court and the Constitution, above n 80, 93 suggests: 'the language of the provision, in itself, provides no conclusive answer to these conflicting opinions.'
212. At several points in its judgment the majority identifies the notion of 'federal balance' in the plaintiffs' arguments: Work Choices Case (2006) 229 CLR 1, 73, 116, 118, 120.
213. Ibid 120. The onus was upon the plaintiffs to answer that question but, according to the majority, they entirely failed to do so.
214. See ibid 71-74
215. Ibid 122.
216. See ibid 112-113
217. Notice the absence of inverted commas around the words 'object of command' in the following passage from the joint judgment (ibid 117):
218. 'Each of the arguments advanced by the plaintiffs proffered a form of limit on the reach of s 51(xx): only "external" relationships, "something more" than object of command, "distinctive character" or "discriminatory operation".'
219. As the majority admitted, much depended upon the 'starting point' of the analysis: ibid 118-19.
220. Notably, while the majority presented their position as one founded upon the text, they acknowledged at 119 the famous observation of Windeyer J in the Payroll Tax Case (1971) 122 CLR 353 , 397 that the decision in the Engineers' Case was made not simply on the basis of some neutral reading of the text alone but 'in response to changing circumstances'.
221. These changing circumstances included an emerging 'sense of national identity': ibid 119.
222. Work Choices Case (2006) 229 CLR 1,102.
223. (1909) 8 CLR 330.
224. (1971) 124 CLR 468.
225. (1982) 150 CLR 169.
226. (1983) 158 CLR 1.
227. See Work Choices Case (2006) 229 CLR 1,105,106 (discussing the Bank Nationalisation Case (1948) 76 CLR 1), 107-8 (discussing the Concrete Pipes Case (1971) 124 CLR 468), 111 (discussing Fontana Films (1982) 150 CLR 169), 111 (discussing the Tasmanian Dam Case (1983) 158 CLR 1).
228. See Work Choices Case (2006) 229 CLR 1,113 (discussing Re Dingjan (1995) 183 CLR 323).
229. See Work Choices Case (2006) 229 CLR 1,114-15,
230. where the majority discusses Gaudron J's reasoning in Re Dingjan (1995) 183 CLR 323, 365
231. and quotes Gaudron J in Re Pacific Coal (2000) 203 CLR 346, 375.
232. Gaudron J's reasoning in Re Pacific Coal is also quoted by the majority at 121-2.
233. Cf Work Choices Case (2006) 229 CLR 1, 206-7 (Kirby J), 366 (Callinan J).
234. See Part III above. The issue is discussed in the joint judgment: Work Choices Case (2006) 229 CLR 1, 123-124
235. Work Choices Case (2006) 229 CLR 1,127,
236. citing Bourke v State Bank of New South Wales (1990) 170 CLR 276, 285 (Mason CJ, Brennan, Deane, Dawson, Toohey, Gaudron and McHugh JJ).
237. Work Choices Case (2006) 229 CLR 1,127-8. As the majority explained, s 51(xxxv) 'contains within it, and not as an exception or reservation upon what otherwise would be its scope, the element of interstate disputation'. The somewhat ambiguous reference to the element of interstate disputation is possibly too terse, as it is not only the requirement of a dispute extending beyond the limits of any one state that is said to constitute an important restriction contained in s 51(XXXV) but also the requirement that the dispute be resolved by processes of conciliation and arbitration.
238. Work Choices Case (2006) 229 CLR 1, 123-4,
239. quoting Schmidt (1961) 105 CLR 361, 371-372 (Dixon CJ).
240. Work Choices Case (2006) 229 CLR 1, 71-72
241. Ibid 124-134
242. Julius Stone, Human Law and Human Justice (1965) 241-245
243. See below n 191 and accompanying text. In the Work Choices Case (2006) 229 CLR 1,131-134, the joint judgment discussed certain limited aspects of the convention debates with a view to underscoring the undetermined nature of the idea of industrial conciliation and arbitration.
244. Grace Brothers Ry Ltd v Commonwealth (1946) 72 CLR 269, 290 (Dixon J);
245. Mutual Pools & Staff Pty Ltd v Commonwealth (1994) 179 CLR 155, 219-20 (McHugh J).
246. Both of these cases were cited with approval in Airservices Australia v Canadian Airlines Inter national Ltd (2000) 202 CLR 133, 250, 252 (McHugh J), 295-6 (Gummow J), 304, 311 (Callinan J).
247. See Rosalind Dixon, 'Overriding Guarantee of Just Terms or Supplementary Source of Power?: Rethinkings 51(xxxi) of the Constitution' (2005) 27 Sydney Law Review 639, 655-657
248. See Part V(D) below.
249. Work Choices Case (2006) 229 CLR 1, 124-125
250. See ibid 125-126, discussing ss 51(vi) (the defence power) and 119 (the protection of the states from invasion and violence).
251. See Sydney National Debates, 3 April 1891, above n 24, 688-9 (Charles Cameron Kingston, Sir Samuel Griff ith);
252. Sydney National Debates, 6 April 1891, above n 24, 780-5 (Charles Cameron Kingston, Sir Samuel Griff ith, Alfred Deakin, Duncan Gillies, Thomas Playford, George Dibbs);
253. Adelaide Debates, 17 April 1897, above n 24, 782-93 (Graham Higgins, Charles Cameron Kingston, Sir George Tur ner, Edward McMillan, Sir John Downer, James Howe, Joseph Car ruthers, Alfred Deakin, Simon Fraser, Josiah Symon, Ber nhard Wise, Sir Edward Braddon, Edmund Barton);
254. Off icial Record of the Debates of the Australasian Federal Convention, Melbour ne, 25-7 January 1898,180-215 (Graham Higgins, Edward McMillan, Sir John Downer, Charles Cameron Kingston, Patrick Glynn, Edmund Barton, John Quick, Sir William Zeal, Isaac Isaacs, William Lyne, John Cockbur n, Alfred Deakin, Josiah Symon, Henry Dobson, Bernhard Wise, Sir Walter James, Sir Joseph Abbott, William Trenwith, Richard O'Connor, James Howe, Frederick Holder, Alexander Peacock, George Leake, George Reid, Sir John Forrest, Sir George Turner, Sir Edward Braddon).
255. Work Choices Case (2006) 229 CLR 1, 301-305
256. Ibid 71 (Gleeson CJ, Gummow, Hayne, Heydon and Crennan JJ).
257. Ibid 308.
258. Ibid 301-303
259. Ibid 303 (citations omitted).
260. Ibid 304.
261. Callinan J cited Gummow J in SGH Ltd v Federal Commissioner of Taxation (2002) 210 CLR
262. Questions of construction of the Constitution are not to be answered by the adoption and application of any particular, all-embracing and revelatory theory or doctrine of interpretation. Nor are they answered by the resolution of a perceived conflict between rival theories, with the placing of the victorious theory upon a high ground occupied by the moder n, the enlightened and the elect.
263. Work Choices Case (2006) 229 CLR 1, 272, 350.
264. Ibid 369.
265. Ibid 308.
266. Ibid 305.
267. Ibid 307.
268. Ibid 307-308
269. Ibid 272.
270. Among these qualifications, Callinan J pointed in particular to the reasoning in Melbourne Corporation and Austin v Commonwealth. One of the weakest aspects of Callinan J's judgment is the argument that these cases call for a narrow reading of the scope of federal heads of power: at 362-3, 369, 374. It is true that both cases are generally concer ned with the balance of power between the Commonwealth and the states, and that they involve an important qualification on the reasoning in the Engineers' Case. However, the reasoning of Latham CJ aside, those cases are limited to the existence and continuing functioning of the states as independent governments and do not extend to any question about their essential legislative powers.
271. Work Choices Case (2006) 229 CLR 1, 335.
272. See ibid 318-319
273. Ibid 316,
274. citing: R v Public Vehicles Licensing Appeal Tribunal of Tasmania; Ex parte Australian National Airways Pty Ltd (1964) 113 CLR 207, 225-6 (Dixon CJ, Kitto, Taylor, Menzies, Windeyer and Owen JJ);
275. New South Wales v Commonwealth (1975) 135 CLR 337, 470-1 (Mason J) ('Seas and Submerged Lands Case');
276. Tasmanian Dam Case (1983) 158 CLR 1,127-8 (Mason J);
277. Polyukhovich v Commonwealth (1991) 172 CLR 501, 528 (Mason CJ);
278. Grain Pool of Wester n Australia v Commonwealth (2000) 202 CLR 479, 492 (Gleeson CJ, Gaudron, McHugh, Gummow, Hayne and Callinan JJ).
279. Work Choices Case (2006) 229 CLR 1, 316,
280. citing: James v Commonwealth (1936) 55 CLR 1, 43 (Lord Wright);
281. R v Kirby; Ex parte Boilermakers' Society of Australia (1956) 94 CLR 254, 278 (Dixon CJ, McTier nan, Fullagar and Kitto JJ) ('Boilermakers' Case');
282. Concrete Pipes Case (1971) 124 CLR 468, 490 (Barwick CJ);
283. Koowarta v Bjelke-Petersen (1982) 153 CLR 168, 223-224 (Mason J).
284. (1908) 6 CLR 309, 367-8 (O'Connor J), cited in Work Choices Case (2006) 229 CLR 1, 317.
285. Work Choices Case (2006) 229 CLR 1, 317,
286. citing Jumbunna Coal Mine (1908) 6 CLR 309, 367-368 (O'Connor J).
287. Work Choices Case (2006) 229 CLR 1, 333.
288. Ibid 73 (Gleeson CJ, Gummow, Hayne, Heydon and Crennan JJ).
289. Ibid 317-8 (Callinan J),
290. citing Huddart Parker (1909) 8 CLR 330, 369.
291. See Work Choices Case (2006) 229 CLR 1, 321.
292. Ibid 322.
293. Ibid 328.
294. Callinan J considered that one of the fundamental objectives of the Constitution is the preservation and maintenance not only of the states in their bare existence, but also of their powers. This contradicted the lesson the majority sought to derive from Dixon J's observation in Melbourne Corporation (1947) 74 CLR 31, 82 that the existence of the states is conceptually separable from their powers:
295. ibid 120 (Gleeson CJ, Gummow, Hayne, Heydon and Crennan JJ).
296. See also ibid 322-30 (Callinan J),
297. citing South Australia v Commonwealth (1942) 65 CLR 373,442 (Starke J);
298. R v Commonwealth Court of Conciliation and Arbitration; Ex parte Victoria (1942) 66 CLR 488, 515 (Starke J);
299. Melbour ne Corporation (1947) 74 CLR 31, 66 (Rich J), 70 (Starke J), 78-9, 82 (Dixon J), 99 (Williams J);
300. Payroll Tax Case (1971) 122 CLR 353, 424-5 (Gibbs J);
301. Queensland Electricity Commission v Commonwealth (1985) 159 CLR 192, 205-6 (Gibbs CJ), 217 (Mason J), 222 (Wilson J), 248 (Deane J), 260 (Dawson J);
302. Austin v Commonwealth (2003) 215 CLR 185, 217 (Gleeson CJ), 249 (Gaudron, Gummow and Hayne JJ), 281-2 (McHugh J), 301 (Kirby J);
303. Boilermakers' Case (1956) 94 CLR 254, 267, 275 (Dixon CJ, McTier nan, Fullagar and Kitto JJ).
304. Work Choices Case (2006) 229 CLR 1, 332. Callinan J explains his conception of this term at 332-333
305. Ibid 333.
306. Ibid 385.
307. Ibid 384.
308. Ibid 344 (emphasis added).
309. Callinan J also stated that there are three categories of power to be kept in mind - exclusive Commonwealth power, concurrent Commonwealth and state power and exclusive state power:
310. ibid 326.
311. The claim that there is such a thing as exclusive state power might suggest that the exclusive powers of the states have a def inite content. However, his Honour just as clearly accepted the distinction articulated by Isaacs J in Huddart Parker between 'residual powers beyond Commonwealth power' and 'reserved powers': at 369-70,
312. citing Huddart Parker (1909) 8 CLR 330, 394-396 (Isaacs J). To speak of residual powers beyond Commonwealth power is simply to draw an inference from the proposition that there are limits to the scope of federal power and that beyond those limits lie the residual powers of the states, a line of reasoning that is entirely consistent with an interpretive conception of federal balance and reserved powers.
313. Work Choices Case (2006) 229 CLR 1, 275-279
314. Ibid 279-284
315. Ibid 284-300. See the contrary view of the majority: at 99-101.
316. Ibid 333-334
317. Ibid 336-41, discussing Constitution ss 51(ii), (iii), (xiii), (xiv), (xxxiv).
318. Work Choices Case (2006) 229 CLR 1, 338-41. At 339,
319. Callinan J quotes Latham CJ in the Bank Nationalisation Case (1948) 76 CLR 1,184-185:
320. no 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.
321. Work Choices Case (2006) 229 CLR 1, 350. See also the discussion at 344.
322. Ibid 353.
323. Ibid 355-358
324. Ibid 358. Callinan J's survey of cases follows: at 358-375
325. Ibid 155-159 (Gleeson CJ, Gummow, Hayne, Heydon and Crennan JJ), 196 (Kirby J).
326. Ibid 238 (Kirby J). Callinan J agreed: at 383.
327. Ibid 384-385
328. Ibid 203.
329. Ibid 198-9, 223, 226-7.
330. The submissions of the plaintiffs were presented as being in accord with established precedents and approaches to interpretation as established in the Engineers' Case, and certainly not premised on reserved powers reasoning.
331. According to Kirby J, the 'extremely wide' reading of the corporations power proposed by the Commonwealth presented an 'extraordinary zenith of the federal constitutional power' and a 'radical change in constitutional doctrine', with 'profound consequences' for the 'residual' powers of the states and a 'dysfunctional' outcome: see ibid 183,192-3, 225.
332. Ibid 198-199, 201.
333. Ibid 215 (Kirby J).
334. Ibid 189.
335. Ibid 229,
336. citing Ron McCallum, 'The Australian Constitution and the Shaping of Our Federal and State Labour Laws' (2005) 10 Deakin Law Review 460, 467-469
337. Kirby J went to some trouble to recount the long line of cases on the industrial arbitration power in which it had been assumed that the limitations written into that power meant that the Commonwealth could not legislate at large in the f ield of industrial relations: see Work Choices Case (2006) 229 CLR 1,183-189 However, on his own principles these considerations could not be decisive.
338. Ibid 243.
339. Kirby J. Work Choices Case 2006 229 Ibid.
340. Ibid 201.
341. Ibid 244-245
342. Ibid 193-4. See also at 201-2, 205-208
343. Ibid 207-222
344. Ibid 184.
345. Ibid 185. See also at 244.
346. Ibid 190.
347. Ibid, citing McCallum, above n 242.
348. Work Choices Case (2006) 229 CLR 1, 244,
349. quoting Blackadder v Ramsey Butchering Services Pty Ltd (2005) 221CLR 539, 549 (Kirby J).
350. His Honour pointed out that just as the Court has been 'rightly' vigilant to defend the rights of property owners under s 51(xxxi) of the Constitution, it ought also to be vigilant in defending the rights of employees under s 51(xxxv):
351. Work Choices Case (2006) 229 CLR 1, 222.
352. Work Choices Case (2006) 229 CLR 1,190.
353. But see ibid 194, where Kirby J refers to 'history, experience and authority', to 'textual foundation[s]', to the 'structure' and 'federal character' of the Constitution and to its 'overall expression and design'.
354. Kirby J made sure to acknowledge the expansive judicial interpretation that the corporations power had received over the years, beginning with the Concrete Pipes Case: see Work Choices Case (2006) 229 CLR 1, 205.
355. Work Choices Case (2006) 229 CLR 1, 205.
356. See Commonwealth of Australia Constitution Act 1900 (Imp) 63 & 64 Vict, c 12, preamble, s 3.