The interaction between national constitutions and transnational sources of law (foreign and international) has generated quite an active disagreement in the United States about what these bodies of law have to do with each other. This paper will explore these debates and the postures towards transnational law and its role in domestic constitutional adjudication which they express. It will identify three postures — of convergence, of resistance, and of engagement — that are manifest in the opinions of different justices of important high courts around the world, and will argue for a posture of ‘engagement’ at least in established constitutional systems like that of the United States.

There is no doubt that the Australian Competition and Consumer Commission ('ACCC’) has provoked very strong opinions among big business in Australia. This criticism reached its height in 2002 and 2003, at the end of Professor Allan Fels’ period as Chairman of the Commission. At this time, the Chief Executive Officers of a number of Australia's biggest companies regularly and publicly criticised the ACCC, and Professor Fels himself, for being ‘unfair, unjust and immoral', and having no ‘line of accountability at all.’ The ACCC's behaviour was criticised for being ‘a corruption of administration of the Trade Practices Act', ‘false and misleading behaviour on the part of the cop', and for using publicity ‘in a way that damages companies before they are proven guilty'. One chief executive said that ‘Fels’ use of the media … smacks of the Gestapo.’ Another called Fels a ‘smiling assassin’ who had inflicted ‘irreparable harm to the Australian economy.’

Many of the terms the Constitution uses to define Commonwealth legislative powers are legal terms or at least terms well-known to the law with legally defined meanings in 1900. The ordinary meaning of some of these terms is dependent on, and derived from, their legal meaning. Therefore, it is reasonable to assume that their constitutional meaning is consistent with their legal meaning. This poses a problem: what is the legal meaning of a legal term? One answer may be that the legal terms are shorthand for the bundle of legal rights and duties and practices associated with that term. On this view, for example, copyright is shorthand for the legal rules and practices which make up the law of copyright.

In December 2006, the Civil Partnerships Bill 2006 (ACT) was introduced in the ACT Legislative Assembly that would extend to same-sex (and heterosexual) couples who have declared their commitment to each other by entering a ‘civil partnership’ the legal consequences that ACT laws attach to ‘domestic partnerships’ (what other Australian jurisdictions call ‘de facto relationships’). The Bill was introduced in response to the Howard Government's disallowance, in June 2006, of the Civil Unions Act 2006 (ACT) ('Civil Unions Act’), passed by the ACT Legislative Assembly almost exactly one month before. The Civil Unions Act had created an institution paralleling heterosexual marriage but open to both same-sex and different-sex couples. A civil union was similar to marriage both to the extent that a ceremony was required for it to be brought into existence and because a validly contracted civil union was to be treated like marriage for the purposes of all ACT laws.

Australians, it is said, live in a representative democracy. As citizens of that democracy they are ultimately able to hold their political representatives to account via the electoral process. In the interim between electoral episodes they form the views upon which that holding to account will be based. At the same time, they participate in and evaluate governmental processes in a variety of ways, some of them statutory, some of them via the Parliament of the day, and many of them via the media, lobby organisations, interest groups and other proxies.

Informational transparency is central to this holding to account. This was famously recognised by the High Court in the so called ‘freedom of political communication’ cases in 1992. Those cases constituted the first explicit judicial recognition that ‘the sovereign power which resides in the people [and] is exercised on their behalf by their representatives’ was more than simply a political doctrine, but was in fact a constitutional fundamental capable of limiting, as it did in those cases, Commonwealth legislative power.

The recent High Court decision of XYZ v Commonwealth (‘XYZ’) has strengthened the aura of uncertainty surrounding the concept of ‘international concern’ and its role in widening the application of s 51(xxix) of the Commonwealth Constitution. This article considers the XYZ decision in light of past judicial exegesis and addresses what may lie ahead for this aspect of the external affairs power.

‘International concern’ has, for some years, hovered as a possible basis for the subject matter of legislation to attract the Commonwealth external affairs power, alongside other grounds such as the implementation of an international convention or recommendation, geographical externality, relations with other countries or customary international law. The head of power relies upon such grounds to colour a piece of Commonwealth legislation with the hue of ‘external affairs'. This ‘colouring’ therefore enables a subject matter to be within the Commonwealth Parliament's legislative competence.

The Independent Contractors Act 2006 (Cth) ('IC Act’) and the Workplace Relations Legislation Amendment (Independent Contractors) Act 2006 (Cth) ('Amendment Act’) implement further key aspects of the federal government's workplace relations policy, following the passage of the Workplace Relations Amendment (Work Choices) Act 2005 (Cth) ('Work Choices Act’). The Work Choices Act substantially amended the Workplace Relations Act 1996 (Cth) ('WR Act’), introducing a national workplace relations system for employers who are (in the main) ‘constitutional corporations’ or federal public sector departments or agencies, and their employees. Through the Work Choices Act, the government also: transferred responsibility for minimum wage-setting from the Australian Industrial Relations Commission ('AIRC’) to a new body, the Australian Fair Pay Commission; provided five minimum statutory employment conditions for all workers covered by the national system; removed much of the procedural regulation relating to workplace agreements and substantive requirements such as the ‘no disadvantage’ test; and exempted businesses with 100 employees or less from unfair dismissal regulation.