9. Constitutional litigation and the Commonwealth^[1]

As a rule, Australians tend to be ignorant, perhaps blissfully so, of the existence, terms and effect of the Constitution of the Commonwealth of Australia. A 1987 survey indicated that only about half of the population was aware that Australian had a written constitution.^[2] A 1994 survey of people aged fifteen years or over indicated that only 13 per cent felt that they knew something about what the constitution covered and only 18 per cent actually showed some degree of understanding of what the constitution covered.^[3]

Of course, participants in, and keen observers of, Australian politics would be well aware of the potential impacts of the courts’ decisions in constitutional cases. An obvious example of a case that has attracted considerable attention in this community is the High Court’s decision in the Work Choices case. This decision has stimulated vigorous debate on the future of the federal arrangement provided for by the constitution. However, the manner by which the disputes that give rise to these decisions are conducted in the courts is, perhaps, not well understood by many politicians and political scientists, let alone lawyers. Potentially, the topic is both very broad and very technical. However, I will confine myself to outlining the manner by which the Commonwealth participates in, and thus influences the outcome of, constitutional cases before the courts. When I refer to ‘the Commonwealth’ I refer, in a general sense, to the Australian Government. Specifically, my essay will address the following questions: