Macrossans Lawyers Brisbane law firm

The High Court of Australia has dismissed challenges by various State governments and unions and ruled 5 to 2 that the Commonwealth does have the power to make the new workplace laws. 

The Court handed down its decision on 14 November 2006, rejecting submissions from the New South Wales, Western Australian, South Australian, Queensland and Victorian governments, the Australian Workers Union and Unions NSW that the Commonwealth had no constitutional power to enact the Workplace Relations Amendment (WorkChoices) Act.

The Court upheld the Federal Government’s reliance on the corporations power of the Constitution (Section 51), which gives the Commonwealth Parliament power to make laws with respect to trading or financial corporations.

Previously, federal industrial relations laws have relied on a different section of the Constitution – the power of the Commonwealth to make laws with respect to industrial disputes extending beyond the limits of any one state.

The corporations power may open new doors for the Commonwealth in other areas, as the High Court’s decision makes it clear that any law directed to corporations, or that creates rights or immunities for corporations, is valid.

In one of the two dissenting judgements, Justice Kirby warned against the wider implications of the majority's approach, stating its "unnuanced interpretation" of the corporations power "has the potential greatly to alter the nation's federal balance", and risks the "destabilising intrusion of direct federal lawmaking" into areas that have been controlled by the states since Federation.

WorkChoices aims to create a national industrial system that overrides industrial relations systems in the states, which currently exist in every state except Victoria.  While a change of Federal Government may impact on the contents of the legislation, Federal Labor has announced that it intends to continue with a single unified industrial relations system if elected.  However, state Labor leaders have rejected suggestions they abandon the remainder of the state-based system in favour of a single national system of industrial relations.

For further information, please contact Rachel Drew on (07) 3292 9717 or email
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