Work Choices Case
THE WORK CHOICES CASE:
A shift in federal balance?
A need to confine the corporations power?
I INTRODUCTION
The submissions of the Australian Federal Government that the Workplace Relations Act 1996, amended by the Workplace Relations Amendment (Work Choices) Act 2005 was constitutionally valid prevailed with a majority of 5:2 by the High Court of Australia.1 This High Court decision inaugurated a shift of legislative power from the States to the Commonwealth.2 Since officially coming into effect as of 27 March 2006, the Work Choices Act has been the most comprehensive reformation in Australia in nearly a century, constantly sparking matters of controversy. 3
In the vision of Sir Samuel Griffith, principal author of the Australian Constitution, the notion of a federal balance is known as ‘coordinate federalism’. 4 This means that the Commonwealth and the States are not subordinate to each other, with the design of allowing both governing authorities to execute their responsibilities without intervention of the other. 5
1 Michael Johnston, ‘A Simplified National System?’ (2006) 15 (2) Polemic 2006 1, 1-2 <http://search.informit.com.au.ezproxy.lib.unimelb.edu.au/fullText;dn=20070322;res=AGISPT> at 12 April 2007.
2 Joe Catanzariti, High Court Holds Work Choices Valid, (2006) 12 (8) Employment Law Bulletin December 2006 81.
3 Iain Ross, John Trew and Tim Sharard, Bargaining Under Work Choices (2006) 1-3.
4 Leslie Zines, The High Court and the Constitution (4th ed, 1997) 1.
5 Tony Blackshield and George Williams, Australian Constitutional Law and Theory: Commentary and Materials (4th ed, 2006) 296.
The concept of an ideal federal balance can never be established, as there are no definite answers. 6 Likewise, there is no certainty at the scope of s 51 (xx) of the Constitution. 7
With reference to the High Court’s interpretation of the ‘federal balance’ in the Work Choices Case, the keystone of this essay would be the argument that there has
A shift in federal balance?
A need to confine the corporations power?
I INTRODUCTION
The submissions of the Australian Federal Government that the Workplace Relations Act 1996, amended by the Workplace Relations Amendment (Work Choices) Act 2005 was constitutionally valid prevailed with a majority of 5:2 by the High Court of Australia.1 This High Court decision inaugurated a shift of legislative power from the States to the Commonwealth.2 Since officially coming into effect as of 27 March 2006, the Work Choices Act has been the most comprehensive reformation in Australia in nearly a century, constantly sparking matters of controversy. 3
In the vision of Sir Samuel Griffith, principal author of the Australian Constitution, the notion of a federal balance is known as ‘coordinate federalism’. 4 This means that the Commonwealth and the States are not subordinate to each other, with the design of allowing both governing authorities to execute their responsibilities without intervention of the other. 5
1 Michael Johnston, ‘A Simplified National System?’ (2006) 15 (2) Polemic 2006 1, 1-2 <http://search.informit.com.au.ezproxy.lib.unimelb.edu.au/fullText;dn=20070322;res=AGISPT> at 12 April 2007.
2 Joe Catanzariti, High Court Holds Work Choices Valid, (2006) 12 (8) Employment Law Bulletin December 2006 81.
3 Iain Ross, John Trew and Tim Sharard, Bargaining Under Work Choices (2006) 1-3.
4 Leslie Zines, The High Court and the Constitution (4th ed, 1997) 1.
5 Tony Blackshield and George Williams, Australian Constitutional Law and Theory: Commentary and Materials (4th ed, 2006) 296.
The concept of an ideal federal balance can never be established, as there are no definite answers. 6 Likewise, there is no certainty at the scope of s 51 (xx) of the Constitution. 7
With reference to the High Court’s interpretation of the ‘federal balance’ in the Work Choices Case, the keystone of this essay would be the argument that there has
Bibliography: 1. Articles/Books/Reports Barker, David, Essential Australian Law, (2nd ed 2005) Booker, Keven, Glass, Arthur and Watt, Robert, Federal Constitutional Law: An Introduction (2nd ed, 1998) Buckland, Andrew and Bennett, David, ‘The Work Choices Decision Litigation Notes’ (2006) 14 Australian Government Solicitor 1, 2 Castan, Melissa and Joseph, Sarah , Federal Constitutional Law: a Contemporary View (2nd ed, 2006) Catanzariti, Joe, High Court Holds Work Choices Valid, (2006) 12 (8) Employment Law Bulletin December 2006 81 Cook, Catriona et al, Laying Down the Law (6th ed, 2005) Coper, Michael and Williams, George, How Many Cheers for Engineers? (1997) Coper, Michael, Encounters with the Australian Constitution (1978) Evan, Simon et al, Work Choices: the High Court Challenge (1st ed, 2007) H P Lee and Winterton, George, Australian Constitutional Perspectives (1992) Heilbronn, Gary et al, Introducing the Law, (6th ed 2006) Hsu, John, ‘Work Choices Legislation Upheld by high Court’ (2006) Batallion Legal 1, 1-2 < http://www.batallion.com.au/Web-workchoices.pdf> at 9 April 2007 McCallum, Ron, ‘The Australian Constitution and the Shaping of Our Federal and State Labour Laws’ (2005) 10 (1) Deakin law Review Parkinson, Patrick , Tradition and Change in Australian Law, (2nd ed, 2001) Parkinson, Patrick, Tradition and Change in Australian Law, (3rd ed, 2005) Ross, Iain, Trew, John and Sharard, Tim, Bargaining Under Work Choices (2006) Williams, George, ‘The Constitutional and a National Industrial Relations Regime’ (2005) 10 (1) Deakin law Review Winterton, George et al, Australian Federal Constitutional Law Commentary and Materials, (1st ed, 1999) Work Choices: the High Court Challenge <http://www.federationpress.com.au/pdf/HighCourtChallenge%20(21Nov).pdf> at 5 April 2007 Zines, Leslie, The High Court and the Constitution (4th ed, 1997) 2. Case Law Commonwealth v Tasmania (Tasmanian Dam Case) (1983) 158 CLR 1 Jumbunna Coal Mine, No Liability v Victorian Coal Miners Association (1908) 6 CLR 309 New South Wales & Ors v Commonwealth (2006) 52 HCA 184 New South Wales v Brewery Employés Union of New South Wales (1908) 6 CLR 469 New South Wales v Commonwealth (Incorporation Case) (1990) 169 CLR 482 Re Dingjan; Ex parte Wagner (1995) 183 CLR 323 3. Legislation