States challenge to Australian Work Choices Act begins

Thursday, May 4, 2006

The High Court challenge against the Australian federal government’s Work Choices legislation has begun in Canberra today. The challenge was initiated by the governments of New South Wales, Western Australia, South Australia, Queensland and Victoria and joined by the Australian Workers Union and Unions NSW.

The states claim that the legislation, passed by parliament in December last year, is unconstitutional. The federal government will argue that the legislation is permitted under Section 51(xx) of the Australian Constitution, commonly known as the “corporations powers”. The states argue that this section was never intended to be used for industrial arbitration.

Today, the court heard New South Wales’ challenge to the laws. Solicitor-general of NSW, Michael Sexton, SC, said that the legislation would have been considered unconstitutional since federation over 100 years ago. He questioned whether or not the authors of Australia’s constitution intended for the corporations provisions to extend to employees.

“What we do say is that this legislation would have been considered beyond a commonwealth power for most of the last century” he told the court.

Another lawyer for New South Wales, Bret Walker, SC, said states had been given the power of industrial relations, not the commonwealth government.

Some of the submissions made by New South Wales were attacked by Justice Haynes, one of the seven High Court judges presiding over the case, described the submission as being sloppy and ill-prepared.

Justice Haynes said that the definitions in the constitution need to be read in context of the 1890s, which were boom and bust times for corporations in Australia. He said that today, corporations are different to in the past. He also said that the authors would have been aware that there could be changes in the way the constitution was interpreted.

The premier of Queensland, Peter Beattie is concerned that if the states lose their case that the powers between the states and commonwealth would need to be revised.

“We will need a constitutional convention to reshape the powers between the states and the Commonwealth” he said.