The High Court ruled this morning that the Federal Government’s Workplace Relations Amendment (Work Choices) Act 2005 was constitutionally valid. The law was challenged by the (Labor) governments of all the States and Territories and some unions including the Australian Workers’ Union and Unions NSW.

The decision was a 5-2 majority in favour of the Commonwealth. Gleeson CJ, Gummow, Hayne, Heydon and Crennan JJ wrote the joint majority judgment whilst Callinan J (surprisingly) and Kirby J (predictably) wrote separate dissents.

The judgments cover over 500 pages pages including 1,227 footnotes. This book-length decision is recommended to everyone who wants to be bored to death.

As far as I am aware, nobody seriously thought the Labor states would win, but this did not prevent them suing. The whole thing was little more than a lawyers’ picnic at the taxpayers’ expense. At the bar table were 39 barristers (including 16 silks) and God knows how many solicitors. It must have cost us millions.

The dissents were interesting. It would be an exaggeration to say that Kirby is far left, Callinan is far right and the majority are in the middle, but it is worth a thought.

In brief summary, in December 2005, the (Liberal) Federal Government passed the Workplace Relations Amendment (Work Choices) Act 2005 (the new Act) which substantially amended the existing Workplace Relations Act 1996 (the old Act).

All Commonwealth legislation must be supported by a power under the Constitution. Remember also that if the Commonwealth does not have the power, then the States retain it as a residual power. So in one sense (and particularly for Callinan) this was a States’ rights case.

The old Act was basically supported by the conciliation and arbitration power (s.51.35). The new Act shifted the constitutional underpinning to the corporations power (s. 51.20). One would conclude from this that the Government’s legal advice probably was that the conciliation and arbitration power would not support the major IR reforms that Howard wanted to push through while he had a Senate majority.

As Kirby put it, the issue concerned “the ambit of the corporations power to sustain a comprehensive federal law on industrial (or workplace) relations” (465).

In the end, the majority held that the law was valid. Howard won. The issue will now be settled in the ballot box.

Peter Fray

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