Work Choices High Court Challenge

The drama of Work Choices has extended beyond the passage of the legislation through Parliament in December 2005. The challenges to that legislation in the High Court have been a major milestone, both for the legislation and in the interpretation of the corporations power in the Commonwealth Constitution.

Commentary on High Court Decision

The High Court decision can be approached from various perspectives. Thomson Reuters has compiled shorter pieces below to give you a taste of commentators’ responses. A more detailed overview can be found in Work Choices: The High Court Challenge.

Reading the decision Jeffrey Phillips SC shares his thoughts on reading Commonwealth v NSW [2006] HCA 52 in Work Choices gets the High Court Nod.

Setting the scene: Originally published in Public Law Review, but updated to reflect the renumbering of the Workplace Relations Act, this article by Louise Clegg examines the possibility of a national uniform industrial relations system. It makes for interesting reading in light of the High Court’s decision.

Background to Proceedings

On 27 March 2006, the Workplace Relations Amendment (Work Choices) Act 2005 (Cth) came into operation. Relying largely on the corporations power in s 51(xx) of the Commonwealth Constitution. The amending Act is expressed to apply to employers who are constitutional corporations, with that defined to be”a corporation to which paragraph 51(xx) of the Constitution applies”.

On 21 December, a week after assent to the amending Act, the State of NSW brought the first proceedings challenging it. At the heart of that claim, and various subsequent proceedings, was that the amendments extend beyond the powers granted under the Constitution. The Commonwealth argued that none of the amendments are invalid.

The High Court directed that all matters be heard together, with submissions made by the plaintiffs (NSW, WA, SA, Qld, the AWU and Unions NSW), the Commonwealth and the interveners. The interveners were (in all matters) the NT, the ACT and TAS, and (in matters regarding the plaintiff States) Victoria.

The decision of the High Court was handed down at 10:15am on Tuesday, 14 November 2006.

May 2006 High Court Hearings

Transcripts of State of New South Wales v Commonwealth (AKA Workplace Relations Challenge) [2006] HCA Trans 235:

Preliminary to the main hearing:

A potential second challenge to Work Choices came to an end on 16 November 2006 when the maritime unions discontinued their challenge in light of the majority finding in New South Wales v Commonwealth [2006] HCA 52.

Related transcripts:

More Information